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CLOSED,APPEAL,HABEAS,ECF

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18-cv-10683-AJN

Vazquez Perez v. Decker et al Assigned to: Judge Alison J. Nathan Cause: 28:2241in Habeas Corpus: INS
Petitioner Uriel Vazquez Perez on his own behalf and on behalf of others similarly situated

Date Filed: 11/15/2018 Date Terminated: 11/30/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant
represented by Peter L. Markowitz Cardozo Immigration Justice Clinic 55 Fifth Avenue New York, NY 10003 (212)-790-0340 Fax: (212)-790-0256 Email: pmarkowi@yu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Hannah Robbins Immigration Justice Clinic 55 Fifth Ave Ste 11th Floor New York, NY 10003 212-790-0870 Fax: 212-790-0256

Email: hannah.robbins@yu.edu ATTORNEY TO BE NOTICED
Jacqueline Pearce Make the Road NY 92-10 Roosevelt Ave Jackson Heights, NY 11372 516-270-6216 Email: jacqueline.pearce@yu.edu TERMINATED: 07/30/2019
Jennifer Rolnick Borchetta The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718-838-7878 Fax: 718-665-0100 Email: jennb@bronxdefenders.org ATTORNEY TO BE NOTICED
Johanna Beth Steinberg The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718-508-3447 Fax: 718-838-7819 Email: johannas@bailproject.org TERMINATED: 07/24/2019
Lindsay Cotten Nash Benjamin N. Cardozo School of Law 55 Fifth Avenue Ste 1108 New York, NY 10003 646-593-6538 Email: lindsay.nash@yu.edu ATTORNEY TO BE NOTICED
Mauricio Eduardo Norona Cardozo School of Law 55 Fifth Ave 11th Floor Room 1137 New York, NY 10003 212-790-0213 Email: mauricio.norona@yu.edu

ATTORNEY TO BE NOTICED
Niji Jain The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718-838-7878 Fax: 718-665-0100 Email: nijij@bronxdefenders.org ATTORNEY TO BE NOTICED
Paige Austin Make the Road New York 301 Grove St. Brooklyn, NY 11237 718-418-7690 Email: paustin@nyclu.org TERMINATED: 02/15/2019
Robert Andrew Hodgson New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212)-607-3317 Email: rhodgson@nyclu.org ATTORNEY TO BE NOTICED

V. Respondent Thomas Decker in his official capacity as Field Office Director, U.S. Immigration and Customs Enforcement
Respondent Ronald D. Vitiello in his official capacity as the Acting

represented by Brandon Matthew Waterman United States Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212)-637-2741 Email: brandon.waterman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address)

Director for U.S. Immigration and CUstoms Enforcement
Respondent Kirstjen Nielsen in her official capacity as Secretary, U.S. Department of Homeland Security
Respondent James McHenry in his official capacity as Director of the Executive Office For Immigration Review
Respondent Matthew G. Whitaker in his official capacity as the Acting Attorney General of the United States
Respondent United States Department of Homeland Security
Respondent United States Immigration and Customs Enforcement
Respondent United States Department of Justice
Respondent Executive Office For Immigration Review

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Carl E. DuBois in his official capacity as the Sheriff of Orange County and the official in charge of the Orange County Correctional Facility

represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/15/2018 11/15/2018 11/15/2018 11/15/2018 11/15/2018
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# Docket Text
1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number ANYSDC15921286)Document filed by Uriel Vazquez Perez.(Markowitz, Peter) (Entered: 11/15/2018)
2 CIVIL COVER SHEET filed. (Markowitz, Peter) (Entered: 11/15/2018)
3 MOTION to Certify Class . Document filed by Uriel Vazquez Perez.(Markowitz, Peter) (Entered: 11/15/2018)
4 MEMORANDUM OF LAW in Support re: 3 MOTION to Certify Class . . Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
5 DECLARATION of Robert Hodgson in Support re: 3 MOTION to Certify Class .. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Exh. A- Hausman Decl., # 2 Exhibit Exh. B- Saenz Decl., # 3 Exhibit Exh. C- EOIR IJ Bench Book, # 4 Exhibit Exh. D- New Yorker Article, # 5 Exhibit Exh. E- Vera NYIFUP Evaluation, # 6 Exhibit Exh. F- DHS OIG Press Release, # 7 Exhibit Exh. GNorthJersey.com Article, # 8 Exhibit Exh. H- Vazquez Perez Decl., # 9 Exhibit Exh. I- Dunn Decl.)(Markowitz, Peter) (Entered: 11/15/2018)
6 NOTICE OF APPEARANCE by Peter L. Markowitz on behalf of Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
7 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Thomas Decker, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) Modified on 11/19/2018 (pc). (Entered: 11/15/2018)
8 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Department of Homeland Security, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) Modified on 11/19/2018 (pc). (Entered: 11/15/2018)

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9 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Department of Justice, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) Modified on 11/19/2018 (pc). (Entered: 11/15/2018)
10 REQUEST FOR ISSUANCE OF SUMMONS as to Carl E. DUBOIS, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
11 REQUEST FOR ISSUANCE OF SUMMONS as to EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
12 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to IMMIGRATION AND CUSTOMS ENFORCEMENT, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) Modified on 11/19/2018 (pc). (Entered: 11/15/2018)
13 REQUEST FOR ISSUANCE OF SUMMONS as to James McHENRY, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
14 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Kirstjen NIELSEN, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) Modified on 11/19/2018 (pc). (Entered: 11/15/2018)
15 REQUEST FOR ISSUANCE OF SUMMONS as to Ronald D. VITIELLO, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
16 REQUEST FOR ISSUANCE OF SUMMONS as to Matthew G. WHITAKER, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/15/2018)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Peter L. Markowitz. The party information for the following party/parties has been modified: Thomas Decker, Department of Homeland Secuirty, Department of Justice, Carl E. DuBois, Immigration and Customs Enforcement, James McHenry, Kirstjen Nielsen, Uriel Vazquez Perez, Ronald D. Vitiello, Matthew G. Whitaker. The information for the party/parties has been modified for the following reason/reasons:

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party name contained a typographical error; party text was omitted. (pc) (Entered: 11/16/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Peter L. Markowitz. The following case opening statistical information was erroneously selected/entered: County code New York; Fee Status code due (due);. The following correction(s) have been made to your case entry: the County code has been modified to Orange; the Fee Status code has been modified to pd (paid);. (pc) (Entered: 11/16/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Alison J. Nathan. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 11/16/2018)
Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) (Entered: 11/16/2018)
Case Designated ECF. (pc) (Entered: 11/16/2018)
17 NOTICE OF APPEARANCE by Paige Austin on behalf of Uriel Vazquez Perez. (Austin, Paige) (Entered: 11/16/2018)
18 NOTICE OF APPEARANCE by Jacqueline Pearce on behalf of Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 11/19/2018)
19 ELECTRONIC SUMMONS ISSUED as to James McHenry. (pc) (Entered: 11/19/2018)
20 ELECTRONIC SUMMONS ISSUED as to Matthew G. Whitaker. (pc) (Entered: 11/19/2018)
21 ELECTRONIC SUMMONS ISSUED as to Carl E. DuBois. (pc) (Entered: 11/19/2018)
22 ELECTRONIC SUMMONS ISSUED as to Ronald D. Vitiello. (pc) (Entered: 11/19/2018)
23 ELECTRONIC SUMMONS ISSUED as to Executive Office For Immigration Review. (pc) (Entered: 11/19/2018)

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***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Peter L. Markowitz to RE-FILE Document No. 8 Request for Issuance of Summons, 14 Request for Issuance of Summons, 7 Request for Issuance of Summons, 9 Request for Issuance of Summons, 12 Request for Issuance of Summons,. The filing is deficient for the following reason(s): the PDF attached to the docket entry for the issuance of summons is not correct; Party name on summons does not exactly match what is listed on the petition caption title. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process select the correct filer/filers - and attach the correct summons form PDF. (pc) (Entered: 11/19/2018)
24 REQUEST FOR ISSUANCE OF SUMMONS as to Thomas Decker, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 11/20/2018)
25 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Homeland Security, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 11/20/2018)
26 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Justice, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 11/20/2018)
27 REQUEST FOR ISSUANCE OF SUMMONS as to United States Immigration and Customs Enforcement, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 11/20/2018)
28 REQUEST FOR ISSUANCE OF SUMMONS as to Kirstjen Nielsen, re: 1 Petition for Writ of Habeas Corpus. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 11/20/2018)
29 NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Uriel Vazquez Perez. (Dunn, Christopher) (Entered: 11/20/2018)
30 ELECTRONIC SUMMONS ISSUED as to Thomas Decker. (dnh) (Entered: 11/21/2018)
31 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security. (dnh) (Entered: 11/21/2018)
32 ELECTRONIC SUMMONS ISSUED as to United States Department of Justice. (dnh) (Entered: 11/21/2018)

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33 ELECTRONIC SUMMONS ISSUED as to United States Immigration and Customs Enforcement. (dnh) (Entered: 11/21/2018)
34 ELECTRONIC SUMMONS ISSUED as to Kirstjen Nielsen. (dnh) (Entered: 11/21/2018)
35 NOTICE OF APPEARANCE by Robert Andrew Hodgson on behalf of Uriel Vazquez Perez. (Hodgson, Robert) (Entered: 11/26/2018)
36 FIRST MOTION Leave to Appear as Law Students . Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Law Student Intern Appearance Form for Alberto Casadevall, # 2 Exhibit Law Student Intern Appearance Form for Daynelis Vargas, # 3 Exhibit Law Student Intern Appearance Form for Jessica Kulig, # 4 Exhibit Law Student Intern Appearance Form for Kathleen Wahl)(Pearce, Jacqueline) (Entered: 11/30/2018)
37 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of Uriel Vazquez Perez. (Borchetta, Jennifer) (Entered: 12/03/2018)
38 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 12/03/2018)
39 FIRST LETTER MOTION for Leave to File Excess Pages addressed to Judge Alison J. Nathan from Peter L. Markowitz dated December 3, 2018. Document filed by Uriel Vazquez Perez.(Markowitz, Peter) (Entered: 12/03/2018)
40 NOTICE OF APPEARANCE by Niji Jain on behalf of Uriel Vazquez Perez. (Jain, Niji) (Entered: 12/04/2018)
41 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. United States Department of Justice served on 11/26/2018, answer due 1/25/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
42 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. Executive Office For Immigration Review served on 11/23/2018, answer due 1/22/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
43 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. United States Department of Homeland Security

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served on 11/26/2018, answer due 1/25/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
44 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. United States Immigration and Customs Enforcement served on 11/26/2018, answer due 1/25/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
45 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. Thomas Decker served on 11/23/2018, answer due 1/22/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
46 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. James McHenry served on 11/23/2018, answer due 1/22/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
47 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. Kirstjen Nielsen served on 11/26/2018, answer due 1/25/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
48 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. Ronald D. Vitiello served on 11/26/2018, answer due 1/25/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
49 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. Matthew G. Whitaker served on 11/26/2018, answer due 1/25/2019. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/04/2018)
56 MEMO ENDORSEMENT granting 36 Motion. ENDORSEMENT: I authorize this student: (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Alison J. Nathan on 12/3/2018) (cf) (Entered: 12/07/2018)
50 MOTION for Preliminary Injunction . Document filed by Uriel Vazquez Perez.(Markowitz, Peter) (Entered: 12/05/2018)
51 MEMORANDUM OF LAW in Support re: 50 MOTION for Preliminary Injunction . . Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 12/05/2018)

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52 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of Uriel Vazquez Perez. (Steinberg, Johanna) (Entered: 12/05/2018)
53 FILING ERROR - DEFICIENT DOCKET ENTRY (SEE 59 Declaration) - DECLARATION of Alberto A. Casadevall in Support re: 50 MOTION for Preliminary Injunction .. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Ex. A-Saenz Decl., # 2 Exhibit Ex. B-Redman Decl., # 3 Exhibit Ex. C-Burr Decl., # 4 Exhibit Ex. D-Vera Eval., # 5 Exhibit Ex. E-Michel Decl., # 6 Exhibit Ex. F-Busse Decl., # 7 Exhibit Ex. G-Hausman Decl., # 8 Exhibit Ex. H-Alzate Decl., # 9 Exhibit Ex. I-Nembhard Decl., # 10 Exhibit Ex. J-Quarey Decl., # 11 Exhibit Ex. K-IJ Benchbook, # 12 Exhibit Ex. L-Form I-200, # 13 Exhibit Ex. M-NTA, # 14 Exhibit Ex. N-Form I-286, # 15 Exhibit Ex. O-Rosenberg Article, # 16 Exhibit Ex. P-Vazquez Perez Decl., # 17 Exhibit Ex. Q-Navarro Decl., # 18 Exhibit Ex. R-Imm. Ct. Prac. Manual, # 19 Exhibit Ex. S-DHS ICE FY 2018 Budget Overview)(Markowitz, Peter) Modified on 12/21/2018 (db). (Entered: 12/05/2018)
54 CERTIFICATE OF SERVICE of Summons and Petition for Writ of Habeas Corpus. Carl E. DuBois served on 12/4/2018, answer due 12/26/2018. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 12/05/2018)
55 ORDER granting 39 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge Alison J. Nathan on 12/5/2018) (cf) (Entered: 12/06/2018)
Set/Reset Deadlines: Replies due by 1/15/2019. (cf) (Entered: 12/06/2018)
57 NOTICE OF APPEARANCE by Lindsay Cotten Nash on behalf of Uriel Vazquez Perez. (Nash, Lindsay) (Entered: 12/10/2018)
58 AFFIDAVIT OF SERVICE of Summons and Petition for Writ of Habeas Corpus served. Service was made by MAIL. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Summonses, # 2 Exhibit Class Petition for Writ of Habeas Corpus and Class Complaint for Declaratory and Injunctive Relief, # 3 Exhibit Electronic Case Filing Rules and Instructions, # 4 Exhibit Individual Rules of the Honorable Alison J. Nathan)(Pearce, Jacqueline) (Entered: 12/13/2018)
59 DECLARATION of Alberto A. Casadevall (CORRECTED) in Support re: 50 MOTION for Preliminary Injunction .. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Ex. A-Saenz Decl., # 2 Exhibit Ex. B-Redman Decl., # 3 Exhibit Ex. C-Burr Decl., # 4 Exhibit Ex. D-Vera Eval., # 5 Exhibit Ex. E-Michel Decl., # 6 Exhibit Ex. F-Busse Decl., # 7 Exhibit Ex. G-Hausman Decl.,

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# 8 Exhibit Ex. H-Alzate Decl., # 9 Exhibit Ex. I-Nembhard Decl., # 10 Exhibit Ex. J-Quarey Decl. (CORRECTED), # 11 Exhibit Ex. K-IJ Benchbook, # 12 Exhibit Ex. L-Form I-200, # 13 Exhibit Ex. M-NTA, # 14 Exhibit Ex. N-Form I-286, # 15 Exhibit Ex. O-Rosenberg Article, # 16 Exhibit Ex. P-Vazquez Perez Decl., # 17 Exhibit Ex. Q-Navarro Decl., # 18 Exhibit Ex. R-Imm. Ct. Prac. Manual, # 19 Exhibit Ex. SDHS ICE FY 2018 Budget Overview)(Pearce, Jacqueline) (Entered: 12/20/2018)
60 STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (rjm) (Entered: 01/02/2019)
Case Stayed (rro) (Entered: 01/14/2019)
61 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - FIRST MOTION to Lift Stay of Proceedings . Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit DOJ FY 2019 Contingency Plan, # 2 Exhibit Martinez-Sanchez v. Nielsen Order, # 3 Exhibit Reyes v. Bonnar Order, # 4 Exhibit Garcia Ramirez v. U.S. Immigration and Custom Enforcement Order, # 5 Exhibit Da Silva v. Nielsen Order, # 6 Exhibit Lucas R. v. Azar Order, # 7 Exhibit DHS Procedures Relating to a Lapse in Appropriations)(Nash, Lindsay) Modified on 1/31/2019 (db). (Entered: 01/10/2019)
62 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated January 10, 2019 re: The government's opposition to the petitioner's letter motion to lift the stay (Dkt. No. 61). Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 01/10/2019)
63 REPLY to Response to Motion re: 61 FIRST MOTION to Lift Stay of Proceedings . . Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Dembele v. Decker Order)(Nash, Lindsay) (Entered: 01/11/2019)
64 ORDER: On January 10, 2019, Petitioner asked the Court to lift the stay and order the briefing on the preliminary injunction motion to proceed. Dkt. No. 61. Respondents oppose this request. Dkt. No. 62. Having considered the parties' filings and the subject matter of this action, the Court concludes that a stay of indefinite duration is unwarranted. Petitioner's motion to lift the stay is hereby granted. Respondent's opposition to Petitioner's motion for a preliminary injunction is due on

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or before January 28, 2019, and Respondent's reply is due on or before February 6, 2019. (Signed by Judge Alison J. Nathan on 1/14/2019) (mro) (Entered: 01/15/2019)
Set/Reset Deadlines: Responses due by 1/28/2019 Replies due by 2/6/2019. (mro) (Entered: 01/15/2019)
65 LETTER MOTION for Leave to File Excess Pages addressed to Judge Alison J. Nathan from Brandon M. Waterman dated January 24, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 01/24/2019)
66 ORDER granting 65 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/25/2019) (cf) (Entered: 01/25/2019)
67 DECLARATION of ACIJ Daniel Daugherty in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Exhibit NYIFUP Letter)(Waterman, Brandon) (Entered: 01/28/2019)
68 DECLARATION of Benjamin McDowell in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 01/28/2019)
69 DECLARATION of AFOD Yvette A. Tay-Taylor in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 01/28/2019)
70 DECLARATION of SDDO Waveney P. Boyd in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review,

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James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 01/28/2019)
71 MEMORANDUM OF LAW in Opposition re: 50 MOTION for Preliminary Injunction . . Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 01/29/2019)
72 CONSENT LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Alison J. Nathan from Brandon M. Waterman dated January 29, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 01/29/2019)
73 ORDER granting 72 Letter Motion for Extension of Time to File Response/Reply re 50 MOTION for Preliminary Injunction . So Ordered. (Replies due by 2/7/2019.) (Signed by Judge Alison J. Nathan on 1/30/19) (yv) Modified on 8/13/2019 (yv). (Entered: 01/31/2019)
74 NOTICE OF APPEARANCE by Hannah Robbins on behalf of Uriel Vazquez Perez. (Robbins, Hannah) (Entered: 02/06/2019)
75 REPLY MEMORANDUM OF LAW in Support re: 50 MOTION for Preliminary Injunction . . Document filed by Uriel Vazquez Perez. (Nash, Lindsay) (Entered: 02/07/2019)
76 DECLARATION of Kathleen Wahl in Support re: 50 MOTION for Preliminary Injunction .. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Ex. A-Saenz Decl., # 2 Ex. B-van Hemmen)(Nash, Lindsay) (Entered: 02/07/2019)
77 ORDER re: 50 MOTION for Preliminary Injunction . filed by Uriel Vazquez Perez. A hearing in the above-referenced action is hereby scheduled for March 6, 2019 at 3 :30 p.m. On or before February 20, 2019, the parties shall inform the Court whether either is seeking an evidentiary hearing on Petitioner's motion for a preliminary injunction, or whether they prefer to hold oral argument on the papers during that time. In addition, in its opposition to Petitioner's request to lift the stay of this matter, the Government informed the Court that Petitioner has received a hearing and been released on bond. See Dkt. No. 62; see also

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02/20/2019 02/21/2019

Dkt. No. 71, at 37 n. 15 (Government suggesting in opposition that Petitioner's claims are moot). On or before February 20, 2019, the Government shall inform the Court whether it takes the position that Petitioner's claims are moot. If the Government does intend to argue mootness, it shall provide support for its position at that time. Petitioner's response, if necessary, shall be due by February 27, 2019. SO ORDERED. (Status Conference set for 3/6/2019 at 03:30 PM before Judge Alison J. Nathan.) (Signed by Judge Alison J. Nathan on 2/12/2019) (kv) (Entered: 02/12/2019)
78 MOTION for Paige Parker Austin to Withdraw as Attorney For Petitioner-Plaintiff. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw as Attorney for Petitioner-Plaintiff)(Austin, Paige) (Entered: 02/13/2019)
79 ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY FOR PETITIONER-PLAINTIFF granting 78 Motion to Withdraw as Attorney: Paige Austin seeks leave to withdraw as attorney for the plaintiff-petitioner in this matter. As attorneys from the New York Civil Liberties Union, the Cardozo Immigration Justice Clinic, and The Bronx Defenders will continue to represent the petitioner-plaintiff in this matter, this Court concludes that the motion be granted. (Attorney Paige Austin terminated.) (Signed by Judge Alison J. Nathan on 2/14/2019) (jwh) (Entered: 02/15/2019)
80 CONSENT LETTER MOTION for Extension of Time of the deadlines in the Court's Order of February 12, 2019 (Doc. No. 77) addressed to Judge Alison J. Nathan from Brandon M. Waterman dated February 19, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 02/19/2019)
81 LETTER addressed to Judge Alison J. Nathan from Lindsay Nash dated 02/20/2019 re: February 12, 2019 Order. Document filed by Uriel Vazquez Perez.(Nash, Lindsay) (Entered: 02/20/2019)
82 ORDER granting 80 Letter Motion for Extension of Time. The extension request is hereby granted. The parties shall submit the filings requested in the Court's February 12, 2019 Order no later than February 27, 2019. Any response by Petitioner is due March 6, 2019. The conference is hereby adjourned to March 14, 2019, at 11 a.m. SO ORDERED. (Signed by Judge Alison J. Nathan on 2/20/2019) (kv) (Entered: 02/21/2019)

02/21/2019 02/27/2019 02/27/2019
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03/06/2019

Set/Reset Hearings: Status Conference set for 3/14/2019 at 11:00 AM before Judge Alison J. Nathan. (kv) (Entered: 02/21/2019)
83 LETTER addressed to Judge Alison J. Nathan from Lindsay Nash dated 02/27/2019 re: Orders of February 12 and 21, 2019. Document filed by Uriel Vazquez Perez.(Nash, Lindsay) (Entered: 02/27/2019)
84 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated February 27, 2019 re: The government's response to the Court's Order of February 12, 2019 (Doc. No. 77). Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 02/27/2019)
85 CONSENT LETTER MOTION for Leave to File Three Supplemental Declarations addressed to Judge Alison J. Nathan from Brandon M. Waterman dated February 27, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Supplemental Declartion of ACIJ Shiela McNulty, # 2 Supplemental Declaration of Benjamin McDowell, # 3 Supplemental Declaration of AFOD Yvette A. TayTaylor)(Waterman, Brandon) (Entered: 02/27/2019)
86 ORDER granting 85 Letter Motion for Leave to File Document. The Government's request to file the supplemental declarations is hereby granted. Plaintiff may file a response no later than March 8, 2019. SO ORDERED. (Signed by Judge Alison J. Nathan on 3/6/2019) (kv) (Entered: 03/06/2019)
87 DECLARATION of ACIJ Shiela McNulty providing factual update to Declaration of ACIJ Daniel Daugherty (Doc. No. 67) in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 03/06/2019)
88 DECLARATION of Benjamin McDowell providing factual update to Declaration of Benjamin McDowell (Doc. No. 68) in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of

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04/03/2019 04/08/2019

Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 03/06/2019)
89 DECLARATION of AFOD Yvette A. Tay-Taylor providing factual update to Declaration of AFOD Yvette A. Tay-Taylor (Doc. No. 69) in Opposition re: 50 MOTION for Preliminary Injunction .. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 03/06/2019)
90 LETTER MOTION to Adjourn Conference /Adjourn Oral Argument Until A Date Late Next Week addressed to Judge Alison J. Nathan from Brandon M. Waterman dated March 12, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 03/12/2019)
91 ORDER granting 90 Letter Motion to Adjourn Conference. Oral argument in this matter is hereby adjourned to April 5, 2019, at 9:30 a.m. SO ORDERED. Oral Argument set for 4/5/2019 at 09:30 AM before Judge Alison J. Nathan. (Signed by Judge Alison J. Nathan on 3/12/2019) (kv) (Entered: 03/12/2019)
92 CONSENT LETTER MOTION for Extension of Time to File Answer /Hold the Government's Deadline to Respond to the Petition Until After the Court Rules on the Petitioner's Motion for a Preliminary Injunction addressed to Judge Alison J. Nathan from Brandon M. Waterman dated April 3, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 04/03/2019)
93 ORDER: Due to the Court's calendar, oral argument in this matter is hereby adjourned to April 8, 2019, at 1 :00 p.m. SO ORDERED. Oral Argument set for 4/8/2019 at 01:00 PM before Judge Alison J. Nathan. (Signed by Judge Alison J. Nathan on 4/3/2019) (kv) (Entered: 04/04/2019)
94 ORDER granting 92 CONSENT LETTER MOTION for Extension of Time to File Answer /Hold the Government's Deadline to Respond to the Petition Until After the Court Rules on the Petitioner's Motion for a

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04/23/2019
04/23/2019
04/24/2019 04/25/2019

Preliminary Injunction. SO ORDERED. (Signed by Judge Alison J. Nathan on 4/5/2019) (jca) (Entered: 04/08/2019)
Minute Entry for proceedings held before Judge Alison J. Nathan. Oral Argument held. Decision reserved. See transcript for complete details. (Court Reporter Lisa Picciano Fellis) (qs) (Entered: 04/08/2019)
95 JOINT LETTER MOTION for Extension of Time to Permit the Parties Additional Time to Confer addressed to Judge Alison J. Nathan from Brandon M. Waterman dated April 22, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 04/22/2019)
96 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/8/2019 before Judge Alison J. Nathan. Court Reporter/Transcriber: Lisa Picciano Franko, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/14/2019. Redacted Transcript Deadline set for 5/24/2019. Release of Transcript Restriction set for 7/22/2019.(McGuirk, Kelly) (Entered: 04/23/2019)
97 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/8/19 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/23/2019)
98 ORDER granting 95 JOINT LETTER MOTION for Extension of Time to Permit the Parties Additional Time to Confer. SO ORDERED. (Signed by Judge Alison J. Nathan on 4/24/2019) (jca) (Entered: 04/24/2019)
99 JOINT LETTER MOTION for Extension of Time to Permit the Parties Additional Time to Confer addressed to Judge Alison J. Nathan from Brandon M. Waterman dated April 25, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 04/25/2019)

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100 ORDER granting 99 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Alison J. Nathan on 4/30/2019) (anc) (Entered: 04/30/2019)
101 JOINT LETTER addressed to Judge Alison J. Nathan from Jacqueline Pearce dated 5/1/2019 re: Proposed Supplemental Briefing Schedule. Document filed by Uriel Vazquez Perez.(Pearce, Jacqueline) (Entered: 05/01/2019)
102 MEMO ENDORSEMENT on re: 101 Letter filed by Uriel Vazquez Perez. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan on 5/3/2019) ( Motions due by 5/17/2019., Responses due by 6/3/2019, Replies due by 6/10/2019.) (ks) (Entered: 05/06/2019)
103 CONSENT MOTION for Extension of Time to Serve Respondent Carl E. DuBois Nunc Pro Tunc. Document filed by Uriel Vazquez Perez.(Pearce, Jacqueline) (Entered: 05/17/2019)
104 MEMORANDUM OF LAW in Support re: 103 CONSENT MOTION for Extension of Time to Serve Respondent Carl E. DuBois Nunc Pro Tunc. . Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 05/17/2019)
105 DECLARATION of Jacqueline Pearce in Support re: 103 CONSENT MOTION for Extension of Time to Serve Respondent Carl E. DuBois Nunc Pro Tunc.. Document filed by Uriel Vazquez Perez. (Attachments: # 1 USPS Domestic Return Receipt, # 2 USPS Confirmation of Delivery, # 3 USPS Certified Mailing Receipt, # 4 Cover Letter Mailed to Respondent DuBois)(Pearce, Jacqueline) (Entered: 05/17/2019)
106 PROPOSED ORDER. Document filed by Uriel Vazquez Perez. Related Document Number: 103 . (Pearce, Jacqueline) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 05/17/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 106 Proposed Order was reviewed and approved as to form. (km) (Entered: 05/17/2019)
107 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 50 MOTION for Preliminary Injunction . . Document filed by Uriel Vazquez Perez. (Hodgson, Robert) (Entered: 05/17/2019)
108 ORDER granting 103 Letter Motion for Extension of Time. IT IS HEREBY ORDERED that Petitioner's Consent Motion to Extend Time to Serve Respondent Carl E. Dubois Nurre Pro Tune is GRANTED; and IT IS FURTHER ORDERED that the time period for service of the summons and complaint is extended 60 days from the date of this order. SO ORDERED. (Signed by Judge Alison J. Nathan on 5/21/2019) (kv) (Entered: 05/21/2019)

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109 LETTER MOTION for Extension of Time to File Response/Reply as to 102 Memo Endorsement, Set Deadlines addressed to Judge Alison J. Nathan from Brandon M. Waterman dated May 30, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 05/30/2019)
110 ORDER granting 109 Letter Motion for Extension of Time to File Response/Reply. The deadline for the Government to file its supplemental brief is hereby adjourned to June 7, 2019. Petitioner's reply brief shall be filed on or before June 25, 2019. The Government shall provide the Court with updated data on presentment times by no later than June 14, 2019. SO ORDERED. Responses due by 6/7/2019 Replies due by 6/25/2019. (Signed by Judge Alison J. Nathan on 5/31/2019) (kv) (Entered: 06/03/2019)
111 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 50 MOTION for Preliminary Injunction . . Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 06/07/2019)
112 LETTER MOTION for Extension of Time to File Updated Data addressed to Judge Alison J. Nathan from Brandon M. Waterman dated June 12, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 06/12/2019)
113 SUPPLEMENTAL LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated June 13, 2019 re: Plaintiff's position on the government's extension request. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 06/13/2019)
114 ORDER granting 112 Letter Motion for Extension of Time to File. The deadline for the government to file updated data concerning presentment

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times is hereby extended to June 21, 2019. Plaintiff's deadline to file a supplemental reply brief is extended to July 2, 2019. SO ORDERED. (Signed by Judge Alison J. Nathan on 6/14/2019) (rj) (Entered: 06/14/2019)
Set/Reset Deadlines: Replies due by 7/2/2019. (rj) (Entered: 06/14/2019)
115 LETTER addressed to Judge Alison J. Nathan from Jacqueline Pearce dated 6/18/2019 re: Notice of Supplemental Authority. Document filed by Uriel Vazquez Perez. (Attachments: # 1 Ex. A- Cancino v. McAleenan, et al)(Pearce, Jacqueline) (Entered: 06/18/2019)
116 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated June 21, 2019 re: The government's updated data and supplemental agency declarations. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Second Supplemental Declaration of AFOD Yvette Tay-Taylor, # 2 Declaration of Court Administrator David Norkin, # 3 Supplemental Declaration of Benjamin McDowell, # 4 Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 06/21/2019)
117 SUPPLEMENTAL REPLY MEMORANDUM OF LAW in Support re: 50 MOTION for Preliminary Injunction . . Document filed by Uriel Vazquez Perez. (Attachments: # 1 Exhibit Exhibit A: Copy of Decision in ARROYO v. DHS, 19-cv-815 (C.D. Cal. June 20, 2019))(Hodgson, Robert) (Entered: 07/02/2019)
118 MOTION for Johanna Beth Steinberg to Withdraw as Attorney . Document filed by Uriel Vazquez Perez.(Steinberg, Johanna) (Entered: 07/18/2019)
119 AFFIDAVIT OF SERVICE of Summons and Petition for Writ of Habeas Corpus. Carl E. DuBois served on 7/10/2019, answer due 7/31/2019. Service was accepted by Langdon C. Chapman, County Attorney of Orange County. Document filed by Uriel Vazquez Perez. (Pearce, Jacqueline) (Entered: 07/22/2019)
120 MEMO ENDORSEMENT: granting 118 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. Attorney Johanna Beth Steinberg terminated. (Signed by Judge Alison J. Nathan on 7/24/2019) (kv) Modified on 9/30/2019 (kv). (Entered: 07/24/2019)
121 MOTION for Jacqueline Pearce to Withdraw as Attorney . Document filed by Uriel Vazquez Perez.(Pearce, Jacqueline) (Entered: 07/25/2019)

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122 MEMO ENDORSEMENT granting 121 Motion to Withdraw as Attorney. ENDORSEMENT: Jacqueline Pearce, undersigned counsel, respectfully moves to withdraw as counsel for the petitioner-plaintiff in the above-captioned matter. After July 29, 2019, I will no longer be associated with the Kathryn 0. Greenberg Immigration Justice Clinic at Cardozo School of Law ("the Clinic"). Attorneys from the Clinic, The Bronx Defenders, and the New York Civil Liberties Union will continue to serve as counsel of record for petitioner-plaintiff and, therefore, withdrawal can be accomplished without material adverse effect on the interests of petitioner plaintiff if this motion is granted. I am not asserting a retaining or charging lien. SO ORDERED. Attorney Jacqueline Pearce terminated (Signed by Judge Alison J. Nathan on 7/29/2019) (kv) . Modified on 10/3/2019 (kv). (Entered: 07/30/2019)
123 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated September 4, 2019 re: The government's submission of updated data and supplemental agency declarations. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Third Supplemental Declaration of AFOD Yvette Tay-Taylor, # 2 Supplemental Declaration of Benjamin McDowell, # 3 Supplemental Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 09/04/2019)
124 OPINION & ORDER re: 3 MOTION to Certify Class filed by Uriel Vazquez Perez, 50 MOTION for Preliminary Injunction filed by Uriel Vazquez Perez. For the reasons articulated above, Vazquez Perez's motion for preliminary injunctive or declaratory relief is DENIED. Respondents are ORDERED to notify the Court if any individuals have waited longer than 17 days between the filing of the NT A and the initial master calendar hearing. Respondents are also ORDERED to continue to provide monthly updates on data regarding median wait times between arrest and scheduling of initial master calendar hearings. The parties are ORDERED to meet and confer as to what proposed additional procedural steps are necessary, if any, before the Court can rule on the request for a final declaratory judgment. Within one week of the date of this Opinion and Order, the parties shall submit a joint letter with their proposal. If no agreement is reached, the parties should each provide their respective proposals. The parties shall also continue to discuss settlement during their meet and confer. (Signed by Judge Alison J. Nathan on 9/30/2019) (mro) (Entered: 10/01/2019)
125 JOINT LETTER MOTION for Extension of Time addressed to Judge Alison J. Nathan from Brandon M. Waterman dated October 4, 2019. Document filed by Thomas Decker, Carl E. DuBois, Executive Office

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For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 10/04/2019)
126 ORDER granting 125 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Alison J. Nathan on 10/7/2019) (kv) (Entered: 10/07/2019)
127 LETTER addressed to Judge Alison J. Nathan from Petitioner-Plaintiff and Respondents-Defendents dated 10/15/2019 re: in response to the Court's September 30, 2019 Order. Document filed by Uriel Vazquez Perez.(Markowitz, Peter) (Entered: 10/15/2019)
128 MEMO ENDORSEMENT on re: 127 Letter filed by Uriel Vazquez Perez. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan on 10/16/2019) (kv) (Entered: 10/17/2019)
129 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated October 22, 2019 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Declaration of AFOD Hector Medina, # 2 2d Supplemental Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 10/22/2019)
130 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated October 29, 2019 re: The government's submission of a supplemental EOIR declaration to clarify the August 28, 2019 declaration of Daniel Cicchini. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 3d Supplemental Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 10/29/2019)
131 NOTICE OF APPEARANCE by Mauricio Eduardo Norona on behalf of Uriel Vazquez Perez. (Norona, Mauricio) (Entered: 10/31/2019)
132 MOTION for Summary Judgment . Document filed by Uriel Vazquez Perez.(Markowitz, Peter) (Entered: 11/01/2019)

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133 MEMORANDUM OF LAW in Support re: 132 MOTION for Summary Judgment . . Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/01/2019)
134 DECLARATION of Sarah Deri Oshiro in Support re: 132 MOTION for Summary Judgment .. Document filed by Uriel Vazquez Perez. (Markowitz, Peter) (Entered: 11/01/2019)
135 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition to the Plaintiff's Motion for Summary Judgment and in Support of the Defendants' Cross-Motion for Summary Judgment. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Waterman, Brandon) (Entered: 11/01/2019)
136 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated November 4, 2019 re: Correction to sentence in the government's supplemental brief (ECF No. 135). Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 11/04/2019)
137 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated November 15, 2019 re: The government's submission of data, in compliance with ECF Nos. 124 & 128, and submission of a supplemental EOIR declaration. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Supplemental Declaration of AFOD Hector Medina, # 2 4th Supplemental Declaration of Daniel Cicchini, # 3 Supplemental Declaration of ACIJ Sheila McNulty)(Waterman, Brandon) (Entered: 11/15/2019)
138 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated December 13, 2019 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 2nd Supplemental Declaration of AFOD

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01/15/2020

Hector Medina, # 2 5th Supplemental Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 12/13/2019)
139 LETTER addressed to Judge Alison J. Nathan from Mauricio Norona dated 12/20/2019 re: Letter Seeking Order to Show Cause on Respondents-Defendants Failure to Comply with the Courts Order on Reporting. Document filed by Uriel Vazquez Perez.(Norona, Mauricio) (Entered: 12/20/2019)
140 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated December 31, 2019 re: The government's notification of two individuals with initial hearings occuring more than 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 12/31/2019)
141 MEMO ENDORSEMENT on re: 139 Letter, filed by Uriel Vazquez Perez. ENDORSEMENT: Respondents-Defendants shall respond to Plaintiff's December 20, 2019 letter by January 15, 2020. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/9/2020) (kv) (Entered: 01/10/2020)
142 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated January 15, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 3rd Supplemental Declaration of AFOD Hector Medina, # 2 6th Supplemental Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 01/15/2020)
143 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated January 15, 2020 re: The government's response to the plaintiff's December 20, 2019 letter (ECF No. 139). Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 7th Supplemental Declaration of Daniel Cicchini)(Waterman, Brandon) (Entered: 01/15/2020)

01/17/2020 02/10/2020 02/10/2020 02/14/2020 03/12/2020

144 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated January 17, 2020 re: The government's notification of one individual with an initial hearing occuring more than 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker.(Waterman, Brandon) (Entered: 01/17/2020)
145 LETTER addressed to Judge Alison J. Nathan from Peter Markowitz dated 2/10/2020 re: 90-day letter pursuant to Hon. Alison Nathan's Individual Rules of Civil Practice, 1H. Document filed by Uriel Vazquez Perez..(Markowitz, Peter) (Entered: 02/10/2020)
146 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated February 10, 2020 re: The government's notification of two individuals with initial hearings occuring more than 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker..(Waterman, Brandon) (Entered: 02/10/2020)
147 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated February 14, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 4th Supplemental Declaration of AFOD Hector Medina, # 2 8th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 02/14/2020)
148 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated March 12, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 5th Supplemental Declaration of AFOD

04/15/2020 04/24/2020 04/29/2020 05/01/2020

Hector Medina, # 2 9th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 03/12/2020)
149 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated April 15, 2020 re: The government's submission of data, as well as notification of individuals with initial hearings occuring more than 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 6th Supplemental Declaration of AFOD Hector Medina, # 2 10th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 04/15/2020)
150 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated April 24, 2020 re: The government's notification of two individuals with an initial hearing occuring more than 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker..(Waterman, Brandon) (Entered: 04/24/2020)
151 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated April 29, 2020 re: The government's notification of eleven individuals who have not received or did not receive an initial master calendar hearing after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker..(Waterman, Brandon) (Entered: 04/29/2020)
152 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated May 1, 2020 re: The government's notification of one individual who did not receive an initial master calendar hearing within 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs

05/15/2020 06/15/2020 07/16/2020 08/14/2020

Enforcement, Ronald D. Vitiello, Matthew G. Whitaker..(Waterman, Brandon) (Entered: 05/01/2020)
153 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated May 15, 2015 re: The government's submission of data, as well as notification of individuals with initial hearings occuring more than 17 days after the filing of the NTA, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 7th Supplemental Declaration of AFOD Hector Medina, # 2 11th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 05/15/2020)
154 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated June 15, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128.. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 8th Supplemental Declaration of AFOD Hector Medina, # 2 12th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 06/15/2020)
155 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated July 15, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 9th Supplemental Declaration of AFOD Hector Medina, # 2 13th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 07/16/2020)
156 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated August 14, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128.. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 10th Supplemental Declaration of AFOD

09/15/2020 10/15/2020 11/14/2020 11/30/2020

Hector Medina, # 2 14th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 08/14/2020)
157 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated September 15, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 11th Supplemental Declaration of AFOD Hector Medina, # 2 15th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 09/15/2020)
158 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated October 15, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 12th Supplemental Declaration of AFOD Hector Medina, # 2 16th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 10/15/2020)
159 LETTER addressed to Judge Alison J. Nathan from Brandon M. Waterman dated November 14, 2020 re: The government's submission of data, in compliance with ECF Nos. 124 & 128. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Declaration of Acting AFOD Judith Almodovar, # 2 17th Supplemental Declaration of Daniel Cicchini).(Waterman, Brandon) (Entered: 11/14/2020)
160 OPINION & ORDER re: 132 MOTION for Summary Judgment . filed by Uriel Vazquez Perez. Vazquez Perez has satisfied the requirements of Rules 23(a) and (b), and thus certification of a class is appropriate here. Accordingly, the Court GRANTS Vazquez Perez's unopposed class certification motion and certifies the Rule 23(b)(2) class comprised of all individuals who have been, or will be, arrested by ICE's New York Field Office and detained under Section 1226 of Title 8 of the United States Code for removal proceedings before an Immigration Judge and who have not been provided an initial hearing before an ImmigrationJudge. Vazquez Perez's motion for summary judgment is GRANTED IN PART and DENIED IN PART. The Court DECLARES that the Due Process

11/30/2020 01/29/2021

Clause of the Fifth Amendment requires that initial master calendar hearings for any class member be held within 10 days of an individual's arrest by ICE. The Governments cross-motion for summary judgment is GRANTED as to the substantive due process and Administrative Procedure Act claims. This resolves Dkt. No. 132. The Clerk of Court is respectfully directed to enter judgment and close this case. (As further set forth in this Order.) (Signed by Judge Alison J. Nathan on 11/30/2020) (cf) Transmission to Orders and Judgments Clerk for processing. (Entered: 11/30/2020)
161 CLERK'S JUDGMENT re: 160 Memorandum & Opinion. in favor of Executive Office For Immigration Review, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Carl E. DuBois, James McHenry, Kirstjen Nielsen, Matthew G. Whitaker, Ronald D. Vitiello, Thomas Decker, against Uriel Vasquez; in favor of Uriel Vasquez against Executive Office For Immigration Review, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Carl E. DuBois, James McHenry, Kirstjen Nielsen, Matthew G. Whitaker, Ronald D. Vitiello, Thomas Decker. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated November 30, 2020, Vazquez Perez has satisfied the requirements of Rules 23(a) and (b), and thus certification of a class is appropriate here. Accordingly, the Court GRANTS Vazquez Perez's unopposed class certification motion and certifies the Rule 23(b)(2) class comprised of all individuals who have been, or will be, arrested by ICE's New York Field Office and detained; under Section 1226 of Title 8 of the United States Code for removal proceedings before an Immigration Judge and who have not been provided an initial hearing before an Immigration Judge. Vazquez Perez's motion for summary judgment is GRANTED IN PART and DENIED IN PART. The Court DECLARES that the Due Process Clause of the Fifth Amendment requires that initial master calendar hearings for any class member be held within 10 days of an individual's arrest by ICE. The Government's cross-motion for summary judgment is GRANTED as to the substantive due process and Administrative Procedure Act claims, and this case is closed. (Signed by Clerk of Court Ruby Krajick on 11/30/2020) (Attachments: # 1 Notice of Right to Appeal) (dt) (Entered: 11/30/2020)
162 NOTICE OF APPEAL from 161 Clerk's Judgment,,,,,,,. Document filed by Thomas Decker, Carl E. DuBois, Executive Office For Immigration Review, James McHenry, Kirstjen Nielsen, United States Department of Homeland Security, United States Department of Justice, United States Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G.

Whitaker. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Waterman, Brandon) (Entered: 01/29/2021)

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 Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Uriel VAZQUEZ PEREZ, on his own behalf and on behalf of others similarly situated,
Petitioner-Plaintiff,
v.
Thomas DECKER, in his official capacity as New York Field Office Director for U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; Ronald D. VITIELLO, in his official capacity as the Acting Director for U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; Kirstjen NIELSEN, in her official capacity as Secretary of the U.S. DEPARTMENT OF HOMELAND SECURITY; James McHENRY, in his official capacity as Director of the EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; Matthew G. WHITAKER, in his official capacity as the Acting Attorney General of the United States; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF JUSTICE; the EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; and Carl E. DUBOIS in his official capacity as the Sheriff of Orange County and the official in charge of the Orange County Correctional Facility,
Respondents-Defendants.

Case No. 18-cv-10683
CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. The U.S. Immigration and Customs Enforcement agency (“ICE”) arrests more than 1000
people each year in the New York area. Hundreds of these individuals will be released after they get to see an immigration judge (“judge”), and many will go on to win the right to remain in the United States. However, when they are arrested, ICE holds people in area jails for approximately eighty days before allowing them to see a judge and to begin their
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case. While they languish in jail, these immigration detainees—including some United States citizens and lawful permanent residents (“LPRs”)—are frozen in legal limbo. It is only at an immigration detainee’s first appearance before a judge that a detainee is meaningfully informed of the reason for their detention; that a detainee can request immediate release on bond while their immigration case proceeds; and that a detainee can petition for release if their detention is unlawful. Those ensnared by this illegal practice suffer under harsh conditions of confinement; are separated from families, friends, and communities; and risk losing their children, their jobs, and their homes. 2. The current practice marks a dramatic deterioration from just four years ago, when initial court appearances typically occurred within eleven days of an arrest. Also in the last four years, ICE has effectively stopped releasing anyone on bond, though it has independent authority to do so. Thus, people now have no way to win release during the unprecedented period of delay before they see a judge. 3. It is imperative to bring immigration detainees to court promptly. After they see a judge, an estimated 40% of detainees will be released on bond, and others will have their cases terminated altogether after a finding that they are not removable. For indigent detainees, the first court appearance is when they are provided access to a free lawyer. Even for those not released right away, prompt hearings are important because they allow the person’s immigration case to begin. The amount of time a person waits to see a judge for the first time is an entirely unproductive period that unnecessarily extends their detention and the resolution of their case. 4. Petitioner-Plaintiff Uriel Vazquez Perez (“Petitioner”) is one of the many individuals currently in ICE custody who faces the prospect of months in detention before he will be
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provided an opportunity to see a judge. Mr. Vazquez Perez was arrested by ICE on October 30, 2018 and is detained by ICE at the Orange County Correctional Facility in Goshen New York, where ICE rents bed space. Mr. Vazquez Perez is a long-time New Yorker, husband, and father of two children. He will likely languish in jail for months before he is brought before a judge who can release him on bond and evaluate his case. 5. Respondents-Defendants’ (“Respondents”) practice of failing to provide first appearances before a judge for nearly three months after an arrest violates the Fourth and Fifth Amendments to the United States Constitution and the Administrative Procedure Act (“APA”). Petitioners seek declaratory and injunctive relief to end Respondents’ illegal practice and to end the enormous and unnecessary harm that this practice inflicts.
JURISDICTION AND VENUE 6. This Court has jurisdiction under 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. § 1331
(federal question); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. §§ 2201–02 (Declaratory Judgment Act); 28 U.S.C. § 1361 (mandamus); 5 U.S.C. §§ 702–06 (Administrative Procedure Act); and U.S. Const., art. I, § 9, cl. 2 (Suspension Clause). 7. Venue is proper under 28 U.S.C. § 2241, 28 U.S.C. § 1391(b), and 28 U.S.C. § 1391(e) because at the time of the filing of this action the Petitioner is detained in Respondents’ custody within the Southern District of New York; the federal government will prosecute his removal proceedings within this district at the Varick Court located at 201 Varick Street, New York, NY 10014 (“Varick Court”); a substantial part of the events and omissions giving rise to these claims occurred, and continue to occur, in this district; Respondent Decker’s official residence is in this district; and the Respondents are officers or employees of the United States acting in their official capacities.
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PARTIES 8. Petitioner Uriel VAZQUEZ PEREZ is presently in the custody of ICE’s New York Field
Office (“NYFO”) detained pursuant to 8 U.S.C. § 1226 within the Southern District of New York at the Orange County Correctional Facility, where ICE rents bed space. He is legally entitled a hearing in immigration court to determine whether he should be removed from the United States and whether he should be released on bond during the pendency of his removal proceedings. He has not yet been afforded an opportunity to see a judge. 9. Respondent UNITED STATES DEPARTMENT OF HOMELAND SECURITY (“DHS”) is the federal agency responsible for arresting, detaining, and prosecuting individuals suspected of civil immigration violations, including Petitioners. 10. Respondent Kirstjen NIELSEN is named in her official capacity as the Secretary of DHS. ICE is subject to her control and direction, and she is responsible for the administration and enforcement of the immigration laws pursuant to 8 U.S.C. § 1103(a). Respondent Nielsen routinely transacts business in the Southern District of New York and is a legal custodian responsible for the arrest and detention of Petitioners. 11. Respondent UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT is a subcomponent of DHS responsible for arresting, detaining, and prosecuting individuals suspected of civil immigration violations, including Petitioners. 12. Respondent Ronald D. VITIELLO is named in his official capacity as the Acting Director of ICE. ICE is subject to his control and direction, and he is responsible for the administration and enforcement of the immigration laws. Respondent Vitiello routinely
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transacts business in the Southern District of New York and is a legal custodian responsible for the arrest and detention of Petitioners. 13. Respondent Thomas DECKER is named in his official capacity as the Director of the NYFO for ICE, which has jurisdiction over individuals suspected of civil immigration violations who are arrested in New York City and in Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, Sullivan, Ulster, and Westchester Counties. Respondent Decker also has jurisdiction over the detention of individuals who are, or will be, in removal proceedings at the Varick Court. Respondent Decker’s place of business is in the Southern District of New York, and he is an immediate legal and physical custodian responsible for the arrest and detention of all Petitioners and of the proposed class representative. 14. Respondent UNITED STATES DEPARTMENT OF JUSTICE (“DOJ”) is the federal agency responsible for interpretation of the immigration laws and the adjudication of removal proceedings. 15. Respondent Matthew G. WHITAKER is named in his official capacity as the Acting Attorney General of the United States and is the most senior official in the DOJ. He is responsible for the interpretation of the immigration laws and the adjudication of removal proceedings, and delegates this responsibility to the Executive Office for Immigration Review (“EOIR”), which is subject to his control and direction. Respondent Whitaker is legally responsible for administering Petitioners’ removal proceedings. 16. Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW is a federal agency and component of the DOJ and is responsible for the administration of removal
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proceedings in immigration courts, including at the Varick Court, where Petitioners will appear for their removal proceedings. 17. Respondent James MCHENRY is named in his official capacity as the Director of EOIR. He is responsible for the administration of removal proceedings in immigration courts, including at the Varick Court, where Petitioners will appear for their removal proceedings. 18. Respondent Carl E. DUBOIS is named in his official capacity as the Sheriff of Orange County and the official in charge of the Orange County Correctional Facility. Respondent DUBOIS's place of business is in the Southern District of New York and he is an immediate and physical custodian responsible for the detention of the proposed class representative.
FACTS 19. Petitioner Vazquez Perez and the putative class of Petitioners are immigration detainees
arrested and jailed by ICE’s NYFO, who have a right to a hearing in immigration court before the United States government may remove them from this country. Delays in Access to the Courts 20. For immigration detainees, ICE serves simultaneously as the arresting agents, jailors, and prosecutors. After ICE’s NYFO chooses to arrest a person for an alleged civil immigration offense, it will detain that person pending immigration proceedings in criminal jails that contract with ICE to provide bed space. While they wait in jail, most detainees lack basic information about the charges and evidence against them, do not know the steps required to prepare to apply for bond or to defend themselves in their removal cases, and do not have lawyers. As a result, they can make no progress on their
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cases. Immigration detainees must wait until they are brought before an immigration judge to seek release. 21. The amount of time immigration detainees must wait in jail before seeing a judge is growing at an alarming rate. In 2014, the median wait time between arrest and initial appearance before an immigration judge at the Varick Court was eleven days. In 2015, that number grew to eighteen days, and in 2016, it grew to thirty-seven days. By 2017, the median wait time from arrest to initial appearance before a judge ballooned to fortytwo days. In 2018, the period of detention before presentment to a judge has increased precipitously. The most recent available data shows that, in July 2018, the median wait time between arrest and an immigration detainee’s first opportunity to see a judge at the Varick Court was eighty days. 22. Petitioners have no effective mechanism to mitigate this delay. As explained more fully below, while ICE provides detainees with paperwork that theoretically offers a mechanism for requesting expedited proceedings, there is, upon information and belief, no difference in wait time when a detainee requests expedition. Notably, this paperwork is written in English, and most Petitioners have no interpreter or lawyer to translate or explain the paperwork before they see a judge. 23. The extensive and growing delay between when ICE detains individuals and when they are finally produced to a judge serves no legitimate purpose. Initial Appearance Before an Immigration Judge 24. The initial appearance before a judge marks the practical beginning of the removal proceedings and the first time many immigration detainees learn basic information about their case and can meaningfully begin to assert their rights.
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25. At the initial appearance, the judge, with the aid of an interpreter if necessary: (a) describes the nature of the proceeding and the allegations and charges in plain, nontechnical language; (b) notifies individuals of their right to be represented and of available pro bono legal services; (c) has a first opportunity to assist individuals in identifying defenses to deportation; (d) advises individuals of their rights to examine and object to the evidence against them, cross examine government witnesses, and present evidence on their own behalf; and (e) observes the detainee and may determine if there are any indicia of incompetency, triggering the judge’s obligation to investigate whether an individual is competent to participate in proceedings and explore necessary safeguards.
26. The initial appearance is also the judge’s first opportunity to ensure that ICE properly served the charging document, known as the Notice to Appear (“NTA”), upon the detainee and to review the NTA for facial defects.
27. For individuals in removal proceedings at the Varick Court, the initial appearance is particularly valuable because New York City has created a public defender program (the New York Immigrant Family Unity Project) that offers free deportation defense counsel to all indigent detained individuals who are unrepresented when they first appear for removal proceedings. Detainees are not generally provided free counsel through this program, however, until at or after their first court appearance when they affirm on the record that they want counsel. Prior to that, most immigration detainees do not have counsel.
28. All Petitioners are also entitled to some form of custody review by a judge. At the Varick Court, the day of the initial appearance in removal proceedings is generally the earliest
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point at which an individual may receive a custody determination from the immigration court and win release on bond. Approximately 40% of immigration detainees appearing at the Varick Court are ultimately released because the court determines they are eligible for bond and that they are neither a flight risk nor a danger to the community. 29. In practice, the initial appearance is also the earliest point when detainees may have the opportunity to see the evidence against them. With such evidence in hand, and after receiving linguistically-appropriate plain language notice of the charges against them, the first appearance is the first opportunity for an individual wrongfully detained by ICE to move to terminate their proceedings. Respondents’ own data demonstrates that, over the past five years, 9% of individuals detained by ICE who appeared at the Varick Court ultimately had their cases terminated. Some are wrongfully arrested United States citizens, and others are LPRs whom ICE incorrectly charges as removable. While these individuals are not removable and should not be detained, they are nevertheless forced to endure months of unlawful detention while they await their first appearance before a judge. 30. Immigration detainees who are removable but wish to challenge their deportation must apply for some form of “relief” from removal—for example, asylum, adjustment of status, or cancellation of removal. The initial appearance is generally the first opportunity for individuals to learn of their potential eligibility for relief—either from their attorneys or the judge. Thus, it is the point at which a large percentage of detainees who apply for relief can begin the lengthy process of preparing their relief applications. 31. The initial appearance is also the first opportunity for individuals who have no defense to removal, or who do not wish to remain in detention to contest their removal, to accept a
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removal or voluntary departure order from a judge to effectuate their return to their country of origin and their release from custody. 32. Collectively, the notices, advisals, and procedures attendant to the initial appearance provide Petitioners with their first opportunity to seek release, either by requesting bond, by contesting removability, or by accepting a removal or voluntary departure order. ICE’s Post-Arrest Charging and Custody Determinations 33. Petitioners are all individuals detained by ICE’s NYFO pursuant to 8 U.S.C. § 1226 who have a statutory right to go through removal proceedings in immigration court. However, prior to their initial appearance in front of a judge, ICE’s post-arrest charging and custody determination procedures do not afford immigration detainees any meaningful way to challenge the legality or necessity of the extended detention they will face before seeing a judge. 34. For individuals arrested within the jurisdiction of the NYFO, ICE’s post-arrest processing generally occurs at the ICE offices at 201 Varick Street, New York, NY 10014 or at 26 Federal Plaza, New York, NY 10278 or, sometimes, at location in Newburgh, NY. However, ICE provides no neutral or meaningful process to identify individuals who should be released on bond or who are not in fact removable. 35. ICE does not obtain judicial warrants prior to making civil immigration arrests. Nor does ICE seek post-arrest impartial review of their unilateral decision to arrest someone. Instead, pursuant to the arrest authority set forth in the Immigration and Nationality Act (“INA”), ICE may arrest and detain Petitioners either (1) pursuant to a document referred to as an administrative “warrant,” which is signed by an ICE officer, without impartial review, and contains no particularized facts; or (2) without an administrative “warrant” if
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an ICE officer has “reason to believe” that the individual is a noncitizen who is violating U.S. immigration law and “is likely to escape before a warrant can be obtained.” 8 U.S.C. § 1357(a)(2). “Reason to believe” under the INA is equivalent to the constitutional requirement of “probable cause.” 36. Whether arrests are made with or without an administrative warrant, initial determinations about removability are made by ICE officers without any process in which arrestees can meaningfully participate. These determinations are sometimes, but not always, reviewed by an additional officer. 37. This evaluative process happens quickly. Either before arresting a person or within fortyeight hours of arrest, ICE is required to decide whether to refer the person to an immigration court for removal proceedings and what civil immigration charge to lodge. ICE’s charging decisions are memorialized on the NTA, which is served on the individual and eventually filed with the court. The immigration court’s jurisdiction over removal proceedings vests when ICE files the NTA. 38. The legal scheme created by Congress and the Respondents is founded on a general expectation that removal proceedings for immigration detainees should be initiated and proceed expeditiously. However, in some instances, ICE does not even file the NTA—the charging document that vests the court with jurisdiction—until weeks after an individual has been arrested and detained. 39. The NTA contains a signature line that allows an individual to request an “immediate hearing” before a judge. Upon information and belief, however, signing this request does not impact scheduling or when an individual will have their first appearance before a judge.
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40. At some point after ICE files the NTA with the immigration court, EOIR will schedule an initial appearance. However, detainees are not generally notified when the NTA is filed with the immigration court or when their initial appearance is scheduled, though some learn the date of their appearance when it becomes available on a public, automated EOIR hotline.
41. During the post-arrest processing period, ICE is also required to make an initial custody determination, which will dictate whether an individual remains detained awaiting their first court appearance or may be released on bond or their own recognizance. In practice, however, ICE’s NYFO refuses to set bond for individuals detained under 8 U.S.C. § 1226. As a result, Petitioners remain detained at least until their first appearance before the court.
42. ICE memorializes its custody decision on Form I-286, Notice of Custody Determination, which is served on the detainee. Immigration detainees can check a box on the Form I286 to “request an immigration judge review of this custody determination.” Upon information and belief, checking this box does not affect when an individual will be presented to a judge.
43. At no point in ICE’s post-arrest processing or custody review is there a meaningful opportunity for detainees to participate or to contest their charges or custody status. Petitioners do not receive access to the underlying evidence against them, and there is no hearing or other opportunity to avail themselves of the assistance of counsel to challenge ICE’s charging and custody determinations. After ICE makes its charging and custody determinations, which are memorialized in the NTA and Form I-286, ICE does not
12

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 13 of 20
provide immigration detainees with any means to seek further administrative review from ICE of those determinations. Harms of Extended Detention Without Access to the Courts 44. Extended detention without access to a judge subjects immigration detainees to a variety of harms. Most critically, delayed access to a judge delays an individual’s ability to win release from custody, whether on bond, as the result of termination, after a grant of relief, or even after the entry of a removal or voluntary departure order. 45. The extended loss of physical liberty caused by Respondents also has a devastating physical, emotional, and financial impact on detainees and their families. Most individuals arrested by ICE’s NYFO for removal proceedings have lived in this country for long periods of time and are deeply integrated into local communities and families. On average, Petitioners have lived in the United States for sixteen years when ICE arrests them, and almost a third (30%) are LPRs. Approximately half (47%) have children who live with them in the United States. Such parents have, on average, two children and report that 86% of those children have some form of legal status, primarily U.S. citizenship. 46. Approximately two-thirds (64%) of individuals arrested by ICE’s NYFO for removal proceedings report that they were employed at the time of their arrest by ICE, and many are primary breadwinners for their families. Extended detention deprives individuals of their ability to earn a living and can result in a loss of pre-existing employment and income to support their families. 47. Following arrest by ICE, individuals detained by the NYFO are separated from their families and generally held at one of three county jails that contract with ICE to provide
13

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 14 of 20
bed space: Hudson County Correctional Facility in New Jersey; Bergen County Jail in New Jersey; and Orange County Correctional Facility in New York (collectively “ICE’s New York City-area facilities”). In these jails, immigration detainees are held under the same restrictions as individuals held on criminal charges or serving criminal sentences. The conditions are worse, however, because immigration detainees lack access to some of the services available to the individuals detained on criminal charges. Contact with families through phone calls and visits at these facilities are limited and prohibitively expensive for some. 48. The medical and mental health care available at ICE’s New York City-area facilities is grossly inadequate and has led to severe negative consequences for detainees’ health and, in some cases, has even led to death. Hudson County Jail, where many putative class members are held, has reported six inmate deaths since June 2017 alone, including four suicides. The serious inadequacies in ICE’s New York City-area facilities’ medical and mental health care has been recognized and documented by multiple local and national nonprofit organizations as well as by Respondent DHS’s own Inspector General. 49. ICE’s New York City-area facilities have a documented track record of denying detainees access to vital medical treatment, such as dialysis and blood transfusions; subjecting detainees to weeks- and months-long delays in providing access to necessary medications, care, and even vital surgeries; ignoring repeated complaints and requests for care from detainees with serious symptoms or acute pain, including individuals recovering from car accidents and gunshot wounds; refusing to continue effective treatments that detainees were receiving prior to detention, including for individuals with chronic conditions such as HIV, cancer, or diabetes; and failing to provide interpretation
14

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 15 of 20
and translation services for detainees with limited English proficiency who seek medical care. 50. Collectively, the deficiencies in the medical and mental health care provided at ICE’s New York City-area facilities subject Petitioners to the risk of serious and even lifethreatening medical complications during the months before they have any possibility to seek release from a judge. Facts Pertaining to Petitioner-Plaintiff Uriel Vazquez Perez 51. Petitioner Uriel Vazquez Perez has lived in New York for nearly twenty years. He was arrested on October 30, 2018 by ICE’s NYFO. Upon information and belief, ICE detained Mr. Vazquez Perez pursuant to 8 U.S.C. § 1226 and, consistent with its general practice, refused to release him on bond. Accordingly, he will remain detained by ICE at least until he can see a judge. Mr. Vazquez Perez is currently detained by ICE at the Orange County Correctional Facility, a local county jail where ICE rents bed space, in Goshen, New York. Mr. Vazquez Perez has not yet been scheduled for his initial appearance before the immigration court, and will likely wait months to see a judge. Once he appears before a judge, Mr. Vazquez Perez is eligible for and will seek release on bond and assert defenses to removal. 52. Prior to being detained by ICE, Mr. Vazquez Perez lived with his wife and two children, all of whom are members of their local church. His youngest child is in sixth grade and is a United States citizen. Now, while Mr. Vazquez Perez waits to see a judge, he is separated from his family and detained in the same conditions and with the same restrictions imposed on criminal defendants.
15

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 16 of 20
CLASS ACTION ALLEGATIONS 53. Petitioner brings this representative habeas action pursuant to 28 U.S.C. § 2241, or in the
alternative, class action pursuant to Fed. R. Civ. P. 23(a), (b)(1), and (b)(2) on behalf of himself and all other persons similarly situated. 54. The proposed class is defined as follows:
All individuals who are, have been, or will be arrested by ICE’s NYFO and detained under 8 U.S.C. § 1226 for removal proceedings before an immigration judge, and who have not been provided an initial hearing before an immigration judge. 55. Like Petitioner, all other proposed class members are, have been, or will be confined in the legal and physical custody of Respondents within the Southern District of New York and, even if subsequently housed elsewhere, will remain detained in the legal and physical custody of Respondents during the pendency of their removal proceedings. 56. The proposed class is so numerous, and membership in the class so fluid and transitory, that joinder of all members is impracticable. In the first seven months of 2018, the Varick Court—which only serves individuals detained under the jurisdiction of the NYFO— received 896 new NTAs, or new removal cases. There are currently over one hundred individuals detained by the NYFO who have not yet seen a judge. Annually, there are more than one thousand such individuals. 57. Moreover, absent class certification, individual immigration detainees would face a series of barriers to accessing the relief sought. The majority of detainees are unrepresented prior to their first appearance before a judge. As set forth above, they do not receive any translation or explanation of legal documents during this time period. Access to legal materials in detention is severely limited. A large percentage of detainees do not speak and/or cannot read or write in English. Many detainees have limited educational
16

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 17 of 20
backgrounds. A significant class of detainees suffers from physical or mental impairments. 58. Petitioner’s claims are typical of those of the proposed class. All proposed class members are entitled to challenge whether they are subject to removal and to obtain some form of custody review before a judge. However, members of the proposed class are subject to extended detention without prompt access to a judge to challenge their detention and deportation. 59. Petitioner will fairly and adequately protect the interests of the proposed class. Petitioner has no interests separate from those of the class with respect to the claims and issues in this case and seeks no relief other than the relief sought by the class. He is unaware of any conflicts that would preclude fair and adequate representation. 60. Common questions of law or fact exist as to all proposed class members, including but not limited to the following: (a) whether the Respondents’ policy and practice of failing to promptly provide class members with access to an immigration judge violates due process; (b) whether the Respondents’ policy and practice of failing to provide class members with prompt post-deprivation hearings before a neutral adjudicator violates the Fourth Amendment; and (c) whether the Respondents’ policy and practice of unreasonably delaying the first appearance of class members before a judge violates the APA. 61. The claims of Petitioner are typical of the claims of the class as a whole because Petitioner and the class members are, have been, or will be similarly detained by ICE’s NYFO without an opportunity to promptly access a judge to challenge their detention and removal. Moreover, Petitioner and proposed class members will be directly injured by
17

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 18 of 20
Respondents’ policy and practice of excessive delays that result in months of unjustified and unnecessary detention. 62. Counsel for Petitioner are experienced in complex class action, civil rights, and immigrants’ rights litigation. 63. The fact that vulnerable class members are unlikely to be able to challenge their prepresentment detention individually, as well as considerations of judicial economy, also militate in favor of class certification.
CAUSES OF ACTION FIRST CLAIM
VIOLATION OF DUE PROCESS 64. Respondents’ actions violate the rights of Petitioners under the Due Process Clause of the
Fifth Amendment. SECOND CLAIM
VIOLATION OF FOURTH AMENDMENT 65. Respondents’ seizure of Petitioners without any probable cause determination by an
immigration judge or other impartial adjudicator is unreasonable and violates the Fourth Amendment.
THIRD CLAIM VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT 66. Respondents’ unreasonable delays violate the APA. Respondents DHS, ICE, Nielsen, Vitiello, and Decker’s policy of universally denying bond without individualized determinations further violates the APA.
18

Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 19 of 20

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Case 1:18-cv-10683 Document 1 Filed 11/15/18 Page 20 of 20
ROBERT HODGSON CHRISTOPHER DUNN BEN CHOI*** New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 Tel: (212) 607-3300 JOHANNA B. STEINBERG JENN ROLNICK BORCHETTA NIJI JAIN SUCHITA MATHUR ZOE LEVINE The Bronx Defenders 360 E. 161st Street Bronx, NY 10451 (718) 838-7878 Counsel for Petitioner-Plaintiff Dated: November 15, 2018 New York, NY * Application for admission to the S.D.N.Y. forthcoming ** Law Student Intern Appearance Forms forthcoming *** Law school graduate; application for admission to the bar forthcoming
20

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Uriel Vazquez Perez, on his own behalf and on behalf of others similarly situated,
Petitioner-Plaintiff,
-v-
Thomas Decker, et al.,
Respondents-Defendants.

18-cv-10683 (AJN) OPINION & ORDER

ALISON J. NATHAN, District Judge: Petitioner-Plaintiff Uriel Vazquez Perez brings this class petition for habeas corpus relief
and class complaint against Respondents-Defendants Thomas Decker, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement ("ICE"), and others 1, alleging that ICE' s practice of failing to provide initial appearances before an Immigration Judge for up to several months after arrest violates the Constitution, as well as the Administrative Procedure Act. He seeks declaratory and injunctive relief to end this allegedly illegal practice. Now before the Comi is Vazquez Perez's motion for preliminary declaratory and injunctive relief. The Comi concludes that Congress has stripped it ofjurisdiction to issue the requested injunctive relief on a classwide basis. However, that jurisdiction-stripping provision does not preclude the Comi from issuing a declaratory judgment. Nevertheless,

1 Vazquez Perez also sues the following: Ronald D. Vitiello, then acting director for ICE; Kristjen Nielsen, then Secretary of the Department of Homeland Security; James McHenry, Director of the Executive Office of Immigration Review; Matthew G. Whitaker, then Acting Attorney General; the Department of Homeland Security; ICE; the Department of Justice; the Executive Office oflmmigration Review; and Carl E. DuBois, Sheriff of Orange County and the official in charge of the Orange County Correctional Facility. All individuals are sued in their official capacities.
1

because as a procedural matter the Court sees no basis for doing so on a preliminary basis, this pending motion for preliminary injunctive and declaratory relief is DENIED.
I. BACKGROUND A. General Factual Background
The pe1iinent facts of this case are undisputed unless otherwise noted and are drawn from the parties' submissions on Vazquez Perez's motion.
The immigration laws authorize immigration officials to charge individuals as removable, arrest individuals subject to removal, and then detain them pending removal proceedings. See Demore v. Kim, 538 U.S. 510, 523-26 (2003). As relevant here, 8 U.S.C. § 1226 authorizes detention of any individual in removal proceedings and requires detention in some cases. Compare 8 U.S.C. § 1226(a) ("On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.") with id. § 1226(c) ("The Attorney General shall take into custody any alien who" falls into any of four categories). Following arrest, ICE officers may release an individual detained pursuant to § 1226(a) if she "demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that [she] is likely to appear for any future proceeding." 8 C.F.R. § 236.l(c)(8). Regulations provide that such determinations will be made within 48 hours of arrest, "except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time." 8 C.F.R. § 287.3(d). Determinations on removability and custody are made by ICE and recorded in the Notice to Appear ("NTA"), which is the charging document in the removal proceedings, and the Form I-286, respectively. Both are subsequently served on the detainee.
2

ICE is a subcomponent of the Department of Homeland Security that is responsible for arresting, jailing, and prosecuting individuals in removal proceedings, which are adjudicated by the immigration comis. See Dkt. No. 69 ~ 4. Individuals who are arrested by ICE's New York Field Office and detained are placed in civil removal proceedings at the New York City Immigration Court at 201 Varick Street in Manhattan ("Immigration Comi"), which maintains a detained docket. Dkt. No. 53-1 ~ 23; Dkt. No. 67 ~ 16. The Immigration Court obtains jurisdiction over removal proceedings when an ICE officer files the NTA. 8 C.F.R. § 1003.14(a). While awaiting their initial appearance before the Immigration Judge, individuals are detained in criminal jails pursuant to a contract with ICE to house immigration detainees. Dkt. No. 53-1 ~ 8.
The initial appearance, also known as the initial master calendar hearing, is the first substantive step in the removal proceedings. The initial master calendar hearing is typically an individual's first opportunity to appear before an Immigration Judge. At the initial master calendar hearing, the Immigration Judge (a) provides the detainee with information in a language she understands, Dkt. No. 53-11 at 12-13; (b) describes in plain language the nature of the proceedings and the allegations and charges in the NTA, 8 C.F.R. § 1240.10(a)(6); (c) reviews the NTA for defects and ensures proper service has been effectuated, Dkt. No. 53-11 at 2-3; (d) notifies the individual of her right to retain private counsel and of available pro bona legal services, 8 C.F.R. §§ 1240.l0(a)(l), (2); (e) has an initial opportunity to assist the individual in identifying defenses to dep01iation, 8 C.F.R. § 1240. l l(a)(2); (±) advises the individual of her rights to examine and object to the evidence against her, cross-examine government witnesses, and present evidence on her own behalf, 8 C.F.R. § 1240.10(a)(4)); and (g) observes the individual to determine if there are "any indicia of incompetency," triggering the judge's
3

obligation to "take measures to determine whether [the individual] is competent to participate in proceedings" and to explore safeguards, Matter ofM-A-M, 25 I. & N. Dec. 474,480 (BJ.A. 2011). See generally Dkt. No. 53-3 ,, 10, 14; see also Dkt. No. 67, 12-13. These hearings are also typically the first opp01iunity for indigent individuals to seek pro bono legal representation from the New York Immigrant Family Unity Project, which provides free removal defense counsel to all indigent detained individuals. Dkt. No. 53-1, 10. Furthermore, they present the first opp01iunity for the Immigration Judge to review ICE's custody determinations and possibly release eligible individuals on bond. Dkt. No. 53-3 ,, 13-14; Dkt. No. 53-1 ,, 20, 22; Dkt. No. 67, 15. Though ICE makes an initial custody determination following arrest, Vazquez Perez presents evidence that, since 2016 until the time of filing of the motion for preliminary injunctive or declaratory relief, ICE's New York Field Office operated under a "no bond" policy and issued bond in none of its cases. Dkt. No. 53-1 , 14. Respondents counter that the frequent denial of discretionary release is the result of the fact that a large percentage of ICE arrests are predicated on an individual's encounter with law enforcement. Dkt. No. 69, 11.
The parties agree that there have been significant delays between an individual's arrest and the initial master calendar hearing over the last few years. 2 In 2014, the median wait time between arrest and initial master calendar hearing was 11 days, Dkt. No. 53-7, 5(a), but by 2017, the median wait time had increased to 42 days, id., 5(d). From August to October 2018, the median wait time was over 80 days, id. , 5(1)-(n), and over a third of those arrested in that period waited more than three months for their initial master calendar hearing, id. , 6.
2 The parties use both average and median wait times throughout their briefings. For consistency's sake, the Court uses only median wait time figures throughout this Opinion and Order. In addition, Respondents report wait times between arrest and filing of the NTA and filing of the NTA and the initial master calendar hearing separately. Accordingly, when discussing Respondents' median wait time figures in this Opinion and Order, the Court will note both the median wait time between filing of the NTA and the initial master calendar hearing and the average wait time between arrest and filing of the NTA for the relevant period and aggregate the two where possible.
4

Respondents attribute these delays to "a steadily increasing caseload over the past few years, a lack ofresources to face the increased demands, and management and staffing challenges." Dkt. No. 71 at 14.
Since August 2018, however, the Executive Office for Immigration Review, which oversees the immigration courts, has taken measures to address these ballooning wait times, including, among others, improving case tracking efforts, moving initial master calendar hearings to the mornings to allow for more time to complete them, and adding new comirooms and judges. See generally Dkt. No. 71 at 15-21. It also put into place a 21-day policy, calling for all initial master calendar hearings to be held within 21 days of the Immigration Court's receipt of the NTA, see Dkt. No. 67,r 34, to be reduced to a 17-day policy by February or March
2019, see id ,r 45-46; Dkt. No. 85-1 ,r 7.
Respondents offer evidence that wait times have decreased substantially in response to these effo1is. For initial master calendar hearings held in January 2019, the median wait time between the filing of the NTA and initial master calendar hearing was 31 days, a number that
decreased to 14 days in February 2019. Dkt. No. 116-3 ,r 5. These numbers do not, however,
include the wait time between arrest and filing of the NTA, which Respondents did not provide for these months. The median wait time between filing of the NTA and initial master calendar hearing declined again to a median of 10 days in March 2019, or a total of roughly 13 days between arrest and initial master calendar hearing once the roughly three-day delay between
arrest and filing of the NTA is accounted for. See id; see also Dkt. No. 116-1 ,r 2. The trend
reversed in April, when the median wait time between arrest and initial master calendar hearing increased to 20 days, including the roughly three-day delay between arrest and filing of the NTA
that month. See Dkt. No. 116-3 ,r 5; Dkt. No. 116-1 ,r 3. Wait times further increased in May
5

2019 to a median of 21 days between arrest and initial master calendar hearing, again including the roughly three-day delay between arrest and filing of the NTA that month. See Dkt. No. 1163 ~ 5; Dkt. No. 116-1 ~ 4. For June and July 2019, the most recent months for which the Court has been provided complete data, median wait times were between 14-15 days and 15-16 respectively, after factoring in the 3-4 day delay between arrest and filing of the NTA for those months. See Dkt. No. 123-3 ~ 8; Dkt. No. 123-1 ~~ 2-3.
B. Facts Specific to Vazquez Perez Vasquez Perez is a citizen of Mexico who came to the United States about twenty years ago and has lived in Westchester County ever since. Dkt. No. 53-16 ~ 2. At the time this motion was filed, he was living in White Plains, New York, with his wife and two sons. Id. ~ 1. Over the years, he has worked jobs in landscaping and restaurant businesses to support his family. Id. ~ 3. On October 7, 2018, Vazquez Perez was arrested by New York State Police. Dkt .No. 70 ~ 6. On October 30, 2018, he was arrested by ICE and served with an NTA. Id.~ 7. The NTA notified him that ICE had determined that it would detain him while his removal proceedings were pending and that he could seek review of his custody determination by an Immigration Judge. Id. The NTA also informed him that a hearing before an Immigration Judge was scheduled for November 15, 2018. Dkt. No. 53-16 ~ 6. However, the NTA was not filed at the Immigration Comi, and thus removal proceedings were not initiated, until November 16, 2018, over two weeks after his arrest and a day after his scheduled initial master calendar hearing. Dkt .No. 70 ~ 7. Vazquez Perez ultimately appeared with counsel for an initial master calendar hearing on November 28, 2018 and was granted release on bond, which he posted on November 30, 2018. Id.~ 8-9. Vazquez Perez's removal proceedings remain pending.
6

C. Procedural Background Vasquez Perez filed this class petition for a writ of habeas corpus and class complaint for declaratory and injunctive relief on November 15, 2018. Dkt. No. 1. At the same time, he also filed a motion to certify a class of "[a]ll individuals who are, have been, or will be arrested by ICE's NYFO and detained under 8 U.S.C. § 1226 for removal proceedings before an immigration judge, and who have not been provided an initial hearing before an immigration judge." Dkt. No. 3. On December 5, 2018, before Respondents responded to either the petition/class complaint or the class certification motion, Vazquez Perez filed a motion for preliminary injunctive and declaratory relief, moving the Court to "preliminarily declar[e] that [Respondents'] practice of detaining putative class members for extended periods without providing prompt access to an immigration judge is unlawful and enjoin[ Respondents] from detaining putative class members without providing them a prompt and meaningful opportunity to challenge their detention and removal before an immigration judge." Dkt. No. 50. Oral argument was held on the motion for preliminary injunctive and declaratory relief on April 8, 2019, and supplemental briefing was subsequently ordered on issues that arose at that argument. See Dkt. No. 96. Following submissions of supplemental briefing, the motion for preliminary injunctive and declaratory relief was fully briefed on July 2, 2019. Dkt. No. 117. Respondents have also continued to provide this Court with updated data on wait times between arrest and initial master calendar hearing at the Immigration Court throughout this litigation, most recently on September 4, 2019. See Dkt. Nos. 85, 116, 123. Respondents have yet to file an opposition to the motion for class certification. At the April 8 oral argument, the Court raised this with Respondents, and they expressed a willingness
7

to stipulate, for purposes of the motion for preliminary injunctive or declaratory relief, to "conditional or preliminary certification of the class." Dkt. No. 96 at 65. At the conclusion of oral argument, the Court directed counsel for Respondents to confer with counsel for Vazquez Perez regarding briefing on the class certification motion, see id. at 67, 83, and it noted that "in the absence of a stipulation" to conditional or preliminary certification of the class, it would "need briefing." Id. at 83. As of the date of this Opinion and Order, the Court has not received any briefing from Respondents on that motion, and-in light of Respondents' expressed willingness to stipulate to conditional or preliminary certification-it construes the decision not to file an opposition as a stipulation to the conditional certification of the putative class for purposes of the motion for preliminary injunctive or declaratory relief that is now before the Corni. See, e.g., Strauch/er v. Shah, 891 F. Supp. 2d 504, 517 (S.D.N.Y. 2012) ("[T]he 'court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers."' (quoting Conte & Newberg, Newberg on Class Actions § 9:45 (4th ed. 2002))). II. DISCUSSION
As a threshold matter, the Court must determine whether it has jurisdiction to enter the relief Vazquez Perez requests here. It is thus impmiant to pinpoint the exact relief he seeks, which has shifted throughout this litigation. In his supplemental briefing, Vazquez Perez clarifies that he seeks either "an order that the government must hold initial master calendar hearings for each member of the putative class within 7 to 10 days of arrest by Immigration and Customs Enforcement ... and a declaration that the government's ongoing and years-long practice of routinely delaying initial master calendar hearings beyond 10 days violates the Due Process Clause and the Administrative Procedure Act," or, in the alternative, "only the
8

declaration." Dkt. No. 107 at 1 (emphasis added). For the reasons stated below, the Court finds that it cannot grant any of Vazquez Perez's requested relief at this juncture.
A. Section 1252(f)(l) Strips the Court of Jurisdiction to Issue Classwide In,junctive Relief
Respondents argue that 8 U.S.C. § 1252(f)(l) strips the Court of jurisdiction to issue the classwide injunctive relief Vazquez Perez seeks in this case, and the Court agrees. For the reasons stated below, the Court finds that Vazquez Perez seeks an injunction that enjoins or restrains the operation of 8 U.S.C. § 1229(b) on a classwide basis-an injunction that, pursuant to Section 1252(f)(l), this Court does not have jurisdiction to issue.
Whether the injunctive relief sought by Vazquez Perez "enjoin[s] or restrain[s] the operation" of Section l 229(b) such that this Court does not have jurisdiction under Section 1252(f)(l) to grant that relief is a question of statutory interpretation. The Court begins its inquiry with the text of the relevant statutes, Sections 1252(f)(l) and 1229(b). Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) ("Statutory interpretation, as we always say, begins with the text.").
Section 1252(f)(l) provides that Regardless of the nature of the action or claim or of the identity of the paiiy or parties bringing the action, no comi (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of paii IV of this subchapter, ... other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. 8 U.S.C. § 1252(f)(l). By its plain language, this provision limits lower courts' abilities to "enjoin or restrain the operation of the provisions of Part IV" of the immigration laws, which includes 8 U.S.C. §§ 1221-1232, "[r]egardless of the nature of the action or claim or of the identity of the paiiy or parties bringing the action." However, the last clause of the statute contains an explicit carve out
9

allowing courts to continue to grant relief-including that which may enjoin or restrain the operation of Sections 1221-1232-on an individual basis. Accordingly, the Supreme Court has characterized Section 1252(f)(l) as "a provision prohibiting classwide injunctions against the operation of' Sections 1221-1232. Nken v. Holder, 556 U.S. 418,431 (2009) (emphasis added); see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999) ("[Section 1252(f)(l )] prohibits federal comis from granting classwide injunctive relief against the operation of§§ 1221-123[2], but specifies that this ban does not extend to individual cases."). 3
To determine the contours of the limitations Section 1252(f)(l) places on its jurisdiction, the Court must determine what constitutes "enjoining" or "restraining" the "operation" of Sections 1221-1232. In doing so, the Court is guided by the Supreme Cami's admonition that Section 1252(f)(l) "is nothing more or less than a limit on injunctive relief," An1.-Arab AntiDiscrimination Comm., 525 U.S. at 481, as well as the title of the subsection within which Section l 252(f)(l) appears, "Limit on Injunctive Relief." In order to give effect to both "enjoin" and "restrain" as distinct forms of injunctive relief-and to avoid rendering either mere surplusage-the Court adopts the sensible interpretation of the First, Third, and Ninth Circuits that "enjoin" and "restrain" refer respectively to permanent and temporary injunctive relief. See Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011); Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 201 O); Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003). "Operation" is, in turn, defined as a "method or manner of functioning." Operation, Merriam-Webster Online Dictionary (Aug. 30, 2019), https://www.merriam-webster.com/dictionary/operation. The relevant inquiry, then, is whether the temporary injunctive relief Vazquez Perez seeks on a
3 The statute appears to exclude the Supreme Court entirely from its jurisdictional prohibition.
10

classwide basis would enjoin or restrain the method or manner of functioning of Sections 12211232.
Having so delineated the contours of the limits on classwide injunctive relief in Section 1252(±)(1), the Comi finds that the requested injunction would enjoin or restrain, at a minimum, the operation of Section l 229(b). That section provides that an initial master calendar "hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear." 8 U.S.C. § 1229(b)(l). By its terms, this provision sets a time before which the initial master calendar hearing may not be scheduled but provides no time beyond which the initial master calendar hearing cannot be scheduled. In other words, it prescribes a floor but no ceiling with respect to the timing of initial master calendar hearings. Because Congress, in its judgment, chose not to mandate a statutory ceiling, an injunction imposing one where the statute is silent would displace that judgment in a way that would enjoin or restrain the method or manner of Section 1229(b)'s functioning. Accordingly, Section 1252(±)(1) strips this Comi ofjurisdiction to issue the injunction Vazquez Perez seeks here.
This conclusion is in accord with the Sixth Circuit's decision in Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018), in which that comi found that a classwide injunction that "created out of thin air a requirement for bond hearings that does not exist in the statute" restrained the operation of the statute. Id. at 879. It is, however, contrary to the conclusion reached by other courts. See, e.g., Padilla v. I.CE., 354 F. Supp. 3d 1218, 1231-32 (W.D. Wash. 2018). But these comis have relied, in reaching a contrary conclusion, on one or more of the counterarguments that are addressed and rejected below.
1. The Court Does Not Find Vazquez Perez's Counterarguments Persuasive
11

Vazquez Perez seeks to evade the conclusion that the plain language of the statute compels in three ways. First, he argues that if Section 1252(f)(l) strips the Court of jurisdiction to issue the requested injunction, it amounts to a stripping of habeas jurisdiction without the requisite clear statement. Second, he argues that even if Section 1252(f)(l) does bar this Court from issuing classwide injunctive relief in some cases, it does not bar it from doing so in cases in which all members of the class are in removal proceedings. Finally, he argues that the injunction he seeks does not "enjoin or restrain the operation of' any provision of Sections 1221-1232, but rather enjoins only statutory and constitutional violations thereof. In other words, he argues, the requested injunction does not enjoin the proper operation of Sections 1221-1232. The Court finds each of these arguments unpersuasive.
a) Section 1252(f)(l), As Interpreted, Does Not Strip the Court of Habeas Jurisdiction without a Clear Statement
First, Vazquez Perez argues that Section 1252(f)(l) strips habeas jurisdiction without the requisite "'clear and unambiguous statement' of an intention to restrict habeas court authority." Dkt. No. 107 at 3 (quoting IN.S. v. St. Cyr, 533 U.S. 289, 305 (2001)). To address this argument, the Court first accepts without deciding the general availability of classwide habeas relief in light of the Respondents' stipulation to class certification. See supra Section LC.
Even with that premise accepted, the Court need not decide whether Section 1252(f)(l) provides a sufficiently clear habeas-stripping statement because Section 1252(f)(l)'s elimination of lower comis' ability to issue habeas relief on a classwide basis does not implicate the clear statement rule. Rather, the clear statement rule requires "a clear statement of congressional intent to repeal habeas jurisdiction." St. Cyr, 533 U.S. at 298 (emphasis added). In other words, the clear statement rule applies where a statute seeks to eliminate a court's habeas jurisdiction entirely. However, the clear statement rule is inapplicable where, as here, the statute does not
12

eliminate habeas jurisdiction. Indeed, Section 1252(f)(l) does not bar petitioners from seeking writs of habeas corpus or even from combining a petition for habeas corpus with a request for injunctive relief; it simply requires them to do so by way of an individual-as opposed to a classwide-petition. A statute that limits a court's habeas jurisdiction to the consideration of individual petitions does not, by its terms, eliminate habeas jurisdiction-which remains available to individual petitioners-and thus does not implicate the clear statement rule. 4
The Second Circuit cases Vazquez Perez cites in supp01i of his argument to the contrary are inapposite, because in each case the Second Circuit had before it statutes that potentially foreclosed all habeas jurisdiction: See Ragbir v. Homan, 923 F.3d 53, 73-74 (2d Cir. 2019) (discussing Section 1252(g), which "foreclosed all grants of jurisdiction" including the "minimum scope of the privilege of the writ of habeas corpus" (emphasis added)); Du v. INS, 293 F.3d 36, 40-41 (2d Cir. 2002) (finding that "habeas jurisdiction under§ 2241 was not repealed by AEDPA and IIRIRA" for either criminal or non-criminal aliens (emphasis added) (quoting St. Cyr, 533 U.S. at 314)). Section 1252(f)(l), in contrast, expressly places individual petitions outside of its jurisdiction-stripping scope and therefore preserves, not repeals, the writ of habeas corpus. The clear statement rule simply does not apply where a statute only modifies the form in which habeas relief is available (i.e., by individual or classwide adjudication). Though there is other non-binding authority to the contrary, the Comi does not find those cases persuasive for the reasons articulated above. See, e.g., Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018).
b) Section 1252(f)(l) Bars Classwide Injunctive Relief for a Class of Individuals, All of Whom Removal Proceedings Have Been Initiated Against
4 Moreover, as discussed above, Section 1252(t)(l) excludes the Supreme Court from its operation and thus appears to limit only lower courts' ability to grant classwide habeas relief.
13

Second, Vazquez Perez argues that Section 1252(f)(l) does not bar classwide injunctive relief where all of the members of the class are in removal proceedings. Dkt. No. 107 at 5-7. This argument is based on the statute's individual carve out, which allows courts to grant injunctive relief, even that which may enjoin or restrain the operation of Sections 1221-1232, "to an individual alien against whom proceedings under such part have been initiated." 8 U.S.C. § 1252(f)(l). As an initial matter, the class Vazquez Perez proposes is, in fact, broader than aliens against whom removal proceedings have been initiated-it includes not only those against whom removal proceedings have not yet been initiated, but also those who have not even been arrested by ICE. See Dkt. No. 3 at 1. Furthermore, the Comi does not read the statute's limited exception allowing injunctive relief "for [an] individual alien against whom proceedings under such part have been initiated" as an exception allowing for injunctive relief for a class of such aliens. As the Sixth Circuit concluded, this argument does "violence to the text of the statute," by "reading out the word 'individual' before 'alien,"' Hamama, 912 F.3d at 877, and, if accepted, would create an exception that would swallow the rule. The Court thus concludes, in accord with Hamama, that the most sensible reading of the provision is that it prohibits granting any classwide injunctive relief against the operation of Sections 1221-1232, regardless of the composition of the class. See id. at 877-78; see also Nken, 556 U.S. at 431 (characterizing Section l 252(f)(l) as "a provision prohibiting classwide injunctions against the operation of' Sections 1221-1232). Though other courts have found to the contrary, the Court does not find this non-binding authority persuasive for the reasons articulated above. See, e.g., Marin, 909 F.3d at 256 ("All of the individuals in the putative class are 'individual[s] against whom proceedings under such paii have been initiated' and are pursuing habeas claims, albeit as a class, which nowhere appear affected by§ 1252(f)(l ).").
14

Califano v. Yamasaki, 442 U.S. 682 (1979), cited by Vazquez Perez, does not compel the Comito conclude otherwise. In that case, the Supreme Court found class relief available under 42 U.S.C. § 405(g) because there was no "direct expression by Congress of its intent to depmi from the usual course of trying 'all suits of a civil nature' under the [Federal Rules of Civil Procedure]." Id. 700. However, Section 1252(±)(1) is readily distinguishable from the provision at issue in Yamasaki, which provided generally for judicial review. 5 Section 1252(±)(1) is not a general judicial review provision and, as discussed above, its entire structure manifests a direct expression of Congress' intent to depmi from the usual course and preclude lower comis from issuing any classwide injunctive relief. Indeed, the statute's entire purpose is to preclude injunctive relief except with respect to "an individual alien." 8 U.S.C. § 1252(±)(1). This direct expression of intent is further reinforced by the first clause of the provision, which provides that no comi shall have jurisdiction to enjoin or restrain the operation of Sections 1221-1232 "regardless ofthe nature ofthe action or claim or of the identity ofthe party or parties bringing the action." Id. § 1252(±)(1).
c) The Court May Not, Consistent with Section 1252(f)(l), Grant Classwide Injunctive Relief for Constitutional Violations Where Doing So Would En.join or Restrain the Operation of Sections 1221-1232
Finally, Vazquez Perez argues that Section 1252(±)(1) "does not bar injunctions that do not conflict with the detention statutes but that prohibit policies and practices that violate constitutional, statutory, or other enforceable protections because such injunctions do not 'enjoin or restrain the operation of any provisions of the Immigration and Nationality Act." Dkt. No.
5 The statute at issue in Yamasaki reads, in pertinent part, "Any individual, after any final decision of the Secretary made after a hearing to which he was a party ... may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow." 42 U.S.C. § 405(g).
15

107 at 10. In other words, he argues that Section 1252(±)(1) does not preclude courts from issuing classwide injunctions where such injunctions only enjoin or restrain violations of Sections 1221-1232 or constitutional violations. An injunction of that nature, he argues, would not enjoin or restrain the operation of those provisions.
With respect to claims that defendants are acting in violation of a provision within Sections 1221-1232, the Comi agrees that Section 1252(±)(1) may not strip it ofjurisdiction to enjoin explicit violations of Sections 1221-1232 as written, because such an injunction cannot be said to "enjoin or restrain" the operation of those provisions.6 Accordingly, if, for example, Section l 229(b) required all initial master calendar hearings to be held within 21 days of arrest and the Executive Office of Immigration Review adopted a policy of providing such hearings within a month of arrest, the Court may have jurisdiction to issue an injunction on a classwide basis requiring compliance with the statute as written. Indeed, several of the cases that adopt Vazquez Perez's argument as to the meaning of enjoin or restrain involve alleged statutory, rather than constitutional, violations. See, e.g., Damus v. Nielsen, 313 F. Supp. 3d 317, 328 (D.D.C. 2018); R.IL-R v. Johnson, 80 F. Supp. 3d 164, 183-84 (D.D.C. 2015). However, Vazquez Perez is not seeking a classwide injunction to remedy any alleged statutory violations of Sections 1221-1232.
Vazquez Perez also insists, though, that this Court may grant the requested injunction even in the absence of alleged statutory violations in order to enjoin alleged constitutional violations. His argument is that because such an injunction does not enjoin or restrain the
6 Indeed, the Supreme Court has suggested that classwide injunctive relief enjoining the government from violating its own statutes as written may not be bmTed by Section 1252(t)(l). See Jennings v. Rodriguez, 138 S. Ct. 830,851 (2018) (noting that the Court of Appeals "held that [Section 1252(t)( 1)] did not affect its jurisdiction over respondents' statutOJJ' claims because those claims did not seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct ... not authorized by the statutes") (quotation omitted).
16

proper, i.e. constitutional, operation of the immigration statutes, it does not fall within Section 1252(f)(l)'s ambit. Dkt. No. 107 at 10-11. Some courts have so held. See, e.g., Padilla, 354 F. Supp. at 1231-32; Saravia v. Sessions, 280 F. Supp. 3d 1168, 1205 n.19 (N.D. Cal. 2017). However, the Court does not find this non-binding authority persuasive. While Section l 252(f)( 1) may not affect the Comi' s jurisdiction over statutory claims where "those claims did not seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct ... not authorized by the statutes, ... [t]his reasoning does not seem to apply to an order granting relief on constitutional grounds." Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018) (quotation omitted). Indeed, as discussed above, an order granting classwide relief on constitutional grounds-and requiring initial master calendar hearings to be held within a prescribed time period-vvoitld restrain the operation of at least Section 1229(b), which provides no such time period. This Court is stripped of its jurisdiction to grant such relief by Section 1252(f)(l) notwithstanding the argument that classwide relief is needed to address constitutional violations. A conclusion to the contrary would allow an end-run around Section 1252(f)(l)'s bar on classwide injunctive relief wherever a paiiy could plausibly allege constitutional violations, and would carve out another exception to the limits on injunctive relief in Section 1252(f)(l) that would swallow the rule in the mine-run of cases.
In sum, in accord with the plain language of the statute-and finding none of Vazquez Perez's arguments to the contrary persuasive-the Court concludes that because the injunctive relief Vazquez Perez requests would restrain the operation of Section 1229(b) on a classwide basis, the Court is stripped of its jurisdiction to grant such relief by Section 1252(f)(l).
B. Section 1252(f)(l) Does Not Strip the Court of Jurisdiction to Issue Declaratory Relief
17

Nonetheless, Section 1252(±)(1) does not strip this Comi of jurisdiction to issue declaratory relief on a classwide basis. In Nielsen v. Preap, 139 S. Ct. 954 (2019), a plurality of the Supreme Court recently clarified that the statute's jurisdictional bar does not prohibit classwide declaratory relief. In that case, the Supreme Court reviewed a lower court decision that certified a habeas class of all aliens in California "who are or will be subjected to mandatory detention under 8 U.S.C. § 1226(c)," and then granted the class both declaratory relief and a preliminary injunction. Id. at 961 (quotation omitted). The Government appealed and made the same argument it does here: "that under 8 U.S.C. § 1252(±)(1), th[e] [district] court lacked jurisdiction to enter the requested injunction." Id. at 962 (plurality opinion). A plurality of the Supreme Court, however, concluded that it "need not decide" this issue because, ilTespective of "[w]hether the [lower] court had jurisdiction to enter such an injunction," the "District Court had jurisdiction to entertain the plaintiffs' request for declaratory relief" Id. at 962 (emphasis added). In other words, a plurality of the Supreme Court has stated that§ 1252(±)(1) does not prohibit district courts from granting classwide declaratory relief. Id.; accord Jennings, 138 S. Ct. at 851 (directing the Ninth Circuit to reconsider whether it has jurisdiction under Section 1252(±)(1) to grant classwide injunctive relief or whether "it may issue only declaratory relief' pursuant to that provision); Am.-Arab Anti-Discrimination Comm., 525 U.S. at 481 ("By its plain terms, and even by its title, [8 U.S.C. § 1252(±)(1)] is nothing more or less than a limit on injunctive relief It prohibits federal courts from granting classwide injunctive reliefagainst the operation of§§ 1221-123[2] ...." (emphasis added)).
Even if this were not binding Supreme Court authority on point, the Court would reach the same conclusion because the statute's plain text compels this result. To start, the provision itself does not mention declaratory relief. It speaks only of injunctions that "enjoin" on a
18

permanent basis or "restrain" on a temporary one the operation of Sections 1221-1232. If Congress had wanted to use this provision to also strip courts of jurisdiction to grant declaratory relief, it could have done so. Indeed, in a separate provision of the very same statute, Congress stripped courts ofjurisdiction to "enter declaratmy, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 235(b)(l) ...." 8 U.S.C. § 1252(e)(l)(A) (emphasis added). Congress could have included the same language in Section 1252(f)(l), but it chose not to. This Court agrees with the Ninth Circuit that '"[e]njoin or restrain' should not be read to include declaratory relief when Congress could easily have included 'declaratory relief explicitly had it chosen to do so." Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 201 0); see also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011 ).
C. The Court Cannot Issue Preliminary Declaratory Relief Because No Such Relief Exists
Though the Court is not barred by Section 1252(f)(l) from issuing declaratory relief, it nonetheless cannot issue the preliminary declaration Vazquez Perez seeks in this motion. As a sister District in this Circuit noted, "there is no clear precedent authorizing ... preliminary declaratory relief," and the Court finds that no such relief exists. Riddick v. Semple, Case No. 3:18-cv-313, 2019 WL 851382, at *3 (D. Conn. Feb. 22, 2019).
The Court understands the request for preliminary declaratory relief made by Vazquez Perez in this motion to be seeking a preliminary declaration of rights that would precede a final determination at a later stage of this litigation, with entitlement to such relief at this juncture turning on whether he meets the preliminary injunction factors. See Dkt. No. 96 at 14: 19-21 (The Court: "You still have to meet the preliminary injunction factors [for a preliminary declaration], right?" Mr. Hodgson: "Yes, your Honor.").
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This raises the question whether, as a procedural matter, preliminary declaratory relief is available. There is disagreement between comis within this Circuit and among courts without as to this question. Though at least one comi in this Circuit has found preliminary declaratory relief to be an available remedy, see Merrill Lynch, Pierce, Fenner & Smith v. Doe, 868 F.Supp. 532, 535-36 (S.D.N.Y. 1994), many others to have considered the issue have questioned, without definitively deciding, whether such relief exists, see, e.g., Rheaume v. Pallito, Case No. 5: l l-cv72, 2012 WL 787404 (D. Vt. Mar. 8, 2012) ("Preliminary declaratory relief, ifit exists, is subject to the same stringent standard [as preliminary injunctive relief]." (emphasis added)); Murray v. New York, 604 F. Supp. 2d 581, 587 (W.D.N.Y. 2009) ("As to plaintiffs claim for preliminary declaratory relief, it is not entirely clear that such relief is ever available."). Likewise, while the Third Circuit has found that parties may obtain preliminary declaratory relief under some circumstances, Disabled in Action ofPennsylvania v. SEPTA, 539 F.3d 199, 215 (3d Cir. 2008), the Seventh Circuit has noted, without deciding for itself, that there is disagreement as to whether "such a creature" exists, Original Great Am. Chocolate Chip Cookie Co., Inc. v. River Valley Cookies, Ltd., 970 F.2d 273, 276 (7th Cir. 1992).
In resolving this unsettled question of law in the negative, the Court is guided by the Supreme Court's suggestion that "prior to final judgment there is no established declaratory remedy comparable to a preliminary injunction," Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975), as well as the text of the Declaratory Judgment Act, Federal Rule of Civil Procedure 65, and the general prohibition on issuing advisory opinions.
Preliminary declaratory relief appears nowhere in federal statutes or the Federal Rules of Civil Procedure and is inconsistent with-and therefore not explicitly allowed by-the statutes and rules governing related forms of relief, including declaratory judgments and preliminary
20

injunctions. A preliminary declaration is, by its nature, not a declaratory judgment. The Declaratory Judgment Act provides that a federal court, "upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a) (emphasis added). It further provides that "[a]ny such declaration shall have the force and effect of afi.nal judgment or decree and shall be reviewable as such." Id. (emphasis added). A preliminary declaration, however, does not declare, but rather only provisionally declares the rights of interested parties subject to a subsequent final determination. Merrill Lynch, 868 F.Supp. at 535. Because a preliminary declaration anticipates a final declaratory judgment-and, indeed, requires one to settle the rights and legal relations of the interested parties-it does not have the force and effect of a final judgment or decree. 7 A preliminary declaration is likewise not encompassed by the relief contemplated in Federal Rule of Civil Procedure 65 because "[a] preliminary injunction or temporary restraining order must require or restrain acts by people and may bind only the parties or their 'officers, agents, servants, employees, and attorneys,' or anyone 'in active conce1i or paiiicipation' with those people." Fisher v. Cook, Case No. 2:19cv-02034, 2019 WL 1787338, at *1 (W.D. Ark. Apr. 24, 2019) (quoting Fed. R. Civ. P. 65(d)). Because "[a] general preliminary declaration about what the law is does not specifically bind anyone," such relief is not authorized by Rule 65. Id. (emphasis added).
Preliminary declaratory relief is problematic for the additional reason that it simultaneously provides the parties with too little and too much relief at this early stage of the litigation. Because a preliminary declaration-unlike a final declaration-does not specifically
7 Nor is a preliminary declaration immediately reviewable, though by statute, both final declaratory judgments and preliminary injunctions are. See 28 U.S.C. § 220l(a); 28 U.S.C. § 1292(a)(l).
21

bind anyone, it is more akin to an advisory opinion, which the Court is precluded from issuing by history and the implicit policies embodied in Article III. See Flast v. Cohen, 392 U.S. 83, 96 (1968) ("[I]t is quite clear that 'the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advismy opinions."' (quoting C. Wright, Federal Courts 34 (1963))). On the other hand, where, as here, a party seeks preliminary declaratory relief with respect to the "ultimate issue for determination," a "preliminary ruling in its favor would," in effect, "grant it full relief on that issue." Alpha CapUal Anstalt v. Ness Energy Int'!, Inc., Case No. CIV-10-1218-D, 2011 WL 232393, at *12 (W.D. Okla. Jan. 24, 2011). Under those circumstances, preliminary declaratory relief would allow litigants to wrest from the Comi a final resolution that defies not only this Cami's Article III powers but also the Declaratory Judgment Act. Id.
In light of the problems inherent in preliminary declaratory relief and the fact that it is not provided for by either rule or statute and appears only rarely in the case law, the Comi is persuaded that there "is [not] such a creature." Original Great Am. Chocolate Chip Cookie Co., 970 F.2d at 276. The Court thus denies Vazquez Perez's request for preliminary declaratory relief.
* * * * * Accordingly, Vazquez Perez's motion for preliminary injunctive or declaratory relief is DENIED because the Court does not have jurisdiction to issue any injunctive relief on a classwide basis, and it cannot issue preliminary declaratory relief as no such relief exists. However, Section 1252(£)(1) does not bar the Court from issuing final declaratory relief on a classwide basis, and thus the Court does have subject-matter jurisdiction to enter a final judgment in this case. The Court intends to do so as expeditiously as possible and requires the
22

parties to meet and confer as to what additional procedural steps are necessary to achieve that end.
The Court also notes in conclusion that the denial of the class-wide relief sought in this motion is not meant to suggest a lack of seriousness of the issues raised in the underlying claims. Indeed, Respondents have conceded that members of this conditional class have a constitutional right to a prompt initial master calendar hearing. Dkt. No. 96 at 54:9-20. Between now and final resolution of these claims, the Court fully expects that Respondents will continue to ensure, consistent with Respondents' Counsel's representations to the Comi at oral argument on this motion on April 8, that no class members will face any longer than a 17-day delay between filing of the NTA and initial master calendar hearing. Dkt. No. 96 at 47: 11-50:25. Counsel for Respondents shall promptly notify the Comi of any instances of failing to adhere to those representations. The Comi also requires Respondents to provide continuing monthly updates on data regarding median wait times between arrest and scheduling of initial master calendar hearings. V. CONCLUSION
For the reasons articulated above, Vazquez Perez's motion for preliminary injunctive or declaratory relief is DENIED.
Respondents are ORDERED to notify the Court if any individuals have waited longer than 17 days between the filing of the NTA and the initial master calendar hearing.
Respondents are also ORDERED to continue to provide monthly updates on data regarding median wait times between arrest and scheduling of initial master calendar hearings.
The parties are ORDERED to meet and confer as to what proposed additional procedural steps are necessary, if any, before the Court can rule on the request for a final declaratory
23

judgment. Within one week of the date of this Opinion and Order, the parties shall submit a joint letter with their proposal. If no agreement is reached, the parties should each provide their respective proposals. The parties shall also continue to discuss settlement during their meet and confer.
This resolves Dkt. Nos. 3 and 50.
SO ORDERED.

Dated: September

2019

New York, New York

United States District Judge

24

 
 Case 1:18-cv-10683-AJN Document 160
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Filed 11/30/20

Page 1 of 39

..
SDCSDNI'

'I

DOCUMENT

KU:C : RO'.NICA1.LY- FILED DOC/#:_ _ _ _ _ _ __

DAT FlLED~ 1_1/30/20

Uriel Vazquez Perez, on his own behalf and on behalf of others similarly situated,
Petitioner-Plaintiff,
–v–
Thomas Decker, et al.,
Respondents-Defendants.

18-cv-10683 (AJN) OPINION & ORDER

ALISON J. NATHAN, District Judge: Petitioner-Plaintiff Uriel Vazquez Perez brings this class petition for habeas corpus relief
and class complaint against Respondents-Defendants Thomas Decker, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, and others, alleging that ICE’s practice of failing to provide prompt initial appearances before an Immigration Judge violates the Constitution, as well as the Administrative Procedure Act.1 Now before the Court is Vazquez Perez’s unopposed motion to certify a class of all individuals who have been, or will be, arrested by ICE’s New York Field Office and detained under Section 1226 of Title 8 of the United States Code for removal proceedings and who have not been provided an initial hearing before an Immigration Judge, as well as the parties’ cross-motions for summary judgment. For the reasons set forth below, Vazquez Perez’s motion for class certification is

1 Vazquez Perez’s class petition and complaint, filed on November 15, 2018, advanced claims related to (1) violations of Procedural Due Process; (2) violations of Substantive Due Process; (3) violations of the Fourth Amendment; (4) violations of the APA related to presentment delays; and (5) violation of the APA related to ICE’s failure to exercise required individualized discretion in its bond determinations. However, he has agreed to withdraw without prejudice the third and fifth of these claims. See Dkt. No. 127. Accordingly, only the first, second, and fourth of these claims is now before the Court. See Dkt. No. 133 at 2 n.3.
1

Case 1:18-cv-10683-AJN Document 160 Filed 11/30/20 Page 2 of 39
GRANTED, his motion for summary judgment is GRANTED in part and DENIED in part, and the Government’s cross-motion for summary judgment is GRANTED in part and DENIED in part. I. BACKGROUND
A. Procedural Background On November 15, 2018, Vasquez Perez filed a class petition for a writ of habeas corpus and class complaint for declaratory and injunctive relief. Dkt. No. 1. At the same time, he also filed a motion to certify a class of “[a]ll individuals who are, have been, or will be arrested by ICE’s [New York Field Office] and detained under 8 U.S.C. § 1226 for removal proceedings before an immigration judge, and who have not been provided an initial hearing before an immigration judge.” Dkt. Nos. 3–4. On December 5, 2018, before the Government responded to either the class petition/ complaint or the class certification motion, Vazquez Perez filed a motion for preliminary injunctive and declaratory relief. Dkt. No. 3. On September 30, 2019, the Court conditionally certified the putative class, see Dkt. No. 124 at 8, and denied the motion for preliminary injunctive and declaratory relief, concluding that 8 U.S.C. § 1252(f)(l) stripped it of jurisdiction to issue classwide injunctive relief, see id. at 9–17, and it could not grant preliminary declaratory relief because such relief does not exist, id. at 17–22. At the same time, the Court concluded that 8 U.S.C. § 1252(f)(1) does not strip it of jurisdiction to issue final declaratory relief on a classwide basis. Dkt. No. 124 at 17–19. In the Court’s September 30, 2019 Opinion and Order, the Court ordered the Government to comply with certain reporting requirements, including notifying the Court if any individuals have waited longer than 17 days between the filing of the notice to appear, the charging
2

Case 1:18-cv-10683-AJN Document 160 Filed 11/30/20 Page 3 of 39
document that initiates removal proceedings, and the initial hearing before an Immigration Judge and continuing to provide monthly updates on data regarding median wait times between arrest and scheduling of initial hearings. Id. at 23. The Court further ordered the parties to meet and confer and submit a proposal for the next procedural steps in this matter. See id.
The parties proposed submitting simultaneous supplemental briefing and requested that the Court convert their prior submissions on the motion for preliminary injunctive and declaratory relief, together with their supplemental briefing, into cross-motions for summary judgment and deem the motions fully submitted. See Dkt. No. 127. The Court adopted this request, see Dkt. No. 128, and on November 1, 2019, the parties filed their supplemental briefing. See Dkt. Nos. 133–135. Accordingly, the parties’ cross-motions for summary judgment are now fully submitted.
B. Factual Background The Court assumes familiarity with the pertinent facts of this case—which are undisputed unless otherwise noted—as set out in its September 30, 2019 Opinion and Order. See Dkt. No. 124. The Court revisits that factual background here as necessary and sets out further development of the record since the September 30 Opinion and Order. The immigration laws authorize Immigration and Customs Enforcement to charge individuals as removable, arrest individuals subject to removal, and then detain them pending removal proceedings. See Demore v. Kim, 538 U.S. 510, 523–26 (2003). As relevant here, 8 U.S.C. § 1226 authorizes detention of any individual in removal proceedings and requires detention in some cases. See 8 U.S.C. §§ 1226(a), (c). Following arrest, ICE officers may release an individual detained pursuant to § 1226(a) if she “demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that [she] is
3

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likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). Determinations on removability and custody are made by ICE and recorded in the Notice to Appear.
Individuals who are arrested by ICE’s New York Field Office and detained are placed in civil removal proceedings at the New York City Immigration Court at 201 Varick Street in Manhattan. Dkt. No. 59-1 ¶ 23; Dkt. No. 67 ¶ 16. The Immigration Court obtains jurisdiction over removal proceedings when an ICE officer files the NTA. 8 C.F.R. § 1003.14(a). While awaiting their initial appearance before the Immigration Judge, individuals are detained in criminal jails pursuant to a contract with ICE to house immigration detainees. Dkt. No. 59-1 ¶ 8.
The initial appearance, also known as the initial master calendar hearing, is the first substantive step in the removal proceedings. The initial master calendar hearing is typically an individual’s first opportunity to appear before an Immigration Judge. In order to permit individuals to secure counsel before their initial master calendar hearing, 8 U.S.C. § 1229 provides that the initial master calendar hearing may not be scheduled earlier than 10 days after service of the notice to appear unless the individual requests in writing an earlier hearing date. See 8 U.S.C. § 1229(b)(1). The Government does not dispute that most detainees waive the 10day waiting period this Section provides. See Dkt. No. 59-1 ¶ 7.
In addition to all of the procedural protections provided by Immigration Judges at the initial master calendar hearing, see Dkt. No. 124 at 3–4, these hearings are also typically the first opportunity for indigent individuals to seek pro bono legal representation, Dkt. No. 53-1 ¶ 10, and for the Immigration Judge to review ICE’s custody determinations and possibly release eligible individuals on bond, Dkt. No. 53-3 ¶¶ 13–14; Dkt. No. 53-1 ¶¶ 20, 22; Dkt. No. 67 ¶ 15. Though, as discussed above, ICE makes an initial custody determination following arrest, Vazquez Perez presents uncontradicted evidence that, from 2016 until at least November 2018,
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ICE’s New York Field Office operated under a “no bond” policy and issued bond in none of its

cases. Dkt. No. 59-1 ¶ 14.

The parties agree that there have been significant delays between an individual’s arrest

and the initial master calendar hearing over the last few years. In 2014, the median wait time

between arrest and initial master calendar hearing was 11 days, Dkt. No. 59-7 ¶ 5(a), but by

2017, the median wait time had increased to 42 days, id. ¶ 5(d). In April 2018, median wait

times increased precipitously, and, as demonstrated in the table below, this increase accelerated

in the spring and summer of 2018.

Month April 2018

Median Wait Time
58

25th Percentile Wait Time 45

75th Percentile Wait Time 64

May 2018

61.5

34

74

June 2018

75

54

88

July 2018

80

42

96

August 2018

85

72

97.5

September 2018

83

71

98

Dkt. No. 59-7 ¶ 5 (h)–(m). Vazquez Perez presents evidence that for initial master calendar hearings that took place between August and October 2018, wait times were over two months in 86% of cases and over three months in 38%. See id. ¶ 6. The Government attributes these delays to “a steadily increasing caseload over the past few years, a lack of resources to face the increased demands, and management and staffing challenges.” Dkt. No. 71 at 14.
In August 2018, however, the Executive Office for Immigration Review, which oversees the Immigration Courts, began taking measures to address these ballooning wait times, including, among others, improving case tracking efforts, moving initial master calendar
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hearings to the mornings to allow for more time to complete them, and adding new courtrooms

and judges. See generally Dkt. No. 71 at 15–21. It also put into place a 21-day policy, calling

for all initial master calendar hearings to be held within 21 days of the Immigration Court’s

receipt of the NTA, see Dkt. No. 67 ¶ 34, which was reduced to a 17-day policy in early 2019,

see id. ¶ 45–46; Dkt. No. 85-1 ¶ 7.

The Government offers evidence that, in response to these measures, wait times between

filing of the NTA and initial master calendar hearing began trending down in October 2018 and

decreased substantially from February 2019 until issuance of the Court’s September 30, 2019

Opinion and Order.

Month October 2018

Median Wait Time
582

25th Percentile Wait Time 43

75th Percentile Wait Time 70

November 2018

50

34

69

December 2018

47

27

62

January 2019

31

16

49

February 2019

14

12

16

March 2019

10

8

11

April 2019

17

13

19

May 2019

18

11

24

June 2019

11

9

15

July 2019

12

9

15

August 2019

8

6

12

2 Vazquez Perez presents evidence that the median wait time between arrest and initial master calendar hearing in October 2018 was 81 days. See Dkt. No. 59-7 ¶ 5(n).
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September 2019

13

10

16

Dkt. No. 130-1 ¶ 8. Nonetheless, between April and September 2019, 108 detained individuals

received initial master calendar hearings more than 17 days after filing of the NTA. See Dkt. No.

130-1 ¶ 7. And these wait times do not reflect the time between arrest and filing of the NTA,

which the Government’s data, where available, indicates averaged between two and three days

during this period. See Dkt. No. 89 ¶ 3; Dkt. No. 116-1 ¶¶ 2–4; Dkt. No. 129-1 ¶ 5.

For initial master calendar hearings held between October 2019 and February 2020, the

median wait time between the filing of the NTA and initial master calendar hearing hovered

between 13 and 14 days, with 25th percentile wait times and 75th percentile wait times ranging

between 10–12 and 14–16 days respectively.

Month October 2019

Median Wait Time
13

25th Percentile Wait Time 10

75th Percentile Wait Time 14

November 2019

13

10

15

December 2019

14

10

14

January 2020

13

12

16.5

February 2020

13

12

14

See Dkt. No. 137-2 ¶ 5; Dkt. No. 138-2 ¶ 5; Dkt. No. 142-2 ¶ 5; Dkt. No. 147-2 ¶ 5; Dkt. No. 148-2 ¶ 5. During these months, 24 detained individuals did not receive initial master calendar hearings within 17 days of filing of the NTA, see Dkt. No. 143-1 ¶ 7 & n.5; Dkt. No. 147-2 ¶ 6; Dkt. No. 148-2 ¶ 6, and the average time between arrest and filing of the NTA remained around two to three days, see Dkt. No. 137-2 ¶ 3; Dkt. No. 138-2 ¶ 3; Dkt. No. 142-2 ¶ 5; Dkt. No. 1472 ¶ 5; Dkt. No. 148-2 ¶ 5.

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This relatively steady trend was destabilized in March 2020 by the COVID-19 pandemic.

The unprecedented nature of this global pandemic impacted the Varick Street Immigration Court

in numerous ways. As a result of the pandemic, the Varick Street was forced to operate with less

than half of its staff; contend with an increase in the number of district court-ordered bond

hearings within short time frames; and temporarily close for a period of time on March 24, 2020.

See Dkt. No. 149-2 ¶ 7–8. Though wait times in March remained steady for detained individuals

who received initial master calendar hearings during that month, see Dkt. No. 149-2 ¶ 5; Dkt.

No. 149-1 ¶ 3, The Government reports that several initial master calendar hearings scheduled

for March had to be rescheduled outside the 17-day time frame due to court closures and delays

in processing NTAs, see Dkt. No. 149-2 ¶ 7–9 (listing 8 detained individuals who did not receive

initial master calendar hearings as scheduled for March). As noted below, median wait times

between filing of the NTA and initial master calendar hearing ballooned in April and May 2020

to 36 and 50 days respectively due to disruptions caused by COVID-19. See Dkt. No. 153-2 ¶¶

6–7; Dkt. No. 154-2 ¶¶ 6–7.

Month

Median Wait Time

25th Percentile Wait Time

75th Percentile Wait Time

March 2020

13

11

13

April 2020

36

28

42

May 2020

50

45

55

June 2020

8

8

9

July 2020

10

10

10

August 2020

10

7

11

September 2020

8

7

9

8

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October 2020

7

7

10

See Dkt. No. 149-2 ¶ 5; Dkt. No. 153-2 ¶ 5; Dkt. No. 154-2 ¶ 5; Dkt. No. 155-2 ¶ 5; Dkt. No. 156-2 ¶ 4; Dkt. No. 157-2 ¶ 4; Dkt. No. 158-2 ¶ 4; Dkt. No. 159-2 ¶ 8.
In their April and May reporting to the Court, the Government also identified several additional detained individuals who did not receive initial master calendar hearings within 17 days of filing of the NTA as a result of issues caused by the COVID-19 pandemic, see Dkt. No. 150 (identifying two such individuals); Dkt. No. 151 (identifying 11 such individuals); Dkt. No. 152 (identifying one such individual); Dkt. No. 153-2 ¶ 8 (identifying eight such individuals); Dkt. No. 154-2 ¶ 8 (identifying two such individuals).
Throughout the spring of 2020, the Government consistently represented to the Court that the Varick Street Immigration Court was taking measures to respond to challenges posed by the COVID-19 pandemic and believed it would be able to meet the 17-day time frame again in cases going forward. See Dkt. No. 149-2 ¶ 8 (making this representation in April); Dkt. No. 153-2 ¶ 7 (making this representation in May); Dkt. No. 154-2 ¶ 7 (making this representation in June). The fruits of these efforts were realized in June and July 2020, when wait times approximated the lowest levels of the prior year and zero and one detained individuals respectively received initial master calendar hearings outside the 17-day timeframe. See Dkt. No. 155-2 ¶ 4; Dkt. No. 156-2 ¶ 5. II. MOOTNESS
The Court first addresses the threshold question of whether the claims asserted by Vazquez Perez are moot. The Government argues that because it has generally succeeded in decreasing wait times before a detained individual receives an initial master calendar hearing, Vazquez Perez’s claims are moot. See Dkt. No. 135 at 2–4. The Court disagrees.
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The burden of showing mootness “logically falls on a defendant because, ‘by the time mootness is an issue, the case has been brought and litigated, often . . . for years. To abandon the case at an advanced stage may prove more wasteful than frugal.’” Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 603 (2d Cir. 2016) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 191–92 (2000). Where, as here, a party claims that its voluntary compliance with the law moots a case, it must “demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (quoting Granite State Outdoor Advert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2d Cir. 2002)). The burden of demonstrating mootness under such circumstances is both “stringent” and “formidable.” Id. at 604.
Here, the Government has failed to satisfy either prong of this test. First, it has not demonstrated that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Mhany Mgmt., 819 F.3d 581, 603–04 (2d Cir. 2016) (citation omitted). Though the Government represents that it has now instituted a policy requiring initial master calendar hearings within 17 days of filing of the NTA, Dkt. No. 67 ¶ 6, 45–46; Dkt. No. 85-1 ¶ 7, it is free to abandon that policy at any time. Indeed, “[c]ourts are . . . skeptical as to whether remediations effectuated through policy, or prospective promises generally, are unlikely to recur, because a policy may be rescinded and a prohibited practice may be reinstituted on short notice.” See Thomas v. West, No. 14-CV-4459 (LTS), 2018 WL 3768525, at *4 (S.D.N.Y. Aug. 8, 2018). And even under this policy, though the Government has decreased median wait times, between April 2019 and February 2020, 132 detained individuals still received initial master calendar hearings more than 17 days after filing of the NTA. See Dkt. No. 130-1 ¶ 7; Dkt. No. 143-1 ¶ 7
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& n.5; Dkt. No. 147-2 ¶ 6; Dkt. No. 148-2 ¶ 6. (When delays precipitated by the COVID-19 pandemic are factored in, this number grows to over 160 detained individuals.) Thus, even by the Government’s own standards, “[t]here is no mere risk that [the Government] will repeat its allegedly wrongful conduct; it has already done so.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993) (emphasis added).
Second, the Government has failed to demonstrate that it has “completely” eradicated alleged violations, nor could it do so on the record now before the Court. As explained in greater detail below, see infra Section IV.B, even if the Government had successfully and uniformly implemented its policy of providing initial master calendar hearings within 17 days of filing of the NTA—which it has not, due to factors both within and without its control—such a policy and practice would nonetheless be unconstitutional. And “a plaintiff’s claims will not be found moot where the defendant’s [corrective action] suffers from similar infirmities as it did at the outset.” Lamar Advert. of Penn, LLC v. Town of Orchard Park, New York, 356 F.3d 365, 378 (2d Cir. 2004).
Accordingly, the Court concludes that the Government has failed to satisfy the “stringent” and “formidable” burden of demonstrating mootness. III. CLASS CERTIFICATION
The Court next addresses Vazquez Perez’s motion for class certification. Vazquez Perez filed that motion on November 15, 2018. The Government had yet to respond to that motion by the time of oral argument on the motion for preliminary injunctive and declaratory relief, which was held on April 8, 2019. Consequently, at that argument, the Court directed counsel for the Government to confer with counsel for Vazquez Perez regarding briefing on the motion for class certification. See Dkt. No. 96 at 67, 83. The Court advised the parties that “in the absence of a
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stipulation” to conditional or preliminary certification of the class, it would “need briefing” on the motion. Dkt. No. 96 at 83. As of the date of the Court’s Opinion and Order on the motion for preliminary injunctive or declaratory relief, the Court had still not received any briefing from the Government on the class certification motion. It thus construed the decision not to file an opposition as a stipulation to the conditional certification of the putative class for purposes of the motion for preliminary injunctive or declaratory relief. See Dkt. No. 124 at 8.
As discussed above, following issuance of the Court’s September 30, 2019 Opinion and Order and at the parties’ request, the Court converted the parties’ prior submissions on the motion for preliminary injunctive or declaratory relief, together with their supplemental briefing, into cross-motions for summary judgment. In his supplemental memorandum of law submitted in support of his motion for summary judgment, Vazquez Perez pointed out that, as of the time of filing, the Government had still not responded to his motion for class certification. See Dkt. No. 133 at 1 n.1. And as of the date of this Opinion and Order—two years from the filing of Vazquez Perez’s class certification motion—that motion remains unopposed. Indeed, the Government does not address the question of class certification in any way in its supplemental memorandum in support of its motion for summary judgment and have not addressed it in any way since.
“[I]t is difficult” for this Court “to imagine [a] case[] in which it is appropriate to defer class certification until after decision on the merits,” Philip Morris Inc. v. Nat’l Asbestos Workers Med. Fund, 214 F.3d 132, 135 (2d Cir. 2000) (citation omitted), and, even if such a case exists, this case is not it. Accordingly, in light of the Government’s failure to respond to the class certification motion for nearly two years despite being on notice that any opposition would require further briefing, the Court now deems Vazquez Perez’s motion unopposed. In light of
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this history, the Court construes the Government’s failure to oppose class certification as a stipulation to certification. Nevertheless, the Court proceeds to consider the question on its merits. See In re AXA Equitable Life Ins. Co. COI Litig., No. 16-CV-740 (JMF), 2020 WL 4694172, at *6 (S.D.N.Y. Aug. 13, 2020) (“[T]he Court has an independent obligation to ensure that the standards for class certification are met . . . .”); Douglin v. GreatBanc Tr. Co., 115 F. Supp. 3d 404, 409 (S.D.N.Y. 2015) (“Even when unopposed, a motion for class certification must be evaluated on its merits.”).
For the reasons that follow, this motion is GRANTED. A. Standard Vazquez Perez seeks to certify the following class: all individuals who have been, or will be, arrested by ICE’s New York Field Office and detained under Section 1226 of Title 8 of the United States Code for removal proceedings before an immigration judge and who have not been provided an initial hearing before an immigration judge. See Dkt. No. 4 at 1. As an initial matter, the Court must determine what standard governs class certification in this case. The operative pleading in this matter is a class petition for a writ of habeas corpus and class complaint for declaratory and injunctive relief. See Dkt. No. 1. Vazquez Perez argues that the proposed class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure and qualifies as a representative habeas class pursuant to the Second Circuit’s decision in United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). In Preiser, the Second Circuit concluded that, under certain circumstances, “multi-party proceeding[s] similar to the class action authorized by the [Federal] Rules of Civil Procedure” may be allowed. See id. at 1125. Though “the precise provisions of Rule 23 are not applicable” to such proceedings, the Second Circuit engaged in a Rule 23 analysis before concluding that an “analogous procedure” was
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appropriate in Preiser. Id. at 1126. Since Preiser, several courts in this Circuit have likewise employed a Rule 23 analysis in determining whether certification of a habeas class is warranted. See, e.g., L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 609, 614–17 (S.D.N.Y. 2018) (applying Rule 23 where, as here, Plaintiffs sought injunctive, declaratory, and habeas relief); Abdi v. Duke, 323 F.R.D. 131, 136 (W.D.N.Y. 2017) (“Courts that have proceeded with class claims in habeas cases have applied the Rule 23 requirements in determining whether to certify the multiparty action.”) (collecting cases). Accordingly, the Court will measure the proposed class—whether it be construed as a Rule 23 or a habeas class3—against the Rule 23 standard for certification of class actions.
In order to qualify for class certification, a plaintiff must first demonstrate that the class it proposes satisfies the four prerequisites of Federal Rule of Civil Procedure 23(a). Those requirements are:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the
class. Fed. R. Civ. P. 23(a). These “four requirements—numerosity, commonality, typicality, and adequate representation —effectively limit the class claims to those fairly encompassed by the named plaintiff’s claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (citation and internal quotation marks omitted). “A class may be certified only if, ‘after a rigorous analysis,’ the . . . court is satisfied that the prerequisites of [Rule 23(a)] are met.” Roach v. T.L.
3 Because the parties opted to brief summary judgment rather than seek resolution of the petition, see Dkt. No. 127, it may be more accurate to characterize the class as a Rule 23 rather than a habeas class.
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Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015) (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)).
Assuming the requirements of Rule 23(a) are met, a plaintiff must then establish that certification is appropriate for one of the three reasons set forth in Rule 23(b). Here, Vazquez Perez seek certification under Rule 23(b)(2), which authorizes class certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
“The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements have been met.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015); see also Dukes, 564 U.S. at 350 (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). Accordingly, although a Rule 23 inquiry should not “extend into a protracted mini-trial of substantial portions of the underlying litigation,” the “district judge must receive enough evidence, by affidavits, documents, or testimony,” including expert evidence as appropriate, to “be satisfied” that the necessary elements of class certification have been established. In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
B. Rule 23(a) In determining whether each of Rule 23’s requirements have been met, the Court first assesses whether Vazquez Perez has met his burden to establish that the requirements of Rule 23(a) are met.
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1. Numerosity With respect to the first requirement, the Court is satisfied that the proposed class is “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[N]umerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); see also Basso v. New York Univ., 363 F. Supp. 3d 413, 421 (S.D.N.Y. 2019). Vazquez Perez has demonstrated that the New York Field Office arrests over 1,000 individuals annually who are subsequently placed in proceedings before the Varick Street Immigration Court. See Dkt. No. 5-1 ¶ 5. Furthermore, Brooklyn Defender Services, which represents only one-third of individuals receiving pro bono legal services through the New York Immigrant Family Unity Project at Varick Street, has 80–100 detained clients with cases there at any given time—a population of sufficient size to satisfy the numerosity requirement on its own. Dkt. No. 5-2 ¶ 4, 9. Because Vazquez Perez has proffered evidence demonstrating that the proposed class comprises well over 40 members, the Court concludes that the numerosity requirement is satisfied.
2. Commonality The Court is also satisfied that the commonality requirement is met because “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality “requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Dukes, 564 U.S. at 350 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982)). In other words, the claims must “depend on a common contention,” that is “of such a nature that it is capable of classwide resolution”—meaning that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The
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commonality requirement is met if “even a single question of law or fact [is] common to the members of the class.” Dukes, 564 U.S. at 369.
Courts have routinely found the Rule 23(a) commonality requirement satisfied where, as here, the injuries of a putative class arise from a “unitary course of conduct” or “single policy of defendants,” especially where defendants are government entities. See Brown v. Kelly, 609 F.3d 467, 484 (2d Cir. 2010); Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997); see also, e.g., Ligon v. City of New York, 288 F.R.D. 72, 82 (S.D.N.Y. 2013); Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 290 F.R.D. 409, 419 (S.D.N.Y. 2012).
Here, Vazquez Perez alleges that all putative class members’ injuries arise from a common set of ICE procedures, chief among them the procedures governing the scheduling of initial master calendar hearings. Several common questions of law or fact emerge from this common set of procedures and apply equally to all proposed class members, including: “whether the government’s policy and practice of failing to promptly provide class members with access to an IJ violates the Due Process Clause . . .and . . . whether the government’s policy and practice of unreasonably delaying the first appearance of class members before a judge violates the Administrative Procedure Act.” Dkt. No. 4 at 14. These common questions are apt to “generate common answers” likely “to drive resolution of the litigation.” Dukes, 564 U.S. at 350. Indeed, determining whether ICE’s policy and practice of delaying initial master calendar hearings is unconstitutional or in violation of the Administrative Procedure Act would resolve the issue “that is central to the validity of each one of the claims [of putative class members] in one stroke.” Id. (emphasis added). The Court thus concludes that the commonality requirement is met.
3. Typicality
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Vazquez Perez has also met his burden to establish that the typicality requirement is met. Typicality is satisfied where “each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). In practice, the “commonality and typicality requirements of Rule 23(a) tend to merge.” Dukes, 564 U.S. at 350 n.5. Thus, Vazquez Perez meets the typicality requirement “for many of the same reasons [he] meet[s] the commonality requirement.” Sykes, 285 F.R.D. at 291.
The typicality requirement is generally satisfied where the “same allegedly unlawful conduct was directed at or affected” the named plaintiff and the other members of the class, Toney-Dick v. Doar, No. 12-CV-9162 (KBF), 2013 WL 5295221, at *7 (S.D.N.Y. Sept. 16, 2013), especially where, as discussed above, the injuries alleged “derive from a unitary course of conduct by a single system,” Marisol A., 126 F.3d at 377. ICE’s alleged policies and practices amount to a unitary course of conduct directed at all putative class members and from which all putative class members’ alleged injuries derive. Accordingly, the Court finds the typicality requirement satisfied.
4. Adequacy With respect to the final requirement, the Court is satisfied that the “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To determine whether the adequacy requirement is met, this Court must inquire “whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). In this case, there is no evidence of conflict
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between Vazquez Perez’s interests and those of other members of the class. Indeed, Vazquez Perez is vigorously pursuing the claims of putative class members, which overlap in their entirety with his own claims for relief. See Dkt. No. 5-8. Furthermore, there is considerable evidence that Vazquez Perez’s counsel—the New York Civil Liberties Union, the Bronx Defenders, and the Immigration Justice Clinic at Cardozo School of Law—are qualified, experienced, and able to conduct this litigation. They have experience in federal civil rights litigation, including challenging the unlawful detention of immigrants, and deep knowledge of constitutional and immigration law. See Dkt. No. 5-9 ¶ 2–7. Here, they have gathered facts and researched legal theories related to this class action and have developed and maintained this litigation since its filing. Id. ¶ 8. The Court thus finds by a preponderance of the evidence that the adequacy requirement is satisfied.
C. Rule 23(b) Vazquez Perez must also establish that certification is appropriate for one of the reasons set forth in Rule 23(b). Here, he seek certification under Rule 23(b)(2), which authorizes class certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Courts in this District routinely grant class action status under Rule 23(b)(2) in cases “alleging systemic administrative failures of government entities.” Shakhnes ex rel. Shakhnes v. Eggleston, 740 F. Supp. 2d 602, 628 (S.D.N.Y. 2010) (collecting cases), aff’d in part, vacated in part on other grounds sub nom. Shakhnes v. Berlin, 689 F.3d 244 (2d Cir. 2012). Indeed, “class certification under Rule 23(b)(2) is particularly appropriate in civil rights litigation[s],” such as this one. Brooklyn Ctr., 290 F.R.D. at 420 (quoting Stinson v. City of New York, 282 F.R.D. 360, 379 (S.D.N.Y. 2012).
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Because Vazquez Perez has alleged that ICE policies and practices result in injuries that generally apply to the proposed class as a whole, and because Vazquez Perez seeks injunctive and declaratory relief that would benefit the proposed class as a whole, Rule 23(b)(2) is satisfied here. See Abdi, 323 F.R.D. at 144.
Vazquez Perez has satisfied the requirements of Rules 23(a) and (b). Furthermore, proposed class counsel satisfy the requirements of Rule 23(g) for the reasons articulated above. Accordingly, Vazquez Perez’s unopposed motion for class certification is hereby granted and the New York Civil Liberties Union, the Bronx Defenders, and the Immigration Justice Clinic at Cardozo School of Law are appointed class counsel. IV. CROSS-MOTIONS FOR SUMMARY JUDGMENT
Having certified the class identified above, the Court turns to the parties’ cross-motions for summary judgment.
A. Standard Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether summary judgment is warranted, the court must “construe the facts in the light most favorable to the non-moving party and resolve all ambiguities and draw all reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (internal quotation marks and alterations omitted). There is a genuine issue of material fact if a reasonable jury could decide in the non-moving party’s favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000). If the Court determines that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial” and summary judgment should be granted to the moving
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party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
It is generally “the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation omitted). However, when the burden of proof at trial would fall on the non-moving party, the moving party may meet its burden by “point[ing] to a lack of evidence . . . on an essential element” of the nonmoving party’s claim. Simsbury-Avon Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). To survive a summary judgment motion, the non-moving party must then “come forward with admissible evidence sufficient to raise a genuine issue of fact for trial.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013). In doing so, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . and may not rely on conclusory allegations or unsubstantiated speculation.” Id. (internal quotation marks and citation omitted).
Where, as here, the Court considers cross-motions for summary judgment, it “must evaluate each party’s motion on its own . . . taking care . . . to draw all reasonable inferences against the party whose motion is under consideration.” Coutard v. Municipal Credit Union, 848 F.3d 102, 114 (2d Cir. 2017).
B. Procedural Due Process Claim The Court first considers class members’ procedural due process claim. It is “well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.’” Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). “The fundamental requirement of due process is the opportunity to be heard ‘at a
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meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (emphasis added) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Here, the Government does not contest that the Due Process Clause demands that class members receive prompt initial master calendar hearings. See Dkt. No. 96 at 54:9–20. However, the parties disagree as to what constitutes a prompt hearing under these circumstances. Whether the procedures provided by the Government here comport with the Due Process Clause is assessed under the test set out in Mathews v. Eldridge, which requires the Court to balance “three distinct factors”:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335.
1. Private Interest With respect to the first Mathews factor, Vazquez Perez argues that class members are denied “prompt access”—defined as within 7 or 10 days of arrest if the detainee has not waived the 10-day waiting period—to the “existing statutory protections against unnecessary and unlawful detention,” and, as a result, have been unlawfully deprived of their physical liberty. Dkt. No. 51 at 16. The Supreme Court has emphasized that “[f]reedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Here, numerous considerations bear on the immense importance of the private interest— freedom from imprisonment—at stake. First, class members’ detention is civil in nature. The Supreme Court “has repeatedly reaffirmed that ‘civil commitment for any purpose constitutes a
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significant deprivation of liberty that requires due process protection.’” Linares Martinez v. Decker, No. 18-CV-6527 (JMF), 2018 WL 5023946, at *2 (S.D.N.Y. Oct. 17, 2018) (emphasis added) (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)). Second, class members are being detained by the Government in criminal jails operated by the states of New York and New Jersey pursuant to a contract with ICE to house immigration detainees. Dkt. No. 59-1 ¶ 8. Vazquez Perez presents evidence that conditions of confinement in these jails are harsh, see Dkt. No. 59-1 ¶ 8; Dkt. No. 59-1 ¶ 13; Dkt. No. 59-5 ¶¶ 9–10; Dkt. No. 59-6 ¶ 9; Dkt. No. 59-17 ¶ 28; Dkt. No. 59-8 ¶¶ 28–31, and the medical and mental health care provided is woefully inadequate, see, e.g., Dkt. No. 59-10 ¶¶ 6–8, 10–12, 15–26, 29; Dkt. No. 59-5 ¶¶ 9–13, 18–20; Dkt. No. 59-2 ¶¶17–38. Yet, civil detainees are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982). Third, extended deprivation of detainees’ physical liberty also places financial burdens on detainees and their families due to lost income, see, e.g., Dkt. No. 59-16 ¶¶ 9–11, and has a profound effect on families, especially the children of detainees, see, e.g., id. ¶¶ 9–14.
Contrary to the Government’s contention, the fact that the INA authorizes the detention of immigrants while their removal proceedings are pending, see 8 U.S.C. §1226, does not negate class members’ interests—of the utmost importance—in freedom from imprisonment. Class members may not have a “fundamental right to be released during removal proceedings,” Dkt. No. 71 at 26, but nor does the Government have an unfettered right to detain them. Indeed, even statutorily-authorized detention may amount to an unconstitutional deprivation of due process under certain circumstances. See, e.g., Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that petitioner’s continued detention without
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a bond hearing pursuant to § 1226(c) was unreasonable and unconstitutional under the circumstances); see also Cancino Castellar v. McAleenan, 388 F. Supp. 3d 1218, 1239 (S.D. Cal. 2019) (“Congress’s recognized constitutional authority to authorize detention of noncitizens during removal proceedings does not shield such authority from the limitations that the Due Process Clause commands to protect that interest.”).
In light of the paramount importance of the private interest at stake, and the numerous considerations that bear on the importance of that right in this case, the Court concludes that the first Mathews factor weights in favor of Vazquez Perez.
2. Risk of Erroneous Deprivation and Value of Additional Procedures With respect to the second Mathews factor, the Court must consider (1) “the risk of an erroneous deprivation” of class members’ significant interest in freedom from imprisonment “through the procedures used,” and (2) “the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335.
a. Risk of Erroneous Deprivation Vazquez Perez points to several ways in which the delay between arrest and initial master calendar hearing—and all of the opportunities and procedural protections such a hearing affords, see Dkt. No. 124 at 3–4—increases the risk that class members will be erroneously deprived of their significant interest in freedom from imprisonment. For example, the initial master calendar hearing presents the first opportunity for a meaningful bond determination. Indeed, though ICE makes an initial custody determination, these determinations are perfunctory; the Government does not contest that the New York Field Office has in effect adopted a no-bond policy, having issued bonds in 0% of cases in which individuals are detained pursuant to 8 § U.S.C. 1226 since 2016. Dkt. No. 53-7 ¶ 9; Dkt. No. 53-1 ¶ 14.
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While the Government is correct that custody determinations made by Immigration Judges are discretionary, “the Supreme Court has recognized only two valid purposes for civil detention [in the immigration context]: to mitigate the risks of danger to the community and to prevent flight.” Lopez v. Sessions, No. 18-CV-4189 (RWS), 2018 WL 2932726, at *10 (S.D.N.Y. June 12, 2018). Accordingly, where an individual is neither a danger to the community nor a flight risk, her detention serves no purpose, and she is likely to be released on bond following a meaningful custody determination by an Immigration Judge. Cf. Krimstock v. Kelly (Krimstock I), 306 F.3d 40, 44 (2d Cir. 2002) (explaining that a seizure is not “justified” if “less drastic measures than deprivation pendente lite are available and appropriate” to satisfy the government’s legitimate interest.). The greater the delay between arrest and a meaningful custody determination—which is not available until the initial master calendar hearing—the greater the risk of “erroneous deprivation” of these individuals’ significant interests in their physical liberty.
Similarly, for the number of detainees who will ultimately have their cases terminated based on a finding by an IJ that they are not removable, the initial master calendar hearing presents the first opportunity to move to terminate removal proceedings, Dkt. No. 53-1 ¶ 26; Dkt. No. 53-3 ¶ 26. For these individuals, too, the delay between arrest and initial master calendar hearing thus increases the risk of erroneous deprivations of physical liberty.
b. Value of the Proposed Safeguard Having identified the risk of erroneous deprivation, the Court turns to “the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. On the record before the Court, the value of the proposed safeguard Vazquez Perez seeks—an initial master calendar hearing within 7 or 10 days of arrest if the detainee has not waived the 10-day
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waiting period— is clear. Indeed, it is undisputed that 30–40% of detainees will be released on bond after a meaningful bond determination before an Immigration Judge. See Dkt. No. 59-1 ¶ 19; Dkt. No. 59-7 ¶¶ 10–13. And, though the parties present different calculations, a not insignificant number of detainees will be found not removable after presentment to an Immigration Judge. Compare Dkt. No. 59-7 ¶¶ 2, 14–16 (finding that 9% of detainees will have their case terminated by an Immigration Judge because they are not removable) with Dkt. No. Dkt. No. 67 ¶ 13 n.1 (finding that 31 removal cases were terminated by an Immigration Judge in 2018). For these individuals—who Vazquez Perez has established are being detained in criminal jails under harsh conditions, see supra Section IV.B.1—prompter access to an initial master calendar hearing would thus afford them an earlier opportunity to win their release.
The Government argues that the second Mathews factor weights in its favor because the procedures already in place are sufficient to reduce the risk of erroneous detention. Specifically, it argues that there are already a number of procedural safeguards that “ensure fundamental fairness to aliens detained for immigration purposes,” Dkt. No. 71 at 27, including the requirement that ICE make an initial custody determination within 48 hours of arrest and the availability, at a detainee’s request, of an expedited custody status hearing before an Immigration Judge, id. at 28. However, on the record now before the Court, this argument rings hollow because the Government does not contest the ample evidence proffered by Vazquez Perez establishing that these safeguards are, in fact, illusory. See Dkt. No. 59-7 ¶ 9; Dkt. No. 59-1 ¶ 14 (ICE has denied bond in every case in which individuals are detained pursuant to 8 § U.S.C. 1226 since 2016); see also Dkt. No. 59-1 ¶¶ 21, 24; Dkt. No. 59-3 ¶ 19 (requests for an immediate hearing and for IJ review of ICE’s custody determination are ignored).
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The Government also argues that Petitioners cannot demonstrate that the proposed safeguard is of any value where the Government is already providing initial master calendar hearings “roughly two weeks” after filing of the NTA and has committed to providing such hearings within 17 days after filing of the NTA. See Dkt. No. 135 at 6–8. In the year prior to the COVID-19 pandemic, median wait times between filing of the NTA and initial master calendar hearing ranged between 8 and 18 days, and the time between arrest and filing of the NTA hovered around 2–3 days. See supra Section I.B. The Government suggest that the difference between these numbers and Vazquez Perez’s proposed safeguard—which would provide detained individuals with initial master calendar hearings within 7 or 10 days of arrest if the detainee has not waived the 10-day waiting period—is insignificant for purposes of the due process analysis. The Court disagrees.
Though the difference between the Government’s policy and practice and Vazquez Perez’s proposed safeguard may be relatively small and thus may lend the impression that the safeguard Vazquez Perez seeks is accordingly of little value, any such impression is false— especially where, as here, physical liberty is at stake. In cases in which the deprivation of real property is at issue—an interest far less weighty than the deprivation of physical liberty—courts have consistently required “prompt post-deprivation hearings,” defined by the Second Circuit, in the case of seized automobiles, as 10 days after receipt of a hearing request. See, e.g., Krimstock v. Kelly (Krimstock I), 306 F.3d 40, 67 (2d Cir. 2002) (Sotomayor, J.) (finding, in a case involving the seizure of automobiles from individuals arrested for driving under the influence, that due process required “that plaintiffs be afforded a prompt post-seizure, pre-judgment hearing before a neutral judicial or administrative officer”); see Jones v. Kelly (Krimstock II), 378 F.3d
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198, 204 (2d Cir. 2004) (affirming the district court’s order, on remand, requiring that such hearings be provided within 10 days of receipt of a written demand).
And “elsewhere in the civil commitment context”—where the deprivation of physical liberty is at stake—“there is a long history of courts which have found that due process requires” an even more “expeditious hearing, often defined as a period of no longer than seven days.” Cancino Castellar v. McAleenan, 388 F. Supp. 3d 1218, 1240–41 (S.D. Cal. 2019) (finding that plaintiff-petitioners stated a procedural due process claim where wait times before initial master calendar hearings ranged from one to three months) (citation omitted); see Saravia v. Sessions, 280 F. Supp. 3d 1168, 1177 (N.D. Cal. 2017) (requiring that noncitizen minors arrested on allegations of gang activity must be provided with a hearing before an Immigration Judge within seven days of arrest), aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). “Expeditious” hearings held within seven days are often required in this context because when an initial hearing does not “occur close enough in time to the [individual’s] arrest,” an individual whose detention is not “reasonably related to a legitimate government purpose” may remain in Government custody unnecessarily and unjustifiably. Id. at 1199.
Yet from September 2019 to March 2020, median wait times between filing of the NTA and initial master calendar hearing were consistently between 13–14 days, see supra Section I.B—three to four days longer than the 10-day period of time that typically satisfies due process where the deprivation of real property is at issue and nearly twice as long as the seven-day period of time that typically satisfies due process where the deprivation of physical liberty is at stake. (These numbers are even longer when the two to three days between arrest and filing of the NTA is accounted for. See supra Section I.B.) In light of the foregoing, the value of the additional safeguard Vazquez Perez seeks—which would afford unjustifiably detained individuals a much
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earlier opportunity to win their release —is indisputably significant for purposes of the due process analysis.
Because Vazquez Perez has established that there is a risk of erroneous deprivation of class members’ significant interest in freedom from imprisonment “through the procedures used” by the Government, and the value of his proposed safeguard is significant, the Court concludes that the second Mathews factor also weighs in his favor.
3. Government Interest The final Mathews factor requires the Court to assess “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. The Government argues that its “interest in the existing process is extensive . . . , as is the potential for significant fiscal and administrative burdens from any forced additional process.” Dkt. No. 71 at 29. It specifically asserts that a “judicially imposed timeframe” for initial master calendar hearings would “create a deleterious ripple effect throughout the removal process,” because “meeting a judicially-imposed deadline for all initial master calendar hearings may ultimately impede immigration judges’ ability to provide prompt hearings (including subsequent master calendar and merits hearings) for other detained aliens.” Dkt. No. 71 at 29. While the Court is sensitive to the Government’s concerns regarding the burden Vazquez Perez’s proposed safeguard would place on the Immigration Courts, the Government offers scant evidence in the record to support these concerns. See Dkt. No. 67 ¶¶ 35, 46. And, in fact, the evidence before the Court on summary judgment contradicts the Government’s assertions. As the data discussed above demonstrates, the Government successfully reduced wait times for a substantial proportion of detained individuals to 10 days or less following filing of the NTA in
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six separate months, see Dkt. No. 130-1 ¶ 8 (June, July, August, and September 2019); Dkt. No. 155-2 ¶ 5 (June 2020); Dkt. No. 156-2 ¶ 4 (July 2020); Dkt. No. 159-2 ¶ 8 (October 2020), and it offers no evidence that these reductions resulted in the feared ripple effects in any of these months.
Furthermore, because Vazquez Perez does not seek to add to the “existing process,” but rather requests only prompt provision of procedural protections already guaranteed by the statutory scheme, any burden on the existing process should be relatively small. See Coleman v. Frantz, 754 F.2d 719, 724 (7th Cir. 1985) (“Where first appearances are provided, the requirement that they be timely would place a relatively small burden on law enforcement and judicial officers.”); cf. Aguilar v. U.S. Immigration & Customs Enf’t Chicago Field Office, 346 F. Supp. 3d 1174, 1192 (N.D. Ill. 2018) (finding that “additional procedures” not already provided for by the statutory scheme “would certainly burden ICE”). Accordingly, in the absence of record evidence supporting the burdens the Government claims, the Court finds that the final Mathews factor also weighs in Vazquez Perez’s favor.
4. Balancing the Mathews Factors Balancing the Mathews factors, all of which weigh in favor of Vazquez Perez and against the Government, the Court concludes, on the record before it on summary judgment, that the demands of the Due Process Clause are not satisfied by the Government’s current procedures. In so concluding, the Court is mindful of the fact that since this motion was filed, this country has been forced to confront a global pandemic of unprecedented proportions. But while COVID-19 undoubtedly must be factored into the Court’s Mathews balancing, doing so does not alter the Court’s conclusion. With respect to the first Mathews factor, the COVID-19 pandemic only strengths class members’ personal interests in freedom from imprisonment because, as
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numerous courts across the country have recognized, “being in immigration detention places [detainees] at significantly higher risk of contracting COVID-19.” See United States v. Gross, No. 15-cr-769 (AJN), 2020 WL 1673244, at *1 (S.D.N.Y. Apr. 6, 2020) (collecting cases). And where there is the possibility, under current circumstances, that a deprivation of liberty could result in a deprivation of life, the interest in liberty is only magnified.
With respect to the second Mathews factor, while the risk of erroneous deprivation may remain the same, the value of Vazquez Perez’s proposed safeguard is much greater—especially in light of the fact that class members are being detained at criminal jails under harsh conditions and with inadequate access to medical care. As this Court and others have noted, “[i]ndividuals in carceral settings are at a ‘significantly higher’ risk of spreading infectious diseases,” Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020), and thus each day, perhaps each hour, that elapses “threatens incarcerated [individuals] with greater peril.” United States v. Gross, No. 15-cr-769 (AJN), 2020 WL 1673244, at *3 (S.D.N.Y. Apr. 6, 2020). Thus, against the backdrop of the COVID-19 pandemic, the value of the prompt initial master calendar hearing Vazquez Perez seeks—which presents the first meaningful opportunity for unjustifiably detained individuals to challenge their detention—is cast into even sharper relief.
Finally, with respect to the third Mathews factor, COVID-19 may increase the potential for significant fiscal and administrative burdens to result from Vazquez Perez’ proposed safeguard, as the pandemic itself has placed significant burdens on the Immigration Courts. However, to the extent the Government has been significantly burdened by the COVID-19 pandemic, that burden appears to have diminished with time. Indeed, despite significant delays in April and May, in June and July median wait times between filing of the NTA and initial
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master calendar hearing were 8 and 10 days respectively. See Dkt. No. 155-2 ¶ 4; Dkt. No. 1562 ¶ 5. And the Government has represented to the Court that the Varick Street Immigration Court believes it will be able to meet its 17-day time frame in cases going forward. See Dkt. No. 154-2 ¶ 7. Thus, because the Government has successfully reduced median wait times between filing of the NTA and initial master calendar hearing to pre-COVID levels and does not expect COVID-19 to affect its ability to meet its self-imposed 17-day time frame going forward, accounting for COVID-19 does not materially alter the Court’s conclusion that the third Mathews factor weighs in favor of Vazquez Perez.
Because the first and second Mathews factors weigh more heavily in favor of Vazquez Perez in light of the COVID-19 pandemic, and the third factor may have once but no longer weighs more heavily in favor of the Government, the Court concludes that, even taking account of the COVID-19 global health crisis, its Mathews balancing dictates that the demands of the Due Process Clause are not satisfied by the Government’s current procedures.
In determining what process is due class members, the Court is guided by the case law discussed above requiring prompt post-deprivation hearings where the deprivation of property or liberty is at stake. The Court agrees with those courts that have found that, in the context of civil detention, the Due Process Clause requires an “expeditious hearing, often defined as a period of no longer than seven days.” Cancino Castellar, 388 F. Supp. 3d at 1241; see Saravia, 280 F. Supp. 3d at 1177. The Court thus takes seven days as its starting point but does not treat this period as a strict constitutional requirement. Due process is, after all “flexible,” calling “for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The “timing and nature of the required hearing will depend on appropriate
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accommodation of the competing interests involved.” Krimstock I, 306 F.3d at 51 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982)).
Here, the Court concludes that, on the record now before it and as a matter of law, due process requires a prompt initial master calendar hearing to be held within 10 days of arrest. This 10-day period takes account of the fact that the Immigration Court does not obtain jurisdiction over removal proceedings until the NTA is filed, and the NTA is not typically filed until two to three days after arrest—a period of time the Court finds reasonable. Accordingly, requiring initial master calendar hearings within 10 days of arrest ensures that, in the average case, a detainee will receive an initial master calendar hearing within approximately seven days of the filing of the NTA. Cf. Krimstock II, 78 F.3d at 204 (affirming procedures requiring hearing with 10 days of receipt of hearing request by NYPD). A 10-day period also allows for the lapse of the statutory 10-day waiting period in every instance, see 8 U.S.C. § 1229(b)(1), thereby providing a more administrable requirement than Vazquez Perez’s bifurcated proposal. For these reasons, the Court concludes that a 10-day requirement ensures that detainees are provided an opportunity “to be heard ‘at a meaningful time and in a meaningful manner,’” Mathews, 424 U.S. at 335 (quoting Armstrong, 380 U.S. at 552), while accommodating the “competing interests involved,” Krimstock I, 306 F.3d at 51 (quoting Logan, 455 U.S. at 434).
C. Substantive Due Process Claim The Court turns next to Vazquez Perez’s substantive due process claim. The Due Process Clause of the Fifth Amendment provides that “No person shall . . . be deprived of life, liberty, or property, without due process of law. . . .” U.S. Const. amend. V; Zadvydas, 533 U.S. at 693. These protections apply “to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent,” and they apply to immigration
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detention as much as criminal detention. Zadvydas, 533 U.S. at 693; see also Doherty v. Thornburgh, 943 F.2d 204, 208 (2d Cir. 1991) (“The term used to define those entitled to protection under the due process clause, i.e., ‘person,’ does not differentiate between citizens and non-citizens, but is broad and inclusive.”).
“‘[T]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . whether the fault lies in a denial of fundamental procedural fairness . . . or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998) (citations omitted). The Supreme Court has explained that “‘[s]ubstantive due process’ analysis must begin with a careful description of the asserted right,” counseling that “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Reno v. Flores, 507 U.S. 292, 302 (1993) (citing Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)).
Vazquez Perez frames the asserted right in familiar terms. He argues that extended preproceeding detention violates substantive due process on the basis that “[d]etention for several months prior to [the initial appearance for an individualized custody determination] is not tied to any legitimate government interest.”4 Dkt. 51 at 25. Contrary to the Government’s argument, see Dkt. No. 71 at 33–34, there is little question that prolonged detention at some point violates the right to due process. In Zadvydas, for instance, the Supreme Court concluded that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem” under the Fifth Amendment. 533 U.S. at 690; see also Young v. Aviles, 99 F. Supp. 3d 443, 455
4 The Government contends, meanwhile, that Vazquez Perez asserts a substantive due process right “to prompt presentment” in the civil immigration context, akin to that which exists in criminal proceedings. Dkt. No. 71 at 33; see also Dkt. No. 135 at 10–11. Because Vazquez Perez disputes this characterization, see Dkt. No. 75 at 10–11, the Court focuses on the substantive due process claim that Vazquez Perez does assert.
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(S.D.N.Y. 2015) (“[T]his Court agrees with those that have found that, at some point, detention without a hearing offends the Due Process Clause.”). Indeed, even Carlson v. Landon, on which the Government relies in arguing that substantive due process is not implicated in this case, upheld temporary detention of an alien during deportation proceedings only after noting that the “problem of . . . unusual delay” was not present. Carlson, 342 U.S. 524, 545–46 (1952). The question, then, is not whether Vazquez Perez has invoked a sufficiently established right in making his substantive due process claim. He has. Rather, the question before the Court is whether the detention at issue here is sufficiently prolonged as to violate the right to due process.
There is no bright-line rule to determine at what point detention has become sufficiently prolonged as to violate substantive due process principles. Reasonableness, by its very nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case. Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011), overruled on other grounds by Jennings v. Rodriguez, 138 S.Ct. 830 (2018). Instead, the touchstone is the reasonableness of the length of detention. In the context of 8 U.S.C. § 1226(c), for instance, this Court observed that “whether mandatory detention under § 1226(c) has become ‘unreasonable,’[] and thus a due process violation, must be decided using an as-applied, fact-based analysis.” Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10 (S.D.N.Y. May 23, 2018) (citing Demore, 538 U.S. at 532 (Kennedy, J., concurring)). Vazquez Perez cites a number of criminal cases that found that prolonged detention prior to an initial proceeding ran afoul of the Due Process Clause—which found violations of substantive due process after delays of eighteen and thirtyeight days, respectively, without an initial appearance before a judge or a magistrate. See Dkt. No. 51 at 25–26 (citing Coleman v. Frantz, 754 F.2d 719, 723 (7th Cir. 1985); Hayes v. Faulkner Cty., 388 F.3d 669, 675 (8th Cir. 2004)). And he cites Armstrong v. Squadrito, 152 F.3d 564
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(7th Cir. 1998), in which the Seventh Circuit held that a pre-proceeding detention lasting fiftyseven days violated substantive due process. Squadrito, 152 F.3d at 569. As the Government indicates in its briefing, however, the criminal context raises unique circumstances that bear on the reasonableness of the length of detention. Dkt. No. 71 at 31–32. And Squadrito is difficult to square with the present context because the court’s analysis was at least in part guided by the fact that the state law permitted “punish[ment]” by imprisonment for violation of the civil law, which state courts had previously identified as requiring the kinds of due process protections ordinarily associated with criminal proceedings. See Squadrito, 152 F.3d at 574–76; see also Dkt. No. 71 at 32.
Other cases provide some guidance that bear more directly on the immigration context. In the post-removal-period detention context, for instance, the Supreme Court identified six months of detention as presumptively reasonable. Zadvydas, 533 U.S. at 701. Other courts, also in that context, have similarly adopted five-to-six months as a useful touchstone, if not a brightline rule. See Sajous, 2018 WL 2357266, at *10 (collecting cases); Lopez v. Sessions, No. 18-CV-4189 (RWS), 2018 WL 2932726, at *14 (S.D.N.Y. June 12, 2018) (“[C]ourts in this Circuit have generally been skeptical of prolonged detention of removable immigrants, without process, lasting over six months.”). As noted above, however, the delays at issue in this litigation do not approximate six months. Cognizant of the proposition that “[s]ubstantive due process is an outer limit on the legitimacy of governmental action,” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), and unconvinced that any of the relevant precedent in the immigration context supports Vazquez Perez’s reasoning that substantive due process is
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implicated here, the Court cannot conclude, on this record, that the delays violate substantive due process.5
D. APA Claim Finally, the Court turns to Vazquez Perez’s APA claim. Vazquez Perez contends that the wait times violate the APA, which requires that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). They also point to 5 U.S.C. § 706(1), which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” The Government contends that after this Court’s September 30 Opinion & Order, which found that the habeas statute precluded classwide injunctive relief, such relief is not available pursuant to the APA, and that as a threshold matter Vazquez Perez’s claim thus fails. See Dkt. No. 135 at 13. In arguing as much, the Government relies on the text of the APA’s waiver of sovereign immunity, which provides that sovereign immunity is not waived under the APA “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought” by the plaintiff. 5 U.S.C. § 702. As the Supreme Court has observed, “[t]hat provision prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012). Application of that principle looks to the nature of the other statute and the relief a plaintiff seeks; “[w]hen a statute is not addressed to the type of grievance which the plaintiff seeks to assert, then the statute cannot prevent an APA suit.” Id. at 216 (citation and internal quotation marks omitted). The inquiry is by necessity context-specific, not lending itself to
5 The Court does not mean to suggest that any detention shorter than six months is constitutionally acceptable. In light of the as-applied, fact-based analysis that substantive due process calls for, see Sajous, 2018 WL 2357266, at *10, there may be circumstances in which shorter periods of detention—even significantly shorter periods of detention—may violate substantive due process.
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generalization or abstraction. To make such a determination, the Court must analyze closely whether the claims made under the APA in fact parallel the precise limitations contained in the other statute. See id.
The Court agrees with the Government that the similarities in Vazquez Perez’s pursuit of classwide injunctive relief under the habeas statute and his APA claim for injunctive relief are so similar as to bar injunctive relief under the APA. Both claims seek the same redress: an order from the Court compelling the agency to hold initial master calendar hearings within a more reasonable time period. While Vazquez Perez’s articulation of his APA claim does not use identical language, and instead rests on the language of 5 U.S.C. § 706(1), the differences are too tenuous to find any meaningful distinction. As a result, to allow the class to pursue injunctive relief under the APA after finding that 8 U.S.C. § 1252(f) bars classwide injunctive relief would engender the kind of circumvention that the operative exception in 5 U.S.C. § 702 seeks to avoid. Vazquez Perez does not address this point in his briefs; in his only brief filed after the Court’s September 30 Order, he notes that he intended to “rest[] upon the [APA] . . . arguments set forth in prior briefs.” Dkt. No. 133 at 5. But neither his December 5, 2018 brief, Dkt. No. 51, nor his February 7, 2019 reply brief, Dkt. No. 75, address the issue of availability of relief under the APA where § 1252(f) bars classwide injunctive relief. Accordingly, relief pursuant to the APA is denied. V. CONCLUSION
Vazquez Perez has satisfied the requirements of Rules 23(a) and (b), and thus certification of a class is appropriate here. Accordingly, the Court GRANTS Vazquez Perez’s unopposed class certification motion and certifies the Rule 23(b)(2) class comprised of all individuals who have been, or will be, arrested by ICE’s New York Field Office and detained
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under Section 1226 of Title 8 of the United States Code for removal proceedings before an

Immigration Judge and who have not been provided an initial hearing before an Immigration

Judge.

Vazquez Perez’s motion for summary judgment is GRANTED IN PART and DENIED

IN PART. The Court DECLARES that the Due Process Clause of the Fifth Amendment requires

that initial master calendar hearings for any class member be held within 10 days of an

individual’s arrest by ICE.

The Government’s cross-motion for summary judgment is GRANTED as to the

substantive due process and Administrative Procedure Act claims.

This resolves Dkt. No. 132. The Clerk of Court is respectfully directed to enter judgment

and close this case.

SO ORDERED.

Dated: November 30, 2020 New York, New York

____________________________________ ALISON J. NATHAN
United States District Judge

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