U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:20-cv-01110-CCB

Dubon Miranda et al v. Barr et al Assigned to: Judge Catherine C. Blake Case in other court: Fourth Circuit Court of Appeals,
20-01828 Cause: 28:1331 Violation of Constitutional Rights

Date Filed: 04/30/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Plaintiff Marvin Dubon Miranda

represented by Nicholas Taichi Steiner American Civil Liberties Union of Maryland 3600 Clipper Mill Road Suite 350 Baltimore, MD 21211 410-889-8555 Email: steiner@aclu-md.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adina B Appelbaum Capital Area Immigrants' Rights (CAIR) Coalition 1612 K St. NW Ste. 204 Washington, DC 20006 2028991412 Fax: 2023313341 Email: adina@caircoalition.org PRO HAC VICE ATTORNEY TO BE NOTICED

Austin Lane Webbert Sanford Heisler Sharp, LLP 111 S. Calvert Street Suite 1950 Baltimore, MD 21202 410-834-7418 Email: awebbert@sanfordheisler.com ATTORNEY TO BE NOTICED

Clare Jewell Horan Sanford Heisler Sharp, LLP 111 S. Calvert Street Suite 1950 Baltimore, MD 21202 410-834-7421 Fax: 410-834-7425 Email: choran@sanfordheisler.com ATTORNEY TO BE NOTICED
Claudia R. Cubas Capital Area Immigrants Rights (CAIR) Coalition 1612 K Street NW Suite 204 Washington, DC 20006 202-215-2213 Fax: 202-331-3341 Email: claudia.cubas@caircoalition.org ATTORNEY TO BE NOTICED
Deborah Kristine Marcuse Sanford Heisler Sharp, LLP 111 S. Calvert Street, Suite 1950 Baltimore, MD 21202 410-834-7415 Email: dmarcuse@sanfordheisler.com ATTORNEY TO BE NOTICED
Jenny Kim Capital Area Immigrants' Rights Coalition 1612 K St. NW Ste. 204 Washington, DC 20006 2028992590 Fax: 2023313341 Email: jenny@caircoalition.org PRO HAC VICE ATTORNEY TO BE NOTICED
Lucy Zhou Sanford Heisler Sharp, LLP 111 S. Calvert Street Suite 1950

Baltimore, MD 21230 410-834-7420 Email: lzhou@sanfordheisler.com ATTORNEY TO BE NOTICED
Melody Vidmar Capital Area Immigrants' Rights Coalition 1612 K St. NW Ste. 204 Washington, DC 20006 2029168185 Fax: 2023313341 Email: melody@caircoalition.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan ACLU Immigrants' Rights Project 125 Broad St 18th Floor New York, NY 10004 2125492660 Fax: 2155492654 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Saba Bireda Sanford Heisler Sharp LLP 700 Pennsylvania Ave. SE Ste. 300 Washington, DC 20003 2024995209 Fax: 2024995199 Email: sbireda@sanfordheisler.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sonia Kumar ACLU of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 410-889-8555 Fax: 410-366-7838 Email: kumar@aclu-md.org ATTORNEY TO BE NOTICED

Plaintiff Ajibade Thompson Adegoke

Whittney Layne Barth Sanford Heisler Sharp, LLP 111 S. Calvert Street Suite 1950 Baltimore, MD 21202 410-834-7424 Email: wbarth@sanfordheisler.com ATTORNEY TO BE NOTICED
represented by Nicholas Taichi Steiner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Austin Lane Webbert (See above for address) ATTORNEY TO BE NOTICED
Clare Jewell Horan (See above for address) ATTORNEY TO BE NOTICED
Claudia R. Cubas (See above for address) ATTORNEY TO BE NOTICED
Deborah Kristine Marcuse (See above for address) ATTORNEY TO BE NOTICED
Jenny Kim (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lucy Zhou (See above for address) ATTORNEY TO BE NOTICED
Melody Vidmar

Plaintiff Jose de la Cruz Espinoza

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Saba Bireda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sonia Kumar (See above for address) ATTORNEY TO BE NOTICED
Whittney Layne Barth (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Taichi Steiner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Austin Lane Webbert (See above for address) ATTORNEY TO BE NOTICED
Clare Jewell Horan (See above for address) ATTORNEY TO BE NOTICED
Claudia R. Cubas (See above for address) ATTORNEY TO BE NOTICED
Deborah Kristine Marcuse

V.
Defendant
William P. Barr Attorney General

(See above for address) ATTORNEY TO BE NOTICED
Jenny Kim (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lucy Zhou (See above for address) ATTORNEY TO BE NOTICED
Melody Vidmar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Saba Bireda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sonia Kumar (See above for address) ATTORNEY TO BE NOTICED
Whittney Layne Barth (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson United States Attorney's Office, District of Maryland 36 South Charles Street, Fourth Floor Baltimore, MD 21201 410-209-4800

Defendant Chad F. Wolf Acting Secretary
Defendant Matthew T. Albence Deputy Director and Senior Official Performing the Duties of the Director
Defendant James McHenry Director
Defendant

Email: evelyn.cusson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman United States Department Of Justice 450 Fifth St. NW Washington, DC 20530 2025324143 Email: susan.imerman@usdoj.gov ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED

Janean Ohin Acting Director
Defendant William Delauter Corrections Bureau Chief
Defendant Jack Kavanagh Director
Defendant Donna Bounds Warden
Amicus Equal Justice Under Law

represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED
represented by Evelyn Lombardo Cusson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Imerman (See above for address) ATTORNEY TO BE NOTICED
represented by Phil Telfeyan Equal Justice Under Law, Inc. 601 Pennsylvania Avenue, N.W. South Building-Suite 900

Washington, DC 20004 202-505-2058 Email: ptelfeyan@equaljusticeunderlaw.org ATTORNEY TO BE NOTICED

Date Filed 04/30/2020
04/30/2020 04/30/2020 04/30/2020 04/30/2020

# Docket Text
1 COMPLAINT and Petition for Writ of Habeas Corpus against All Defendants ( Filing fee $ 400 receipt number 0416-8633631.), filed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. (Attachments: # 1 Exhibit Declaration of Melody Vidmar, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Civil Cover Sheet, # 29 Summons William P. Barr, # 30 Summons Chad F. Wolf, # 31 Summons Matthew T. Albence, # 32 Summons James McHenry, # 33 Summons Janean A. Ohin, # 34 Summons William Delauter, # 35 Summons Jack Kavanagh, # 36 Summons Donna Bounds, # 37 Summons USAO District of Maryland)(Steiner, Nicholas) (Entered: 04/30/2020)
2 MOTION to Appear Pro Hac Vice for Michael K.T. Tan (Filing fee $100, receipt number 0416-8633843.) by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza(Steiner, Nicholas) (Entered: 04/30/2020)
3 MOTION to Appear Pro Hac Vice for Jenny Kim (Filing fee $100, receipt number 0416-8633879.) by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza(Steiner, Nicholas) (Entered: 04/30/2020)
4 MOTION to Appear Pro Hac Vice for Melody Vidmar (Filing fee $100, receipt number 0416-8633890.) by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza(Steiner, Nicholas) (Entered: 04/30/2020)
5 MOTION to Appear Pro Hac Vice for Adina Appelbaum (Filing fee $100, receipt number 0416-8633911.) by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza(Steiner, Nicholas) (Entered: 04/30/2020)

04/30/2020

6 MOTION to Appear Pro Hac Vice for Saba Bireda (Filing fee $100, receipt number 0416-8633920.) by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza(Steiner, Nicholas) (Entered: 04/30/2020)

04/30/2020

Case Assigned to Judge Catherine C. Blake. (cags, Deputy Clerk) (Entered: 04/30/2020)

05/01/2020

7 Summons Issued 60 days as to Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(kw2s, Deputy Clerk) (Entered: 05/01/2020)

05/01/2020

8 PAPERLESS ORDER granting 2 Motion to Appear Pro Hac Vice on behalf of Michael K.T. Tan. Directing attorney Michael K.T. Tan to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 5/1/2020. (srds, Deputy Clerk) (Entered: 05/01/2020)

05/01/2020

9 PAPERLESS ORDER granting 3 Motion to Appear Pro Hac Vice on behalf of Jenny Kim. Directing attorney Jenny Kim to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 5/1/2020. (srds, Deputy Clerk) (Entered: 05/01/2020)

05/01/2020

10 PAPERLESS ORDER granting 4 Motion to Appear Pro Hac Vice on behalf of Melody Vidmar. Directing attorney Melody Vidmar to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 5/1/2020. (srds, Deputy Clerk) (Entered: 05/01/2020)

05/01/2020

11 PAPERLESS ORDER granting 5 Motion to Appear Pro Hac Vice on behalf of Adina B Appelbaum. Directing attorney Adina B Appelbaum to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 5/1/2020. (srds, Deputy Clerk) (Entered: 05/01/2020)

05/01/2020

12 PAPERLESS ORDER granting 6 Motion to Appear Pro Hac Vice on behalf of Saba Bireda. Directing attorney Saba Bireda to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 5/1/2020. (srds, Deputy Clerk) (Entered: 05/01/2020)

05/01/2020 13 NOTICE of Appearance by Sonia Kumar on behalf of All Plaintiffs (Kumar, Sonia) (Entered: 05/01/2020)

05/04/2020 14 NOTICE of Appearance by Evelyn Lombardo Cusson on behalf of All Defendants (Cusson, Evelyn) (Entered: 05/04/2020)

05/05/2020

15 MOTION for Temporary Restraining Order and/or Preliminary Injunction by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza (Attachments: # 1 Memorandum in Support, # 2 Attachment Declaration of Saba Bireda, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Text of Proposed Order)(Bireda, Saba) (Entered: 05/05/2020)

05/05/2020

16 ORDER confirming the results of the conference call held on 5/5/2020. The defendants' response to the plaintiffs' motion is due on 5/13/2020. Signed by Judge Catherine C. Blake on 5/5/2020. (krs, Deputy Clerk) (Entered: 05/05/2020)

05/05/2020

Telephone Conference held on 5/5/2020 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 05/22/2020)

05/11/2020 17 NOTICE of Appearance by Claudia R. Cubas on behalf of All Plaintiffs (Cubas, Claudia) (Entered: 05/11/2020)

05/12/2020 18 Correspondence re: Joint Notice (Bireda, Saba) (Entered: 05/12/2020)

05/13/2020

19 RESPONSE in Opposition re 15 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf. (Attachments: # 1 Memorandum in Support, # 2 Index of Exhibits, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8)(Cusson, Evelyn) (Entered: 05/13/2020)

05/20/2020 20 Correspondence re: Joint Notice (Bireda, Saba) (Entered: 05/20/2020)

05/20/2020

21 REPLY to Response to Motion re 15 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza.(Bireda, Saba) (Entered: 05/20/2020)

05/22/2020 22 NOTICE of Appearance by Michael K.T. Tan on behalf of All Plaintiffs (Tan, Michael) (Entered: 05/22/2020)

05/22/2020

23 MOTION to Certify Class by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza (Attachments: # 1 Memorandum in Support, # 2 Attachment Declaration of Saba Bireda In Support of Petitioners' Motion for Class Certification, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Text of Proposed Order)(Bireda, Saba) (Entered: 05/22/2020)

05/22/2020

24 MOTION for Leave to File Brief of Amicus Curiae Equal Justice Under Law by Equal Justice Under Law (Attachments: # 1 Memorandum in Support Brief of Amicus Curiae Equal Justice Under Law)(Telfeyan, Phil) (Entered: 05/22/2020)

05/29/2020 25 MEMORANDUM. Signed by Judge Catherine C. Blake on 5/29/2020. (hmls, Deputy Clerk) (Entered: 05/29/2020)

05/29/2020

26 NOTICE by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza re 15 MOTION for Temporary Restraining Order and/or Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bireda, Saba) (Entered: 05/29/2020)

05/29/2020

27 ORDER Granting 15 Motion for TRO, construed as a Motion for a Preliminary Injunction. Signed by Judge Catherine C. Blake on 5/29/2020. (hmls, Deputy Clerk) (Entered: 05/29/2020)

06/05/2020

28 Consent MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Certify Class , 1 Complaint,,,, by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf. (Attachments: # 1 Text of Proposed Order)(Cusson, Evelyn) (Entered: 06/05/2020)

06/08/2020

29 Marginal ORDER approving 24 Motion for Leave to File BRIEF OF AMICUS CURIAE EQUAL JUSTICE UNDER LAW. Signed by Judge Catherine C. Blake on 6/8/2020. (dass, Deputy Clerk) (Entered: 06/08/2020)

06/08/2020

30 ORDER granting 28 Consent Motion for Extension of Time to File Response and Reply re 23 MOTION to Certify Class ; setting deadline Defendants shall respond to the Complaint and Petition for Writ of Habeas. Signed by Judge Catherine C. Blake on 6/8/2020. (dass, Deputy Clerk) (Entered: 06/08/2020)

06/08/2020

31 NOTICE of Filing BRIEF OF AMICUS CURIAE EQUAL JUSTICE UNDER LAW by Equal Justice Under Law. (dass, Deputy Clerk) (Entered: 06/08/2020)

06/19/2020 32 NOTICE of Appearance by Susan M Imerman on behalf of All Defendants (Imerman, Susan) (Entered: 06/19/2020)

06/19/2020

33 Status Report Submitted Joint Status Report by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Imerman, Susan) (Entered: 06/19/2020)

06/30/2020

34 ORDER Confirming the results of the conference call held on June 30, 2020; Directing the parties to provide a Status Report by July 2, 2020. Signed by Judge Catherine C. Blake on 6/30/2020. (bas, Deputy Clerk) (Entered: 07/01/2020)

07/01/2020

35 RESPONSE in Opposition re 23 MOTION to Certify Class filed by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf.(Cusson, Evelyn) (Entered: 07/01/2020)

07/02/2020

36 Status Report Submitted by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf (Attachments: # 1 Exhibit 3, # 2 Exhibit 4)(Cusson, Evelyn) (Entered: 07/02/2020)

07/02/2020

37 STATUS REPORT by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza (Attachments: # 1 Exhibit Pla version of Notice, # 2 Exhibit Pla version of Guidelines)(Steiner, Nicholas) (Entered: 07/02/2020)

07/08/2020

38 ORDER Directing the parties to provide (1) an updated email (2) the supplements they have previously agreed to submit pursuant to ECF 34, (see ECF 36, 37), and (3) a final version of the Notice and Instructions that incorporates the language set forth in this Memorandum by Friday, July 10, 2020. Signed by Judge Catherine C. Blake on 7/8/2020. (bas, Deputy Clerk) (Entered: 07/08/2020)

07/10/2020

39 STATUS REPORT Submitted by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf (Attachments: # 1 Exhibit Exh 1)(Imerman, Susan) (Entered: 07/10/2020)

07/10/2020

40 STATUS REPORT submitted by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza (Attachments: # 1 Exhibit Final IJ Instructions, # 2 Exhibit Final Notice, # 3 Exhibit Email Thread, # 4 Exhibit Translated Notice)(Steiner, Nicholas) (Entered: 07/10/2020)

07/14/2020 41 Status Report Submitted (joint) regarding updated Notice by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad

F. Wolf (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Imerman, Susan) (Entered: 07/14/2020)

07/15/2020

42 ORDER Directing Defendants to complete their review of the Spanish translation but should inform the plaintiffs of any objections to the translation no later than July 17, 2020. Signed by Judge Catherine C. Blake on 7/15/2020. (bas, Deputy Clerk) (Entered: 07/15/2020)

07/17/2020

43 Consent MOTION for Extension of Time to File Response/Reply as to 1 Complaint,,,, by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf (Attachments: # 1 Text of Proposed Order proposed order)(Imerman, Susan) (Entered: 07/17/2020)

07/20/2020

44 ORDER Granting 43 Motion for Extension of Time to File Response/Reply. Signed by Judge Catherine C. Blake on 7/20/2020. (bas, Deputy Clerk) (Entered: 07/20/2020)

07/21/2020

45 STATUS REPORT submitted by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf (Attachments: # 1 Exhibit Spanish Notice)(Imerman, Susan) (Entered: 07/21/2020)

07/22/2020 46 MEMORANDUM TO COUNSEL. Signed by Judge Catherine C. Blake on 7/22/2020. (bas, Deputy Clerk) (Entered: 07/22/2020)

07/23/2020

47 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf Stipulated Confidentiality Order (Cusson, Evelyn) (Entered: 07/23/2020)

07/23/2020 48 PROTECTIVE/CONFIDENTIALITY ORDER. Signed by Judge Catherine C. Blake on 7/23/2020. (bas, Deputy Clerk) (Entered: 07/23/2020)

07/23/2020

49 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. Chad F. Wolf served on 5/11/2020, answer due 7/10/2020. (Attachments: # 1 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

50 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. Matthew T. Albence served on 5/6/2020, answer due 7/6/2020. (Attachments: # 1 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020 51 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. James McHenry

served on 5/2/2020, answer due 7/1/2020. (Attachments: # 1 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

52 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. Janean Ohin served on 5/4/2020, answer due 7/6/2020. (Attachments: # 1 Attachment, # 2 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

53 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. William Delauter served on 5/2/2020, answer due 7/1/2020. (Attachments: # 1 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

54 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. Jack Kavanagh served on 5/6/2020, answer due 7/6/2020. (Attachments: # 1 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

55 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. Donna Bounds served on 5/4/2020, answer due 7/6/2020. (Attachments: # 1 Attachment, # 2 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

56 SUMMONS Returned Executed by Ajibade Thompson Adegoke, Marvin Dubon Miranda, Jose de la Cruz Espinoza. William P. Barr served on 5/7/2020, answer due 7/6/2020. (Attachments: # 1 Attachment, # 2 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/23/2020

57 ACKNOWLEDGEMENT OF SERVICE Executed Acknowledgement filed by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza. (Attachments: # 1 Attachment)(Bireda, Saba) (Entered: 07/23/2020)

07/27/2020

58 NOTICE OF APPEAL as to 25 Memorandum Opinion, 27 Order on Motion for TRO by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf. (Imerman, Susan) (Entered: 07/27/2020)

07/28/2020

59 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 58 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(slss, Deputy Clerk) (Entered: 07/28/2020)

07/30/2020

60 USCA Case Number 20-1828 for 58 Notice of Appeal, filed by Matthew T. Albence, Donna Bounds, William Delauter, William P. Barr, Janean Ohin, Equal Justice Under Law, Chad F. Wolf, James McHenry, Jack Kavanagh. Case Manager - Cathi Bennett (slss, Deputy Clerk) (Entered: 07/30/2020)

08/04/2020 61 NOTICE of Appearance by Whittney Layne Barth on behalf of All Plaintiffs (Barth, Whittney) (Entered: 08/04/2020)

08/04/2020 62 NOTICE of Appearance by Lucy Zhou on behalf of All Plaintiffs (Zhou, Lucy) (Entered: 08/04/2020)

08/04/2020 63 NOTICE of Appearance by Austin Lane Webbert on behalf of All Plaintiffs (Webbert, Austin) (Entered: 08/04/2020)

08/04/2020 64 NOTICE of Appearance by Clare Jewell Horan on behalf of All Plaintiffs (Horan, Clare) (Entered: 08/04/2020)

08/04/2020 65 NOTICE of Appearance by Deborah Kristine Marcuse on behalf of All Plaintiffs (Marcuse, Deborah) (Entered: 08/04/2020)

08/05/2020 66 REPLY to Response to Motion re 23 MOTION to Certify Class filed by Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza.(Marcuse, Deborah) (Entered: 08/05/2020)

08/14/2020

67 STATUS REPORT submitted by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf(Imerman, Susan) (Entered: 08/14/2020)

08/25/2020

68 Consent MOTION to Stay submitted by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf (Attachments: # 1 Text of Proposed Order)(Imerman, Susan) (Entered: 08/25/2020)

08/26/2020 69 PAPERLESS Correspondence to counsel: A Status Report is requested in this matter by OCTOBER 30, 2020. (Blake, Catherine) (Entered: 08/26/2020)

08/26/2020 70 ORDER Granting 68 Motion to Stay. Signed by Judge Catherine C. Blake on 8/26/2020. (ba, Deputy Clerk) . (Entered: 08/27/2020)

08/26/2020

Case Stayed (ba, Deputy Clerk) (Entered: 08/27/2020)

10/29/2020

71 STATUS REPORT joint status report submitted by by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf(Imerman, Susan) (Entered: 10/29/2020)

11/03/2020 72 PAPERLESS Order Approving 71 Status Report. A further Status Report is due DECEMBER 4, 2020. (Blake, Catherine) (Entered: 11/03/2020)

12/04/2020

73 STATUS REPORT joint status report submitted by Matthew T. Albence, William P. Barr, Donna Bounds, William Delauter, Equal Justice Under Law, Jack Kavanagh, James McHenry, Janean Ohin, Chad F. Wolf(Imerman, Susan) (Entered: 12/04/2020)

12/04/2020

74 PAPERLESS ORDER: A status report is requested in this matter on or before March 26, 2021.. Signed by Judge Catherine C. Blake on 12/4/2020. (sm7, Chambers) (Entered: 12/04/2020)

12/04/2020 75 ORDER Denying without prejudice 23 Motion to Certify Class. Signed by Judge Catherine C. Blake on 12/4/2020. (bas, Deputy Clerk) (Entered: 12/04/2020)

12/07/2020 76 PAPERLESS ORDER: a status report is requested in this matter by March 26, 2021. Signed by Judge Catherine C. Blake on 12/7/2020. (sm7, Chambers) (Entered: 12/07/2020)

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1:20-cv01110-CCB
1.20

 
 Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

____________________________________

)

MARVIN DUBON MIRANDA

)

Howard County Detention Center

)

7301 Waterloo Road

)

Jessup, MD 20794

)

Worcester County, MD;

)

)

AJIBADE THOMPSON ADEGOKE

)

Worcester County Detention Center

)

5022 Joyner Road

)

Snow Hill, MD 21863

)

Worcester County, MD;

)

)

and

)

)

JOSE DE LA CRUZ ESPINOZA

)

Howard County Detention Center

)

7301 Waterloo Road

)

Jessup, MD 20794

)

Howard County, MD

)

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs-Petitioners,

)

)

Civil No. ________________

v.

)

)

WILLIAM P. BARR, Attorney General, )

U.S. Department of Justice

)

950 Pennsylvania Ave. NW

)

Washington, D.C. 20530;

)

)

CHAD F. WOLF, Acting Secretary,

)

U.S. Department of Homeland Security )

Secretary of Homeland Security

)

Washington, D.C. 20528;

)

)

MATTHEW T. ALBENCE, Deputy

)

Director and Senior Official Performing )

the Duties of the Director,

)

Immigration and Customs Enforcement )

500 12th St., SW

)

1

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 2 of 29

Washington, D.C. 20536;

)

)

JAMES MCHENRY, Director

)

Executive Office for Immigration Review )

U.S. Department of Justice

)

950 Pennsylvania Ave. NW

)

Washington, D.C. 20530;

)

)

JANEAN A. OHIN, Acting Director,

)

U.S. Immigration and Customs Enforcement )

Baltimore Field Office

)

31 Hopkins Plaza 6th Floor

)

Baltimore, MD 21201

)

Baltimore City;

)

)

WILLIAM DELAUTER, Corrections

)

Bureau Chief

)

Frederick County Adult Detention Center )

7300 Marcies Choice Ln

)

Frederick, MD 21704

)

Frederick County;

)

)

JACK KAVANAGH, Director

)

Howard County Department of Corrections )

7301 Waterloo Rd

)

Jessup, MD 20794

)

Howard County;

)

)

and

)

)

DONNA BOUNDS, Warden

)

Worcester County Detention Center

)

5022 Joyner Rd

)

Snow Hill, MD 21863

)

Worcester County,

)

)

)

Defendants-Respondents. )

)

CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS

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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 3 of 29
INTRODUCTION 1. Liberty is a fundamental right enshrined in the U.S. Constitution, the deprivation of which is only permitted with due process of law. As the Supreme Court has explained, “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). In immigration proceedings, however, Respondents-Defendants (“Respondents”) have turned this principle on its head. Although these are civil proceedings, the government routinely jails noncitizens—including Plaintiffs-Petitioners Marvin Amilcar Dubon Miranda, Ajibade Thompson Adegoke, and Jose de la Cruz Espinoza (“Petitioners”)—pursuant to immigration court custody hearings (colloquially known as “bond hearings”) that lack the most basic due process protections. 2. Respondents’ bond hearings are flawed in two ways. First—in contrast to nearly every other custody hearing in the U.S. legal system—the government jails noncitizens pending their removal proceedings without being required to demonstrate that such detention is even warranted in the first place. Instead, noncitizens bear the burden of proving, to the satisfaction of an immigration judge (“IJ”), that they pose no danger or flight risk and should be free. Second, Respondents condition release on payment of a money bond, without any requirement that IJs consider the noncitizen’s financial circumstances when setting a bond amount, or that IJs consider whether the person can be released on alternative conditions of supervision, such as electronic monitoring, in-person or telephonic reporting, curfews and travel restrictions, home visits, or case management services. As a result, Petitioners and people like them are detained arbitrarily, either because the government has not established that their imprisonment is in fact necessary, or because they are detained under a bond that is set unnecessarily beyond their financial means.
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3. Courts have repeatedly held that such detention is unlawful, but the government’s practices have not abated. Unless this Court intervenes, the government will continue to imprison the Petitioners and others like them without ever being required to prove that this imprisonment is necessary to protect public safety or to ensure their appearance in immigration court, and will guarantee that noncitizens continue to be detained based solely on their poverty.
4. Petitioners bring this action to compel the government to provide constitutionally adequate bond hearings for them and a class of similarly situated people. The proposed class includes all people who are or will be detained under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a), and had or will have a bond hearing before the Baltimore Immigration Court in Baltimore, Maryland. On behalf of themselves and the class, Petitioners seek declaratory and injunctive relief that prohibits further detention without a constitutionally adequate bond hearing— that is, a hearing in which the government bears the burden to prove by clear and convincing evidence that detention is necessary because the noncitizen is a danger to others or a flight risk, and that there is no condition or combination of conditions that will reasonably assure the noncitizen’s future appearance and the safety of the community. Moreover, in setting conditions of release, the immigration court must consider the noncitizen’s ability to pay in setting the amount of any bond and must consider the noncitizen’s suitability for release on alternative conditions of supervision.
5. Respondents’ violations of the Petitioners’ rights have become all the more harmful––and Petitioners’ request for relief all the more urgent––in light of the ongoing COVID19 pandemic. Public health experts have warned that immigration detention centers are hotbeds for the spread of the coronavirus that causes COVID-19—a disease for which there is no vaccine and no cure, and which in many cases results in serious illness and death. There has already been
4

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 5 of 29
a confirmed case of COVID-19 at one of the Maryland detention facilities, the detention facility that is currently holding Petitioners Marvin Amilcar Dubon Miranda and Jose de la Cruz Espinoza.1 Moreover, researchers project that, within 90 days, 72% to nearly 100% of individuals in the custody of U.S. Immigration and Customs Enforcement (“ICE”) will be infected with the COVID-19 virus.2 Given the near-certainty of exposure to COVID-19 in ICE detention, it is more urgent than ever to ensure that individuals held in ICE custody are not deprived of their liberty without due process of law.
PARTIES 6. Petitioner Marvin Amilcar Dubon Miranda is a resident of Baltimore City, Maryland. He has been held in immigration detention since December 12, 2019, 140 days as of today. He is currently detained by ICE at the Howard County Detention Center. 7. Petitioner Ajibade Thompson Adegoke is a resident of Baltimore City, Maryland. He has been held in immigration detention since November 18, 2019, 164 days as of today. He is currently detained by ICE at the Worcester County Detention Center. 8. Petitioner Jose de la Cruz Espinoza is a resident of Georgetown, Delaware, in Sussex County. He has been held in immigration detention since February 12, 2020, 78 days as of today. He is currently detained by ICE at the Howard County Detention Center. 9. Respondent William P. Barr is the Attorney General of the United States. In this capacity, he is responsible for the policies and operations of the U.S. Department of Justice (“DOJ”), including the Executive Office for Immigration Review (“EOIR”), the office that runs
1 Ex. 1 (Notice, ECF No. 71, Coreas, et al. v. Bounds, et al., No. 8:20-cv-00780-TDC (D. Md. Apr. 25, 2020)). 2 Ex. 2 (Michael Irvine, et al., Modeling COVID-19 and impacts on U.S. Immigration and Enforcement (ICE) detention facilities, 2020, Journal of Urban Health 2020), available at https://whistleblower.org/wp-content/uploads/2020/04/Irvine_JUH_ICE_COVID19_model.pdf.
5

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 6 of 29
the nation’s immigration courts and Board of Immigration Appeals. He is sued in his official capacity.
10. Respondent Chad F. Wolf is the Acting Secretary of the U.S. Department of Homeland Security (“DHS”). In this capacity, he directs each of the component agencies within DHS, including ICE. As a result, Respondent Wolf has responsibility for the administration of the immigration laws, and is a legal custodian of the Petitioners. He is sued in his official capacity.
11. Respondent Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. In this capacity, he directs all ICE operations. As a result, Respondent Albence has responsibility for the administration of the immigration laws, and is a legal custodian of the Petitioners and members of the putative class. He is sued in his official capacity.
12. Respondent James McHenry is the Director of EOIR, a component of the U.S. DOJ. In this capacity, he is responsible for the policies and operations of the immigration courts. He is sued in his official capacity.
13. Respondent Janean Ohin is the Acting Field Office Director for the Baltimore Field Office of ICE’s Enforcement and Removal Operations (“ERO”), located in Baltimore, Maryland. She is sued in her official capacity. The Baltimore Field Office is responsible for and has authority over ICE’s apprehension, detention, and removal operations in Maryland. Ms. Ohin is the immediate legal custodian of Petitioners and members of the putative class.
14. Respondent William DeLauter is the Corrections Bureau Chief of the Frederick County Adult Detention Center in Frederick County, Maryland. He is the immediate custodian of numerous members of the putative class. He is sued in his official capacity.
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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 7 of 29
15. Respondent Jack Kavanagh is the Director of the Howard County Detention Center in Howard County Maryland. He is the immediate custodian of Marvin Dubon Miranda and Jose de la Cruz Espinoza and numerous members of the putative class. He is sued in his official capacity.
16. Respondent Donna Bounds is the Warden of the Worcester County Detention Center in Worcester County, Maryland. She is the immediate custodian of Ajibade Thompson Adegoke and numerous members of the putative class. She is sued in her official capacity.
JURISDICTION AND VENUE 17. This Court has subject matter jurisdiction under 28 U.S.C. §§ 2241 et seq., Art. I § 9, cl. 2 of the U.S. Constitution (the Suspension Clause), 28 U.S.C. § 1331 (federal question jurisdiction), 5 U.S.C. § 702 (waiver of sovereign immunity), and 28 U.S.C. § 1346 (original jurisdiction). 18. Venue is proper in the District of Maryland under 28 U.S.C. § 2241(c)(3) and 28 U.S.C. § 1391(b) and (e) because the events giving rise to the claim occurred in this district. DETENTION UNDER THE IMMIGRATION AND NATIONALITY ACT,
8 U.S.C. § 1226(a) 19. Immigration removal proceedings begin when ICE accuses a person of being a noncitizen subject to being removed (commonly, “deported”) from the United States. The person may contest their deportation, and may also apply for various forms of relief from deportation. Many people placed in removal proceedings will not ultimately be deported. However, it takes months or years for the courts to decide if a person should be deported or if they are legally entitled to remain in the United States.3
3 Ex. 3 (Immigration Court Backlog Tool, Transactional Records Access Clearinghouse (TRAC) of Syracuse University), available at https://trac.syr.edu/phptools/immigration/court_backlog/.
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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 8 of 29
20. The government’s authority to jail people during their removal proceedings is generally governed by 8 U.S.C. § 1226. Those individuals are eligible to be released on bond and other conditions of supervision under § 1226(a), unless they are subject to mandatory detention under 8 U.S.C. § 1226(c), which prohibits release on bond for noncitizens who are removable on the basis of certain criminal or national security grounds.
21. For individuals detained under § 1226(a), ICE makes an initial custody determination after the individual’s arrest to decide if an individual should be detained or released on bond or other conditions of supervision. 8 C.F.R. § 1236.1(c)(8).
22. Thereafter, the individual may request a custody redetermination of ICE’s decision from an IJ, through what is colloquially referred to as a “bond hearing.”4 See 8 C.F.R. § 1236.1(d)(1).
23. In the Baltimore Immigration Court, the individual currently waits a week or more in ICE custody to have this bond hearing before the immigration judge. Upon information and belief, over 2,000 noncitizens had bond hearings before the Baltimore Immigration Court between January 1, 2017 and December 31, 2019.
24. The statute and regulations are silent as to who bears the burden of proof at the bond hearing. Indeed, prior to 1999, the government interpreted the statute to impose a presumption of release. The Board of Immigration Appeals (“BIA”)—which makes controlling precedent for immigration judges—held that “[a]n alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security, or that he is
4 The “bond hearing” requested through this action would include consideration of conditions of release other than a monetary bond.
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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 9 of 29
a poor bail risk,” and required that the government provide reasons to justify detention. See Matter of Patel, 15 I. & N. Dec. 666, 666–67 (BIA 1976) (citations omitted).
25. In 1999, the BIA abruptly reversed course and made detained individuals bear the burden of proof in bond hearings. See Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999). Under Adeniji and its progeny, the BIA currently requires that people seeking release prove “to the satisfaction of” an immigration judge that they do not pose a danger to property or persons, and are likely to appear for any future proceeding. See id. at 1112–1113; see also Matter of Guerra, 24 I. & N. Dec. 37, 39 (BIA 2006).5
26. Consequently, ICE routinely holds allegedly removable people in jail without ever being required to show that such detention is necessary. These people—the vast majority of whom are unrepresented by counsel—may affirmatively request and receive bond hearings before immigration judges.6 However, at those hearings, the individuals bear the burden to prove that they should not be jailed because they are not a danger to the community and not a flight risk. As the Supreme Court previously noted, “[i]n . . . litigation it is plain that where the burden of proof lies may be decisive of the outcome.” Speiser v. Randall, 357 U.S. 513, 525 (1958). These individuals are being deprived of freedom—jailed and separated from their families and livelihoods—because

5 See also Ex. 4 (Declaration of Adam N. Crandell (“Crandell Decl.”)) ¶¶ 4, 7; Ex. 5 (Declaration

of Katherine J. Perino (“Perino Decl.”)) ¶ 9; Ex. 6 (Declaration of Michelle N. Mendez (“Mendez

Decl.”)) ¶ 6; Ex. 7 (Declaration of Former Immigration Judge Denise Noonan Slavin (“Judge

Slavin Decl.”)) ¶¶ 5–10.

6 Ex. 8 (Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American

Immigration

Council,

Sept.

28,

2016),

available

at

https://www.americanimmigrationcouncil.org/sites/default/files/research/access_to_counsel_in_i

mmigration_court.pdf.

9

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 10 of 29
they cannot meet the unlawful burden of proving a negative.7 Upon information and belief, in the Baltimore Immigration Court over 300 individuals who were statutorily eligible for bond were denied bond by the IJ in the last three years.
27. Furthermore, individuals who satisfy this unfair evidentiary burden may face an additional hurdle: their release is routinely conditioned on a bond which is set without consideration of their ability to pay. There is no requirement that IJs in the Baltimore Immigration Court even consider an individual’s ability to pay when setting a bond amount.8 As a result, IJs routinely set high bonds that individuals are unable to pay.9 Upon information and belief, bond amounts in the Baltimore Immigration Court range from the statutory minimum of $1,500 to $50,000. Bond amounts are frequently set between $8,000 and $15,000. Moreover, unlike in the criminal context, the individual posting bond must pay the full amount up front to secure release.10 Additionally, IJs in the Baltimore Immigration Court are not required to consider whether an individual is eligible for alternative conditions of release that do not require the posting of bond.11 Such bonds set beyond a person’s ability to pay are simply de facto detention orders.12
7 While placing the burden on a detained individual to prove they are not a flight risk or a danger is onerous for all members of the Class, the impact on individuals proceeding pro se is especially acute. See Ex. 7 (Judge Slavin Decl.) ¶ 6; Ex. 5 (Perino Decl.) ¶¶ 13, 16. 8 See Ex. 4 (Crandell Decl.) ¶ 16; Ex. 5 (Perino Decl.) ¶¶ 21–24; Ex. 6 (Mendez Decl.) ¶ 13; Ex. 7 (Judge Slavin Decl.) ¶¶ 9–10; see also Guerra, 24 I. & N. Dec. at 40 (enumerating factors that the immigration judge may consider in setting bond, without mention of ability to pay). 9 See Ex. 4 (Crandell Decl.) ¶ 14; Ex. 5 (Perino Decl.) ¶ 21. 10 Ex. 5 (Perino Decl.) ¶ 24. 11 Ex. 7 (Judge Slavin Decl.) ¶ 14; Ex. 4 (Crandell Decl.) ¶ 17; Ex. 5 (Perino Decl.) ¶ 23. 12 In one instance, an individual was granted bond in the Baltimore Immigration Court for $7,500 even though he had no criminal convictions and strong family ties. Because he could not afford to pay the amount, he remained detained for six months. While he was in detention, his pregnant U.S. citizen wife and children became homeless and he missed the birth of their son. He was ultimately granted lawful permanent residence. Ex. 5 (Perino Decl.) ¶ 27.
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28. Courts have repeatedly held that the government violates detainees’ constitutional rights by requiring the individual to bear the burden of proof at his or her bond hearing. See, e.g., Brito v. Barr, 415 F. Supp. 3d 258, 263 (D. Mass. 2019) (holding that BIA policy of placing burden of proof on the noncitizen at § 1226(a) bond hearings violates due process), appeal docketed, No. 20-1119 (1st Cir. 2020); see also, e.g., Rajesh v. Barr, 420 F. Supp. 3d 78, 87 (W.D.N.Y. 2019); Darko v. Sessions, 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692 (D. Mass. 2018); Medley v. Decker, No. 18-cv-7361 (AJN), 2019 WL 7374408, at *3 (S.D.N.Y. Dec. 11, 2019); Hernandez-Lara v. ICE, No. 19-cv-394-LM, 2019 WL 3340697, at *3–7 (D.N.H. July 25, 2019); Doe v. Tompkins, No. 18-12266-PBS, 2019 WL 8437191, at *1 (D. Mass. Feb. 12, 2019); Diaz Ortiz v. Tompkins, No. 18-12600-PBS, 2019 WL 7755299, at *1 (D. Mass. Jan. 29, 2019); Brevil v. Jones, No. 17 CV 1529-LTS-GWG, 2018 WL 5993731, at *4 (S.D.N.Y. Nov. 14, 2018); Alvarez Figueroa v. McDonald, --- F. Supp. 3d ---, No. 18-10097, 2018 WL 2209217, at *5 (D. Mass. May 14, 2018).
29. Courts have also repeatedly held that the government is violating detainees’ constitutional rights by failing to consider their ability to pay when setting bond amounts or considering their eligibility for alternative, nonmonetary conditions of release. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 990–94 (9th Cir. 2017); Brito, 415 F. Supp. 3d at 267–68; Lett v. Decker, 346 F. Supp. 3d 379, 389 (S.D.N.Y. 2018); Brissett v. Decker, 324 F. Supp. 3d 444, 454 (S.D.N.Y. 2018).
30. Nevertheless, in this District, the government continues to make individuals bear the burden of proof when they seek release from detention, and to detain individuals on bond
11

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 12 of 29
without consideration of their financial circumstances or suitability for alternative conditions of release.13
31. Unless this Court orders class-wide relief, the government will continue to routinely deny fundamental constitutional and statutory rights to immigration detainees. To comport with due process, at a bond hearing for an 8 U.S.C. § 1226(a) detainee, the government must be required to prove by clear and convincing evidence that the detainee is a danger to others or a flight risk and that no condition or combination of conditions will reasonably assure his/her future appearance and the safety of the community. Additionally, where an immigration judge determines that release is warranted, the immigration judge must consider the detainee’s ability to pay the bond before determining any bond amount, as well as whether alternative, nonmonetary conditions are sufficient to permit his or her release.
32. As described below, Petitioners’ continued civil detention is unlawful because they have not received a bond hearing that meets these standards.
STATEMENT OF FACTS I. Petitioner Marvin Dubon Miranda does not present a flight risk, is not dangerous,
and was prejudiced by a flawed bond hearing. 33. Marvin Dubon Miranda is a 35-year old man from El Salvador who has lived in the United States for more than 10 years.14 He is seeking withholding of removal and protection under the Convention Against Torture because of his resistance to MS-13 control of his community back in El Salvador.15 He is devoted to his 13-year old son, Jason, who lives in Maryland and is the light
13 See Ex. 4 (Crandell Decl.) ¶¶ 4, 16–17; Ex. 5 (Perino Decl.) ¶¶ 9, 21, 23; Ex. 6 (Mendez Decl.) ¶ 13. 14 Ex. 9 (Declaration of Marvin Amilcar Dubon Miranda (“Dubon Miranda Decl.”)) ¶¶ 1–2. 15 Id. ¶ 10.
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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 13 of 29
of Mr. Dubon Miranda’s life, and his partner, Patricia (“Patty”), who is dying from end-stage renal disease.16 He was taken into ICE custody at the courthouse on December 12, 2019 after being sentenced to 60 days (with time served) for driving under the influence (“DUI”).17
34. Mr. Dubon Miranda is not a flight risk. He has lived in the United States for over a decade. His son, Jason, and Jason’s mother, Iris, live in Maryland, and Mr. Dubon Miranda and Iris co-parent Jason.18 Although they are divorced, Mr. Dubon Miranda and Iris maintain a friendly relationship with each other and co-parent their child, and Mr. Dubon Miranda is invested in providing for his son financially and emotionally. Jason is the “most important person in [Mr. Dubon Miranda’s] life.”19 Moreover, Mr. Dubon Miranda is seeking withholding of removal relief and protection under the Convention Against Torture and has every reason to appear for his immigration hearings to pursue that relief.20
35. Mr. Dubon Miranda does not present a danger to the community. He has struggled with alcohol dependence in the past, leading to a conviction in 2017 for a DUI and the aforementioned conviction in 2019.21 However, Mr. Dubon Miranda is committed to his rehabilitation. He has sought out alcohol rehabilitation classes while detained at Howard County Detention Center and is currently waiting to be enrolled.22 He plans to continue seeking substance abuse counseling if he is released, submitted a detailed Post-Release Plan while seeking bond tailored to ensuring his continued rehabilitation, and wants to attend Alcoholics Anonymous.23
16 Id. ¶¶ 3–5. 17 Id. ¶ 8–9. 18 Id. ¶ 3. 19 Id. 20 See id. ¶ 10. 21 Id. ¶¶ 7–8. 22 Id. ¶ 11. 23 Id.
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Aside from his two DUIs, Mr. Dubon Miranda was convicted for misdemeanor second-degree assault over eight years ago.24 The conviction arose from an altercation between Mr. Dubon Miranda and the man with whom his then wife was having an extramarital affair. Mr. Dubon Miranda and his ex-wife have since repaired their relationship as co-parents to their son.25
36. Mr. Dubon Miranda has been in a romantic relationship with his partner, Patty, since 2015.26 Tragically, Patty has a host of serious medical conditions, most severely end-stage renal disease.27 Patty has been in and out of the hospital for several years and relies solely on Mr. Dubon Miranda to care for her and pay for her medical bills.28 In fact, when Mr. Dubon Miranda found out that Patty was suffering from end-stage renal disease, his first instinct was to offer to donate his own kidney to save her life.29 Mr. Dubon Miranda is committed to providing Patty comfort in her final days, which is impossible while he remains in detention.
37. To provide for his loved ones, Mr. Dubon Miranda worked as a construction worker before being detained.30 However, since being detained, he has not been able to pay his bills and has lost his house and car.31
38. On February 26, 2020, Mr. Dubon Miranda had a bond hearing in the Baltimore Immigration Court in front of Immigration Judge Elizabeth Kessler.32 He was represented by counsel and filed substantial documents for the hearing in support of his request for bond, including
24 Id. ¶ 7. 25 Id. 26 Id. ¶ 4. 27 Id. 28 Id. ¶ 5. 29 See Ex. 10 (Dubon Miranda Bond Motion), at 6. 30 Ex. 9 (Dubon Miranda Decl.) ¶ 6. 31 Id. ¶ 19. 32 Id. ¶ 12.
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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 15 of 29
letters from Patty, his son, his ex-wife, and his friends that all account for his strong sense of responsibility and the positive impact he has on all of their lives.33
39. Despite this thorough filing, which provided evidence of the fact that he is not a danger nor a flight risk, Mr. Dubon Miranda was denied bond outright because the IJ found he had failed to prove he was not a danger to the community.34
40. Because Mr. Dubon Miranda remains detained, his partner, Patty, continues to struggle with her terminal illness alone, uncertain about how she will pay the bills for her medical treatment. His son Jason is without his father, and Mr. Dubon Miranda has lost his house and car. II. Petitioner Ajibade Thompson Adegoke is not dangerous, does not present a flight
risk, and was prejudiced by a flawed bond hearing. 41. Ajibade Thompson Adegoke is a 42-year old man from Nigeria who came to the United States in 2017 on a tourist visa.35 He is seeking asylum after members of a political party, still in power today, attacked his hotel and threatened him and his family.36 His wife and five children are back in Nigeria, but since he was detained, Mr. Thompson has not been able to contact them to determine whether they are safe.37 Mr. Thompson is a devout Jehovah’s Witness who has strong ties to the Jehovah’s Witness community in Baltimore.38 42. In October 2019, Mr. Thompson was charged with theft after a misunderstanding with a supermarket employee, who mistakenly thought he was stealing items from the store.39 The
33 See Ex. 10 (Dubon Miranda Bond Motion). 34 See Ex. 11 (February 26, 2020 Order of the IJ Denying Mr. Dubon Miranda Bond). 35 Ex. 12 (Declaration of Ajibade Thompson Adegoke (“Thompson Decl.”)) ¶¶ 1, 3. 36 Id. ¶¶ 5-8. 37 Id. ¶¶ 2, 18. 38 Id. ¶ 4. 39 Id. ¶ 9.
15

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 16 of 29
police issued him a citation and sent him home to appear for court at a later date.40 Mr. Thompson did not know the court date and missed his court appearance.41 When he realized that he had missed his court date, Mr. Thompson responsibly went to the courthouse on October 19, 2019 to turn himself in and avail himself to authorities because he wanted to be an upstanding citizen.42 The theft charge was dropped on November 15, 2019, but he was held until November 18, 2019 when Baltimore ICE agents took him into custody.43
43. Mr. Thompson is not a danger to the community. Mr. Thompson has no criminal convictions besides minor traffic violations, all of which resulted in a traffic citation.44 He is a loving husband and father who was a prominent community member in Nigeria. Mr. Thompson is a devout Jehovah’s Witness, who practices the tenants of neutrality, pacifism, and honesty.
44. Mr. Thompson is not a flight risk. He has a meritorious asylum claim and intends to continue to pursue that claim. He cannot return to Nigeria because he has been attacked and threatened by members of the current ruling political party.45 After coming to the United States, Mr. Thompson started working as a driver for a company in Baltimore and maintained this employment until he was detained.46 Moreover, Mr. Thompson has community ties, as he joined a Jehovah’s Witness congregation in Baltimore to help him continue to practice his faith.47 Most
40 Id. 41 Id. ¶ 10. 42 Id. 43 Id. ¶¶ 11-12. 44 Id. ¶ 15. 45 Id. ¶¶ 5-8. 46 Id. ¶ 3. 47 Id. ¶ 4.
16

Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 17 of 29
tellingly, Mr. Thompson turned himself in to criminal court when he realized that he had missed his court date and wanted to follow the law.48
45. On December 2, 2019, Mr. Thompson had a bond hearing at the Baltimore Immigration Court in front of Immigration Judge Elizabeth Kessler.49 When Mr. Thompson appeared for court pro se via video teleconferencing, he did not even know that he would be having a bond hearing that day.50 His bond hearing lasted approximately five minutes.51 The IJ did not ask him to tell the court why he was neither a danger or a flight risk, and he had no idea what was expected of him during the hearing.52 The IJ did not ask him what his financial situation was and ultimately set his bond at $15,000, which he is unable to pay.53 Mr. Thompson remains detained because of a flawed bond hearing, where he was required, without counsel, to prove he is neither a danger nor a flight risk, and where the IJ did not consider his ability to pay in setting his bond.
46. When Mr. Thompson later processed what happened at his bond hearing, he realized he would never be able to pay a $15,000 bond. He wrote a letter to the IJ on December 22, 2019, asking the IJ to reconsider, informing her that he could not pay the high bond and requested a reduction to a $5,000 bond.54 Mr. Thompson did not receive a response from the court.55
47. Mr. Thompson’s detention has taken a serious toll on him. He has not been able to sleep, often lying awake until 4:00 or 4:30 in the morning, even after taking prescribed sleep
48 Id. ¶ 10. 49 Id. ¶ 14. 50 Id. ¶ 14. 51 Id. ¶ 15. 52 Id. 53 Id. ¶¶ 14, 16–17; Ex. 13 (December 2, 2019 Bond Order of the IJ for Mr. Thompson). 54 See Ex. 14 (December 22, 2019 Letter from Mr. Thompson to IJ Kessler). 55 Ex. 12 (Thompson Decl.) ¶ 16.
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medication.56 He is often so depressed because of his detention that he stays in his cell for four or five days without leaving.57
48. Mr. Thompson’s detention is made worse by the uncertainty of his family’s safety back in Nigeria. The persecutors who targeted him have also stalked his wife and vandalized Mr. Thompson’s hotel after he fled to the United States.58 Mr. Thompson has had no way of contacting his family members since he was taken into ICE custody because he does not have their phone numbers or a way to acquire them.59 Mr. Thompson is plagued by the thought that his family members may be dead, and he has no way of knowing.60 III. Petitioner Jose de la Cruz Espinoza is not dangerous, does not present a flight risk,
and was prejudiced by a flawed bond hearing. 49. Jose de la Cruz Espinoza is a 25-year old Mexican man who came to the United States in 2008, when he was just 14 years old.61 He and his wife, Karla, have raised four children together, all of whom are U.S. citizens.62 Before he was detained, he ran a landscaping company with his wife, residing in Georgetown, Delaware.63 He is currently seeking Cancellation of Removal relief (“42B Cancellation”) and asylum.64 50. Mr. de la Cruz Espinoza came into ICE custody as a result of pending criminal charges for two counts of Second Degree Assault and Malicious Destruction of Property Valued <$1,000, which arose from a verbal dispute between Mr. de la Cruz Espinoza and his brother while
56 Id. ¶ 17. 57 Id. ¶ 19. 58 Id. ¶ 8. 59 Id. ¶ 18. 60 Id. 61 Ex. 15 (Declaration of Jose de la Cruz Espinoza (“de la Cruz Espinoza Decl.”)) ¶ 1. 62 Id. ¶ 2. 63 Id. ¶¶ 3-4. 64 Id. ¶¶ 15, 22.
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Mr. de la Cruz Espinoza’s wife was present.65 Mr. de la Cruz Espinoza and his wife were at his brother’s house when they got into a heated verbal argument. Mr. de la Cruz Espinoza’s daughter was startled by the yelling and called the police.66 Both his brother and his wife want the charges dropped and have tried repeatedly to contact the State’s Attorney to request they be dropped.67 Mr. de la Cruz Espinoza did not harm anyone the night he was arrested and was taken into custody because he could not explain to the police what had happened due to a language barrier.68 In fact, he was initially given a $1,500 criminal bond—much lower than his immigration bond—which was later reduced at a bail review hearing before a judge, and he was ordered to be released on his own recognizance.69 However, before he could be released, ICE picked him up from criminal custody and brought him to ICE custody at the Howard County Detention Center.70
51. Mr. de la Cruz Espinoza is not a danger to the community. He has no criminal convictions besides traffic violations.71
52. Nor is Mr. de la Cruz Espinoza a flight risk. He is a devoted father and husband who works hard to support his wife and four U.S. citizen children and is not a threat to community safety. He has been in the United States since 2008, when he was 14 years old.72 He founded a landscaping company with his wife and both of them earn between $2,000 and $4,000 per month,
65 Id. ¶ 5. 66 Id. 67 Id. ¶ 8. 68 Id. ¶ 5. 69 Ex. 16 (February 11, 2020 Release from Commitment for Mr. de la Cruz Espinoza). 70 Ex. 15 (de la Cruz Espinoza Decl.) ¶ 6. 71 Id. ¶ 9. 72 Id. ¶ 1.
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depending on the time of year.73 They work hard but have little left to save after monthly expenses.74
53. Furthermore, Mr. de la Cruz Espinoza is seeking 42B Cancellation of Removal relief and fear-based relief from removal, and he has every reason to see those pursuits through to the end.
54. On February 19, 2020, Mr. de la Cruz Espinoza had a bond hearing in the Baltimore Immigration Court in front of Immigration Judge Elizabeth Kessler.75 He was represented by counsel and requested a bond of $5,000.76 Mr. de la Cruz Espinoza’s bond hearing lasted approximately five to ten minutes, and he did not know it was his burden to prove that he is not a danger to the community nor a flight risk.77
55. Mr. de la Cruz Espinoza’s counsel explained to the IJ his tight financial circumstances, including that he was the primary breadwinner for his family and that his wife could no longer work since she was the sole caregiver while he is detained.78 Mr. de la Cruz Espinoza had a hard time understanding what was happening, because his primary language is Spanish, and very little during the hearing was interpreted for him.79 The IJ set the bond at $20,000 solely on the basis of his pending charge, despite the fact that Mr. de la Cruz Espinoza’s attorney alerted the court that he was released on his own recognizance at his criminal bail hearing one
73 Id. ¶ 4. 74 Id. 75 Id. ¶ 12. 76 Id. ¶ 11. 77 Id. ¶¶ 13-14. 78 Id. ¶ 13. 79 Id. ¶ 14.
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week prior.80 Mr. de la Cruz Espinoza remains detained because neither he nor his family can pay such a high bond.81
56. On March 4, 2020, Mr. de la Cruz Espinoza had another Master Calendar Hearing before Judge Kessler. He told the judge that he was proceeding pro se because he could no longer afford an attorney.82 He tried to ask the judge to reconsider his bond because he was not able to pay but was interrupted before he could explain.83 She denied his request, stating that she could only reduce his bond if he filed a motion showing changed circumstances.84 Without counsel, Mr. de la Cruz Espinoza did not understand what was required to file such a motion. Also, at that hearing, the government introduced a form I-213 into evidence, which stated that Mr. de la Cruz Espinoza accepted voluntary departure and returned to Mexico in 2011, which is not true.85 The government argued that this made him ineligible for 42B Cancellation of Removal relief.86 Mr. de la Cruz Espinoza did not have a chance to review the document before or during the hearing.87 The I-213 was sprung upon him without notice for him to prepare to meet his burden.88
57. Despite going before the IJ twice, explaining his limited financial circumstances the first time and informing the judge that he could no longer afford counsel the second time, Mr. de la Cruz Espinoza remains detained and separated from his family, leaving his wife to raise their children and support them financially on her own. Without Mr. de la Cruz Espinoza to help
80 Id. ¶ 13; Ex. 17 (February 19, 2020 Bond Order of the IJ for Mr. de la Cruz Espinoza). 81 Ex. 15 (de la Cruz Espinoza Decl.) ¶ 16. 82 Id. ¶ 15. 83 Id. ¶ 15. 84 Id.; see Ex. 5 (Perino Decl.) ¶ 11. 85 Ex. 15 (de la Cruz Espinoza Decl.) ¶ 15. 86 Id. 87 Id. 88 Id.; see Ex. 5 (Perino Decl.) ¶ 16.
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financially and with the landscaping business, his wife has to rely on tax returns and food banks to make ends meet and feed their family.89 His children have suffered in school, and visibly suffer from the emotional trauma of being separated from their father.90
IV. COVID-19 has infiltrated Maryland detention facilities and makes constitutionally and statutorily adequate bond hearings all the more important to reduce risk of exposure to COVID-19.
58. COVID-19 has become a global pandemic. As of April 29, 2020, there were over
3 million confirmed cases and 207,900 deaths worldwide, with more than 980,000 confirmed cases and 50,000 deaths in the United States.91 In Maryland, over 21,000 people have tested positive for COVID-19 and over 1,000 people have died from the disease as of April 30, 2020.92 The Governor of Maryland issued a stay-at-home order on March 30, 2020.93 The coronavirus has spread
dramatically in Maryland jails and prisons. As of April 23, 2020, there have been 180 confirmed cases, including one death in the state’s correctional system.94 On April 18, 2020, Maryland’s
Governor issued an executive order allowing for the potential release of hundreds of incarcerated individuals who are especially vulnerable to serious illness or death if they contract COVID-19.95
89 Ex. 15 (de la Cruz Espinoza Decl.) ¶ 19. 90 Id. ¶¶ 20–21. 91 Ex. 18 (Coronavirus Disease (COVID-19) Situation Report - 99, World Health Org. (Apr. 29, 2020)), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200429-sitrep-100-covid-19.pdf?sfvrsn=bbfbf3d1_6. 92 Ex. 19 (Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Dep’t of Health (accessed Apr. 30, 2020)), available at https://coronavirus.maryland.gov/. 93 See Ex. 20 (Order of the Governor of the State of Maryland § II, No. 20-03-30-01 (Mar. 30, 2020)), available at https://governor.maryland.gov/wp-content/uploads/2020/03/GatheringsFOURTH-AMENDED-3.30.20.pdf. 94 Ex. 21 (Tiffany Watson, 180 Confirmed COVID-19 Cases in Maryland Correctional Facilities, Fox5News (Apr. 23, 2020)), available at https://foxbaltimore.com/news/local/180-confirmedcovid-19-cases-in-maryland-correctional-facilities. 95 See Ex. 22 (Order of the Governor of the State of Maryland, No. 20-04-18-01 (Apr. 18, 2020)), available at https://governor.maryland.gov/wp-content/uploads/2020/04/Prisoner-Release4.18.20.pdf; Ex. 23 (Danielle E. Gaines, Hogan Issues Order to Guide Speedier Inmate Releases
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59. As this Court has found, “[p]risons, jails, and detention centers are especially vulnerable to outbreaks of COVID-19.”96 Jails and prisons are prime settings for the rapid spread of highly contagious infectious diseases like COVID-19.97 Mitigation strategies to effectively address an outbreak require extensive testing, medical isolation in negative pressure rooms, and social distancing practices.98 It is harder for individuals to practice social distancing in detention centers and easier for the disease to spread through droplets in these often poorly ventilated facilities.99 On April 25, 2020, government officials confirmed that one person in Howard County Detention Center, where Marvin Dubon Miranda and Jose de la Cruz Espinoza (as well as numerous members of the putative class) are detained, has tested positive for COVID-19.100 In Howard County Detention Center, the dormitory-style housing structure makes social distancing impossible.101 In Howard County Detention Center and Worcester County Detention Center, individuals are housed in shared cells, rendering social distancing is impossible.102 It is likely that the unconfirmed cases in Maryland ICE facilities are far more numerous, given the inadequate numbers of tests being administered.103 Data suggests that serious illness occurs in up to 16% of
During COVID-19 Outbreak, Maryland Matters (Apr. 19, 2020)), available at https://www.marylandmatters.org/2020/04/19/hogan-issues-order-to-guide-speedier-inmatereleases-during-covid-19-outbreak/. 96 Ex. 24 (Memorandum Opinion, ECF No. 56, Coreas, et al. v. Bounds, et al., No. 8:20-cv-00780TDC (D. Md. Apr. 3, 2020)), at 4; see also, Ex. 25 (Declaration of Dr. Jaimie Meyer (“Dr. Meyer Decl.”)) ¶¶ 9–10 (stating that the risk posed by infectious diseases in jails and prisons as significantly higher than in the community)). 97 Ex. 25 (Dr. Meyer Decl.) ¶¶ 11, 22. 98 Id. ¶¶ 16, 29–30. 99 Id. ¶ 11. 100 See Ex. 1 (Notice). 101 Ex. 25 (Dr. Meyer Decl.) ¶ 29. 102 Id. 103 See Ex. 24 (Memorandum Opinion), at 27 (recognizing that detention facilities in Maryland “are currently unable or unwilling to test for the Coronavirus”); Ex. 25 (Dr. Meyer Decl.) ¶ 32.
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those infected.104 As a result, individuals who are statutorily eligible for bond but arbitrarily denied bond or burdened by an amount he or she cannot pay are now not only having their due process rights violated, but also being subjected to heightened risk of serious illness or, possibly, death.
CLASS ALLEGATIONS 60. The foregoing allegations are re-alleged and incorporated herein. 61. Petitioners seek to represent a class defined as people who, now or at any future time, are detained pursuant to 8 U.S.C. § 1226(a), and either had or will have a bond hearing in the Baltimore Immigration Court in Baltimore, Maryland. The members of the class are readily ascertainable through Respondents’ records. 62. Petitioners bring this action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), and as a representative habeas class action, on behalf of themselves and all other similarlysituated persons. 63. The class is so numerous that joinder of all members is impracticable. Publicly available information concerning the number of ICE detainees in Maryland indicates that the portion of the class consisting of current detainees under 8 U.S.C. § 1226(a) consists of at least several hundred individuals. From October 2018 to September 2019, over 600 individuals had bond hearings in the Baltimore Immigration Court.105 The class is substantially larger when all future potential detainees under § 1226(a) are included. 64. There are multiple questions of law common to the members of the proposed class. These common questions include, but are not limited to, the following:
104 Ex. 25 (Dr. Meyer Decl.) ¶ 23. 105 See Ex. 26 (Immigration Court Bond Hearings and Related Case Decisions, Transactional Records Access Clearinghouse (TRAC) of Syracuse University), available at https://trac.syr.edu/phptools/immigration/bond/.
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a. Whether the Due Process Clause requires that individuals detained pursuant to § 1226(a) receive a bond hearing at which both (1) the government must prove dangerousness and flight risk by clear and convincing evidence; and (2) the IJ is required to consider the noncitizen’s ability to pay in setting the bond amount and to consider the noncitizen’s suitability of release on alternative conditions of supervision; and
b. Whether the Immigration and Nationality Act requires that IJs consider a § 1226(a) noncitizen’s ability to pay in setting a bond amount and that IJs consider the noncitizen’s suitability for release on alternative conditions of release
65. Petitioners’ claims are typical of the claims of the proposed class, and Petitioners will fairly and adequately protect the interests of the proposed class. Petitioners’ interests do not conflict with those of other members of the proposed class, and Petitioners have retained competent counsel experienced in class actions and immigration law.
66. Moreover, certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because class members are subject to a common practice by Respondents: detention based upon an inadequate bond hearing at which the detainee bears the burden of establishing that they are not a flight risk and does not pose a danger to the community, with no requirement that the immigration judge consider their eligibility for release on non-monetary conditions, or their ability to pay when setting a bond amount.
CLAIMS FOR RELIEF Count One – Detention in Violation of the Due Process Clause of the Fifth Amendment
67. The foregoing allegations are re-alleged and incorporated herein.
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68. The Fifth Amendment to the U.S. Constitution prohibits the government from depriving individuals of their liberty without due process of law.
69. Due process prohibits the detention of individuals under 8 U.S.C. § 1226(a) absent a bond hearing where the government bears the burden to justify continued detention by proving by clear and convincing evidence that the individual is a flight risk or danger to others, and that no condition or combination of conditions will reasonably assure the detainee’s future appearance and the safety of the community.
70. Due process also requires that the government consider the individual’s ability to pay in selecting the amount of any bond and suitability for release on alternative conditions of supervision.
71. Petitioners, and all members of the proposed class, are or will be detained without receiving a bond hearing with these basic requirements. For this reason, their detention violates their rights under the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
Count Two – Detention in Violation of the Immigration and Nationality Act 72. The foregoing allegations are re-alleged and incorporated herein. 73. Petitioners, and all members of the proposed class, are or will be detained in violation of the Immigration and Nationality Act, 8 U.S.C. § 1226(a). That statute states that Respondents are authorized to release civilly detained individuals on a monetary bond of at least $1,500 or on conditional parole. 74. Section 1226(a), as correctly interpreted, requires that the bond or other conditions of release for detained individuals be reasonably calculated to secure the individual’s appearance at future proceedings.
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75. A reasonable bond or reasonable conditions of release cannot be determined
without adequately considering detained individuals’ financial circumstances and whether
alternative nonmonetary conditions of release would sufficiently mitigate flight risk.
76. Respondents’ detention of Petitioners and the proposed class members on bonds
and conditions of release that are not reasonably calculated or necessary to mitigate flight risk
violates the Immigration and Nationality Act.
PRAYER FOR RELIEF
Wherefore, Petitioners asks this Court to grant them the following relief:
1. Enter an order compelling the release of each named Petitioner unless, within seven days of this Court’s order, he is provided with an adequate bond hearing as described in paragraph 4 below, before an Immigration Judge in the Baltimore Immigration Court;
2. Certify a class defined as: All people who, now or at any future time, are detained pursuant to 8 U.S.C. § 1226(a), and either had or will have a bond hearing in the Baltimore Immigration Court in Baltimore, Maryland;
3. Name the individually named Petitioners as representatives of the class, and appoint Petitioners’ counsel as class counsel;
4. Declare that each class member is entitled to a bond hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detainee is a danger to others or a flight risk and that no condition or combination of conditions will reasonably assure the detainee’s future appearance and the safety of the community, and which includes consideration of the detainee’s ability to pay in selecting the amount of any bond and suitability for release on alternative conditions of supervision;
5. Order that each class member currently detained be released unless provided with a new bond hearing in the Baltimore Immigration Court consistent with paragraph 4 within a reasonable period as determined by the Court;
6. Grant attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq., if applicable; and
7. Grant any other and further relief that this Court may deem fit and proper.
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Dated: April 30, 2020 Baltimore, MD

Respectfully Submitted,
/s/ Nicholas T. Steiner (Bar No. 19670) Sonia Kumar (Bar No. 07196) AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8555 steiner@aclu-md.org kumar@aclu-md.org
Michael K. T. Tan* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004 Tel: (347) 714-0740 mtan@aclu.org
Adina Appelbaum* Claudia Cubas (Bar No. 19735) Jenny Kim* Melody Vidmar* CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION 1612 K Street NW Washington, DC 20006 Telephone: (202) 899-1412 adina@caircoalition.org claudia.cubas@caircoalition.org jenny@caircoalition.org melody@caircoalition.org
Deborah K. Marcuse + Clare J. Horan + Austin L. Webbert + Whittney L. Barth + SANFORD HEISLER SHARP, LLP 111 South Calvert Street, Suite 1950 Baltimore, MD 21202 Telephone: 410-834-7415 dmarcuse@sanfordheisler.com choran@sanfordheisler.com

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Case 1:20-cv-01110 Document 1 Filed 04/30/20 Page 29 of 29 awebbert@sanfordheisler.com wbarth@sanfordheisler.com Saba Bireda* SANFORD HEISLER SHARP, LLP 700 Pennsylvania Ave SE, Suite 300 Washington, D.C. 20003 Telephone: (410) 834-7420 sbireda@sanfordheisler.com *Application for admission pro hac vice forthcoming + Application for admission to the U.S. District Court for the District of Maryland pending Attorneys for Petitioners and the putative class
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 Case 1:20-cv-01110-CCB Document 25 Filed 05/29/20 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARVIN DUBON MIRANDA, et al.

*

*

v.

*

Civil No. 20-1110

*

WILLIAM P. BARR, et al.

*

*

* * * * * * * * * * * * *** * * * * * * * * * * * *

MEMORANDUM

Immigration and Customs Enforcement (“ICE”) detainees Marvin Dubon Miranda,

Ajibade Thompson Adegoke, and Jose de la Cruz Espinoza (the “lead plaintiffs”), filed a class

action complaint and petition for writ of habeas corpus contesting the adequacy of the bond

hearings that resulted in their detention. (ECF 1).1 Now pending is the lead petitioners’ motion

for a temporary restraining order (“TRO”) and/or a preliminary injunction. (ECF 15). The

motion is fully briefed, and no hearing is necessary. For the reasons explained below, the motion

will be granted.

BACKGROUND

I. Statutory and regulatory framework

The lead plaintiffs and the members of the proposed class are detained under 8 U.S.C. §

1226(a), the provision of the Immigration and Nationality Act (“INA”) that governs the arrest

and detention of noncitizens pending a decision on removal. See Jennings v. Rodriguez, 138 S.

Ct. 830, 837 (2018). Section 1226(a) provides that:

On a warrant issued by the Attorney General, an alien may be arrested and detained

1 The lead plaintiffs name as defendants Attorney General William P. Barr; Chad F. Wolf, Acting Secretary of the U.S. Department of Homeland Security; Matthew T. Albence, Deputy Director and Senior Official Performing the Duties of the Director of Immigration and Customs Enforcement (“ICE”); James McHenry, Director of the Executive Office for Immigration Review; Janean A. Ohin, Acting Director of ICE’s Baltimore Field Office; William Delauter, Corrections Bureau Chief of Frederick County Adult Detention Center; Jack Kavanagh, Director of the Howard County Department of Corrections; and Donna Bounds, Warden of Worcester County Detention Center. (ECF 1).

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pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c)[2] and pending such decision, the Attorney General--
(1) may continue to detain the arrested alien; and (2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole; but (3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
8 U.S.C. § 1226(a).
Pursuant to federal regulations, an ICE officer makes an initial custody determination
upon arrest. See 8 C.F.R. § 236.1(c)(8). If the noncitizen can demonstrate that she is neither a
flight risk nor poses a danger to the community, the ICE officer may release the noncitizen on
bond or other conditions of release. Id. The noncitizen may later seek review of the initial bond
determination by an Immigration Judge (“IJ”) at a bond hearing. 8 C.F.R. § 1236.1(d)(1); accord
Jennings, 138 S. Ct. at 847. Thereafter, the noncitizen may appeal the IJ’s determination to the
Board of Immigration Appeals (“BIA”). See 8 C.F.R. §§ 1236.1(d)(3), 1003.1(b)(7).
Neither § 1226(a) nor its implementing regulations specify who bears the burden of proof
at bond hearings, but the BIA currently requires that the noncitizen “show to the satisfaction of
the Immigration Judge that he or she merits release on bond.” See In Re Guerra, 24 I. & N. Dec.
37, 40 (B.I.A. 2006); accord Brito v. Barr, 395 F. Supp. 3d 135, 145 (D. Mass. 2019). Moreover,
while § 1226(a) prescribes a minimum bond amount—$1,500—there is no explicit requirement
either in the statute or the regulations that an IJ consider, when setting bond, a noncitizen’s
ability to pay. See, e.g., In re Castillo-Cajura, 2009 WL 3063742, at *1 (B.I.A. Sept. 10, 2009)
2 Section 1226(c) provides for mandatory detention pending removal for certain classes of noncitizens. See 8 U.S.C. § 1226(c). The parties agree that § 1226(c) does not apply here.
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(noting, in an unpublished opinion, that “an alien’s ability to pay the bond amount is not a relevant bond determination factor”). II. Lead plaintiffs3
A. Marvin Dubon Miranda Mr. Dubon Miranda is a 35-year old man from El Salvador who has been in the United States for over ten years. (Compl. ¶¶ 33, ECF 1). Prior to his detention, he resided in Baltimore City, Maryland, with his partner, who is dying of end-stage renal disease. (Compl. ¶¶ 6, 33). He is seeking withholding of removal and protection under the Convention Against Torture (“CAT”) related to his resistance to MS-13 control of his community in El Salvador. (Id. ¶ 33). Mr. Dubon Miranda and his ex-wife co-parent their 13-year old son, who lives in Maryland with his mother. (Id. ¶¶ 33–34). Prior to his detention, Mr. Dubon Miranda worked as a construction worker to financially support himself, his partner, and his son. (Id. ¶ 37). Mr. Dubon Miranda was taken into ICE custody on December 12, 2019, after being sentenced to 60 days incarceration for driving under the influence (“DUI”). (Compl. ¶ 33). He had previously been convicted of a DUI in 2017 and states that he struggles with alcohol dependence. (Id. ¶ 35). On February 26, 2020, Mr. Dubon Miranda had a bond hearing in Baltimore Immigration Court in front of IJ Elizabeth Kessler. (Id. ¶ 38). He was represented by counsel and presented evidence in support of his request for release on bond. (Id.). Upon finding that Mr. Dubon Miranda had failed to prove he was not a danger to the community, however, the IJ denied bond. (Id. ¶ 39). At the time the Complaint was filed, Mr. Dubon Miranda was in ICE custody at the Howard County Detention Center (“HCDC”). (Id. ¶ 6). On May 18, 2020, however, Mr. Dubon
3 As explained more fully below, the claims for injunctive relief by two of the three lead plaintiffs are now moot.
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Miranda’s application for withholding of removal was granted, and he was released from ICE custody. (See ECF 20).4
B. Ajibade Thompson Adegoke Mr. Thompson is a 42-year old man from Nigeria who came to the United States in 2017 on a tourist visa. (Compl. ¶ 41). Prior to his detention, he worked as a driver for a Baltimore company, and had no criminal record except for traffic violations. (Id. ¶¶ 43–44). He is seeking asylum on the basis of threats to him and his family by members of a political party in Nigeria. (Id. ¶ 41). Mr. Thompson’s wife and five children remain in Nigeria, and due to his detention, Mr. Thompson was unable to contact them to determine whether they are safe. (Id.). Mr. Thompson has strong ties to the Jehovah’s Witness community in Baltimore. (Id.). Mr. Thompson was charged with theft in October 2019, which he contends was based on a supermarket employee’s mistaken belief that Mr. Thompson was stealing from the store. (Compl. ¶ 42). The police issued Mr. Thompson a citation instructing him to appear in court at a later date. (Id.). Mr. Thompson inadvertently missed his court date, but, upon realizing his mistake, he went to the courthouse on October 19, 2019, and turned himself in. (Id.). The theft charge was dropped on November 15, 2019, but Mr. Thompson was held until November 18, 2019, when he was taken into ICE custody. (Id.). On December 2, 2019, Mr. Thompson had a bond hearing at the Baltimore Immigration Court before IJ Kessler. (Compl. ¶ 45). He appeared pro se via video teleconferencing, did not know he would be having a bond hearing that day, and did not know what was expected of him during the hearing. (Id.). The IJ did not ask him what his financial situation was, nor did she ask
4 The Joint Notice informing the court of Mr. Dubon Miranda’s release indicates that he was released from Worcester County Detention Center, (see ECF 20), while the Complaint states that he was being detained at HCDC, (see Compl. ¶ 6). This discrepancy has no bearing on the outcome of this motion, as there is no dispute that Mr. Dubon Miranda was in ICE custody prior to his release.
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Mr. Thompson to tell the court why he was neither a danger nor a flight risk. (Id.). The IJ ultimately set bond at $15,000, an amount Mr. Thompson was unable to pay. (Id.). He later requested a bond reduction to $5,000, to which the court did not respond. (Id. ¶ 46).
At the time the Complaint was filed, Mr. Thompson was detained at the Worcester County Detention Center. (Id. ¶ 7). On May 7, 2020, however, Mr. Thompson’s application for asylum was granted and he was released. (See ECF 18).
C. Jose de la Cruz Espinoza Mr. de la Cruz Espinoza is a 25-year old man from Mexico who came to the United States in 2008, when he was 14 years old. (Compl. ¶ 49). Prior to his detention, Mr. de la Cruz Espinoza resided in Georgetown, Delaware, with his wife, with whom he runs a landscaping company, and their four U.S. citizen children. (Id.). Mr. de la Cruz Espinoza is currently seeking Cancellation of Removal relief (“42B Cancellation”) and asylum. (Id.). Mr. de la Cruz Espinoza was taken into ICE custody as a result of pending criminal charges for two counts of Second Degree Assault and Malicious Destruction of Property Valued <$1,000, which arose from a dispute between Mr. de la Cruz Espinoza and his brother. (Compl. ¶ 50).5 After Mr. de la Cruz Espinoza’s daughter called the police, Mr. de la Cruz Espinoza was arrested, and his criminal bond initially set at $1,500. (Id.). At a bail review hearing, however, the judge ordered Mr. de la Cruz Espinoza released on his own recognizance. (Id.). Before Mr. de la Cruz Espinoza could be released, ICE took Mr. de la Cruz Espinoza into custody and brought him to HCDC. (Id.) On February 19, 2020, Mr. de la Cruz Espinoza had a bond hearing in the Baltimore Immigration Court in front of IJ Kessler. (Compl. ¶ 54). He was represented by counsel and
5 According to the Complaint, no one was harmed in the dispute and Mr. de la Cruz Espinoza’s wife (who was present at the time) and brother both wish for the charges to be dropped. (Compl. ¶ 50).
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requested bond be set at $5,000. (Id.). According to the Complaint, Mr. de la Cruz Espinoza’s bond hearing lasted approximately five to ten minutes, he did not know it was his burden to prove that he is not a danger to the community nor a flight risk, and he had trouble understanding what was happening due to a language barrier. (Id. ¶¶ 54–55). The IJ set bond at $20,000, which Mr. de la Cruz Espinoza asserts is too high for him or his family to pay. (Id. ¶ 55).
On March 4, 2020, Mr. de la Cruz Espinoza had another hearing before IJ Kessler, at which he appeared pro se. (Compl. ¶ 56). Mr. de la Cruz Espinoza asked the IJ to reconsider bond due to his inability to pay. (Id.). The IJ denied the request, stating she could only reduce bond if he filed a motion showing changed circumstances. (Id.).6 Mr. de la Cruz Espinoza remains detained at HCDC. III. The class action complaint
The lead plaintiffs bring this class action on behalf of themselves and all people who are or will be detained under 8 U.S.C. § 1226(a), and had or will have a bond hearing before the Baltimore Immigration Court in Baltimore, Maryland. (Compl. ¶ 4). At bond hearings held in Baltimore Immigration Court, a noncitizen seeking release on bond bears the burden of proving that she is neither a danger to the community nor a flight risk. (Id. ¶¶ 26, 30). Moreover, there is no requirement that IJs in the Baltimore Immigration Court consider an individual’s ability to pay when setting bond amounts, which are frequently set between $8,000 and $15,000 and— unlike in the criminal context—must be paid upfront and in full. (Id. ¶ 27).
On behalf of themselves and all members of the proposed class, the lead plaintiffs bring
6 According to the Complaint, the government introduced at this hearing a form I-213 stating that Mr. de la Cruz Espinoza accepted voluntary departure and returned to Mexico in 2011, which would make him ineligible for 42B Cancellation of Removal relief. (Compl. ¶ 56). Mr. de la Cruz Espinoza states that did not have a chance to review this document before the hearing, but asserts that he did not return to Mexico in 2011, nor has he left the United States at all since 2008. (Id.; de la Cruz Espinoza Decl. ¶ 15, ECF 1-15).
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two claims for relief. In Count One, they allege that Fifth Amendment due process is violated when the government detains individuals under § 1226(a) absent the following procedures: (1) a bond hearing where the government bears the burden to justify continued detention by proving by clear and convincing evidence that the individual is a flight risk or a danger to others; and (2) an assessment of an individual’s ability to pay bond and the suitability of alterative conditions of release. (Compl. ¶¶ 69–70). Because the lead plaintiffs, “and all members of the proposed class, are or will be detained without receiving a bond hearing with these basic requirements,” they allege that their detention violates the Fifth Amendment. (Id. ¶ 71). In Count Two, the lead plaintiffs allege that their detention also violates the INA because a correct interpretation of § 1226(a) requires that the government “adequately consider[] detained individuals’ financial circumstances and whether alternative nonmonetary conditions of release would sufficiently mitigate flight risk.” (Id. ¶¶ 74–75). The lead plaintiffs seek class certification, declaratory relief, and an order that each member of the class be released unless provided with a new bond hearing. (Id. at 27). IV. TRO and/or preliminary injunction
On May 5, 2020, the lead plaintiffs filed a motion for a TRO and/or a preliminary injunction, asking the court to immediately order new bond hearings that (1) shift the burden of proof to the government to demonstrate, by clear and convincing evidence, that a noncitizen is a flight risk or poses a danger to the community; and (2) consider a noncitizen’s ability to pay bond and suitability for alternative conditions of release. (Mot. at 1–2, ECF 15-1). The lead plaintiffs assert that they are likely to succeed on the merits of the class action complaint, and that they will suffer irreparable harm if the court declines to impose a TRO or preliminary injunction. The lead plaintiffs argue that continued detention pursuant to procedurally flawed
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bond hearings in itself constitutes irreparable harm, but also that “the threat of irreparable harm is especially severe in light of the COVID-19 pandemic.” (Id. at 2).
In response, the defendants first argue that the court does not have jurisdiction over the lead plaintiffs’ claims because (1) the lead plaintiffs failed to exhaust their administrative remedies, and (2) 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) strip the district court of jurisdiction to review discretionary judgments of the Baltimore Immigration Court. (Opp’n at 2–3, 12–16, ECF 19-1). The defendants also contend that the lead plaintiffs’ claims fail to make the required showing to justify imposition of a TRO or preliminary injunction. (Id. at 3, 27–28).
DISCUSSION I. Mr. Dubon Miranda’s and Mr. Thompson’s release from detention
As an initial matter, the court considers the impact of Mr. Dubon Miranda’s and Mr. Thompson’s release from detention. As they have been released from ICE custody, their claims for injunctive relief are now moot. See United States v. Hardy, 545 F. 3d 280, 283 (4th Cir. 2008) (“a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” (citation omitted)). The mootness of Mr. Dubon Miranda’s and Mr. Thompson’s claims does not, of course, affect Mr. de la Cruz Espinoza’s claims; Mr. de la Cruz Espinoza could, based on his own claims regarding the deficiencies of his bond hearing, represent the entire proposed class. But in light of the timing of Mr. Dubon Miranda’s and Mr. Thompson’s releases, and the real possibility that Mr. de la Cruz Espinoza may also be released prior to the resolution of this case, the court deems it prudent to explain why the mootness of proposed class members’ claims does not prevent courts from reaching the merits in a case involving “inherently transitory claims” such as these.
In Cty. of Riverside v. McLaughlin, which involved a class action constitutional challenge
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by pretrial detainees, the Supreme Court held “[t]hat the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.” See 500 U.S. 44, 52 (1991). The McLaughlin Court observed that “some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires,” id. at 52 (citations and brackets omitted), and that “[i]n such cases, the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution,” id.
Here, the claims alleged in the Complaint fall squarely in the category of “inherently transitory” claims. “The ‘inherently transitory’ rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013) (citation omitted). That is this case. The lead plaintiffs and members of the proposed class are (or were) subject to § 1226(a) detention, the length of which “cannot be ascertained at the outset, and [] may be ended at any time[.]” See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980) (quoting Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975), and describing claims by pretrial detainees challenging conditions of detention as those that are “inherently transitory”); see also Brito, 395 F. Supp. 3d at 146 (§ 1226(a) detainees’ claims that their bond hearings were constitutionally and statutorily inadequate “satisfie[ed] the inherently transitory exception”).
Accordingly, even if all three of the lead plaintiffs’ claims were moot here, the court could proceed to the merits pursuant to the “relation back” doctrine. The court need not decide at this time whether Mr. Dubon Miranda and Mr. Thompson remain proper class representatives, as no class has yet been certified. See Geraghty, 445 U.S. at 407.
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II. Jurisdiction The court next considers the defendants’ argument that the court lacks jurisdiction to
consider the lead plaintiffs’ claims. The defendants argue that (1) the lead plaintiffs were required to exhaust their administrative remedies before pursuing relief in federal court, and (2) 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) bar federal court jurisdiction over the claims. For the reasons explained below, both arguments fail, and the court may exercise jurisdiction here.
A. Administrative exhaustion Federal regulations provide that noncitizens subject to § 1226(a) detention may file with the BIA “[a]n appeal relating to bond and custody determinations.” See 8 C.F.R. § 1236.1(d)(3); see also 8 C.F.R. § 1003.1(b)(7). But administrative exhaustion is required only for challenges to final orders of removal. See Jarpa v. Mumford, 211 F. Supp. 3d 706, 710 (D. Md. 2016) (citing 8 U.S.C. § 1251(d)(1)). Where exhaustion is not required by statute, “sound judicial discretion must govern the Court’s decision of whether to exercise jurisdiction absent exhaustion.” Id. at 710–11 (citing Welch v. Reno, 101 F. Supp. 2d 347, 351 (D. Md. 2000) (further citation omitted)); see also Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (“In the habeas context, exhaustion is a prudential rather than jurisdictional requirement”). “In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion.” McCarthy v. Madigan, 503 U.S. 140, 146 (1992). The Supreme Court has outlined “at least three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion”: (1) where “a particular plaintiff may suffer irreparable harm if unable to secure immediate judicial consideration of his claim”; (2) where “an administrative remedy may be inadequate because of
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some doubt as to whether the agency was empowered to grant effective relief”; and (3) where “an administrative remedy may be inadequate [because] the administrative body is shown to be biased or has otherwise predetermined the issue before it.” Id. at 146–47 (citations and quotation marks omitted).
Here, the claims raised in the Complaint fall into the first and third McCarthy circumstances. As to the first circumstance, the lead plaintiffs’ and proposed class members’ continued deprivation of liberty, without the bond hearing procedures they claim are constitutionally and statutorily required, “constitutes the kind of irreparable harm which forgives exhaustion.” See Jarpa, 211 F. Supp. 3d at 711 (citation omitted). As the Jarpa court reasoned, “if . . . continued detention is indeed unconstitutional, every subsequent day of detention without remedy visits harm anew. Further, because the harm is loss of liberty, it is quintessentially the kind of harm that cannot be undone or totally remedied through monetary relief.” Id. (citation omitted). As to the third circumstance, it is clear here that the administrative remedy may be inadequate, as the BIA appears to have predetermined the issues presented in the Complaint. As noted above, the BIA has consistently held that “[t]he burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond,” see Guerra, 24 I. & N. Dec. at 40; see also In Re Adeniji, 22 I. & N. Dec. 1102, 1102 (B.I.A. 1999), and, in several unpublished opinions, has stated that an IJ need not consider a noncitizen’s ability to pay a set bond amount, see Castillo-Cajura, 2009 WL 3063742, at *1; In re Sandoval-Gomez, 2008 WL 5477710, at *1 (B.I.A. Dec. 15, 2008).
Before exercising its discretion to excuse exhaustion, however, the court must decide whether the “‘twin purposes of protecting administrative agency authority and promoting judicial efficiency’” are outweighed by the lead plaintiffs’ and proposed class members’ interest in
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prompt resolution of their claims. See Jarpa, 211 F. Supp. 3d at 712 (quoting Volvo GM Heavy Truck Corp. v. U.S. Dep’t of Labor, 118 F.3d 205, 208–09 (4th Cir. 1997)). Here, the court finds that the lead plaintiffs’ claims do not present a threat to administrative agency authority or judicial efficiency. Even if the court were to grant all of the lead plaintiffs’ claims, the ultimate decision of whether to detain or release the members of the proposed class would remain within the executive branch. And deciding the legal and constitutional questions raised in the Complaint here may, in fact, promote judicial efficiency, as a decision on the merits of these claims may prevent future litigation on these same issues. Accordingly, the court will exercise its discretion to excuse administrative exhaustion here.
B. 8 U.S.C. §§ 1226(e), 1252(a)(2)(B) Section 1226(e), which governs judicial review of action taken pursuant to § 1226(a), provides that: The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. 8 U.S.C. § 1226(e). A district court thus cannot review custody determinations that an IJ, pursuant to her delegated authority, has made regarding a noncitizen’s detention or release. See Jennings, 138 S. Ct. at 841 (citation omitted). Section 1226(e), however, does not preclude challenges to “the Government’s detention authority under the ‘statutory framework’ as a whole,” or challenges to the “constitutionality of the entire statutory scheme under the Fifth Amendment.” Id. Section 1252(a)(2)(B) similarly provides, in relevant part, that: Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is
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specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 8 U.S.C. § 1252(a)(2)(B)(ii). While this provision, like § 1226(e), precludes judicial review of discretionary action by an IJ, “[i]t does not limit habeas jurisdiction over questions of law.” See Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (citation and quotation marks omitted); see also Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (§ 1252(a)(2)(B)(ii) does not bar challenges to the extent of the Attorney General’s authority to detain a noncitizen, as “the extent of that authority is not a matter of discretion”). The defendants characterize the lead plaintiffs’ claims as challenges to the IJ’s weighing of evidence and factual findings and argue that, accordingly, §§ 1226(e) and 1252(a)(2)(B) strip this court of jurisdiction to hear the claims. (Opp’n at 15). But the lead plaintiffs’ claims are not, in fact, challenges to the IJ’s weighing of evidence and factual findings. They are challenges to the procedures used during § 1226(a) bond hearings, which, argue the lead plaintiffs, violate due process and the INA. These claims are outside the scope of the jurisdiction-stripping provisions of §§ 1226(e) and 1252(a)(2)(B). See Hernandez, 872 F.3d at 988, (claims that the “discretionary process itself was constitutionally flawed” are not barred by §§ 1226(e) and 1252(a)(2)(B) (citation omitted)); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 688–89 (D. Mass. 2018) (section 1226(e) does not bar constitutional challenges to the immigration bail system); Gordon v. Shanahan, No. 15 CV. 261, 2015 WL 1176706, at *2 (S.D.N.Y. Mar. 13, 2015) (section 1226(e) does not deprive the court of jurisdiction over constitutional and statutory challenges to detention).7 Accordingly, the court has jurisdiction over the lead plaintiffs’ claims and will proceed to the merits of their motion.
7 Unpublished opinions are cited for the persuasiveness of their reasoning, not for any precedential value.
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III. TRO or preliminary injunction A party seeking a preliminary injunction must establish: (1) the likelihood of success on
the merits; (2) the likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in favor of issuing the preliminary injunction; and (4) that the injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Where, as here, a requested injunction is mandatory rather than prohibitory,8 the party seeking the injunction must also demonstrate that “a mandatory preliminary injunction [is] necessary both to protect against irreparable harm in a deteriorating circumstance created by the defendant and to preserve the court’s ability to enter ultimate relief on the merits of the same kind.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003), abrogated on other grounds by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
“The standard for a temporary restraining order is the same as a preliminary injunction.” Maages Auditorium v. Prince George’s Cty., Md., 4 F. Supp. 3d 752, 760 (D. Md. 2014), aff’d, 681 F. App’x 256 (4th Cir. 2017); see Fed. R. Civ. P. 65. Because the lead plaintiffs seek injunctive relief lasting beyond the fourteen-day limit for TROs, and the defendants have had an opportunity to oppose the requested relief, see Fed. R. Civ. P. 65(b)(2), (a)(1), the court will construe the lead plaintiffs’ motion as one for a preliminary injunction.
For the reasons explained below, the lead plaintiffs have established the necessary elements to justify a mandatory preliminary injunction.
8 “Whereas mandatory injunctions alter the status quo, prohibitory injunctions ‘aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.’” League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (quoting Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013)).
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A. Likelihood of success on the merits i. Due process claim: burden of proof
The lead plaintiffs claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the government bears the burden of proving, by clear and convincing evidence, dangerousness or risk of flight. As explained above, neither the INA nor its implementing regulations speak to the burden of proof at § 1226(a) bond hearings, and the BIA has held that the burden lies with the noncitizen. See Guerra, 24 I. & N. Dec. at 37, 40. But, as the lead plaintiffs point out, when faced with challenges to the constitutionality of these hearings, district courts in the First, Second, Ninth, and Tenth Circuits have concluded that due process requires that the government bear the burden of justifying a noncitizen’s § 1226(a) detention. See, e.g., Singh v. Barr, 400 F. Supp. 3d 1005, 1017 (S.D. Cal. 2019) (“[T]he Fifth Amendment’s Due Process Clause requires the Government to bear the burden of proving . . . that continued detention is justified at a § 1226(a) bond redetermination hearing.”); Diaz-Ceja v. McAleenan, No. 19-CV-00824-NYW, 2019 WL 2774211, at *11 (D. Colo. July 2, 2019) (same); Darko v. Sessions, 342 F. Supp. 3d 429, 436 (S.D.N.Y. 2018) (same); Pensamiento, 315 F. Supp. 3d at 692 (same). While jurisdictions vary on the standard of proof required, compare, e.g., Darko, 342 F. Supp. 3d at 436 (clear and convincing standard) with Pensamiento, 315 F. Supp. 3d at 693 (“to the satisfaction of the IJ” standard), the “consensus view” is that due process requires that the burden lie with the government, see Darko, 342 F. Supp. 3d at 435 (collecting cases).
The defendants concede that “a growing chorus of district courts” have concluded that due process requires that the government bear the burden of proof at § 1226(a) bond hearings. (Opp’n at 22). But the defendants also point out that some courts to consider the issue have
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concluded otherwise. In Borbot v. Warden Hudson Cty. Corr. Facility, the Third Circuit analyzed a § 1226(a) detainee’s claim that due process entitled him to a second bond hearing where “[t]he duration of [] detention [was] the sole basis for [the] due process challenge.” 906 F.3d 274, 276 (3d Cir. 2018). The Borbot court noted that the detainee “[did] not challenge the adequacy of his initial bond hearing,” id. at 276–77, and ultimately held that it “need not decide when, if ever, the Due Process Clause might entitle an alien detained under § 1226(a) to a new bond hearing,” id. at 280. But, in analyzing the detainee’s claims, the Borbot court stated that it “perceive[d] no problem” with requiring that § 1226(a) detainees bear the burden of proof at bond hearings. Id. at 279. Several district courts in the Third Circuit have subsequently concluded that Borbot compels a finding that due process does not require that the government bear the burden of proof at § 1226(a) bond hearings. See, e.g., Gomez v. Barr, No. 1:19-CV01818, 2020 WL 1504735, at *3 (M.D. Pa. Mar. 30, 2020) (collecting cases).
Based on its survey of the case law, the court is more persuaded by the reasoning of the district courts in the First, Second, Ninth, and Tenth Circuits. “Freedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690 (citation omitted). While detention pending removal is “a constitutionally valid aspect of the deportation process,” such detention must comport with due process. See Demore v. Kim, 538 U.S. 510, 523 (2003). Although the Supreme Court has not decided the proper allocation of the burden of proof in § 1226(a) bond hearings, it has held, in other civil commitment contexts, that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” See Addington v. Texas, 441 U.S. 418, 427 (1979)
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(addressing the standard of proof required for mental illness-based civil commitment) (emphasis added).
Application of the Mathews v. Eldridge balancing test lends further support to the lead plaintiffs’ contention that due process requires a bond hearing where the government bears the burden of proof. In Mathews, the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: (1) “the private interest that will be affected by the official action”; (2) “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 (3) “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. 319, 335 (1976). While the court acknowledges that requiring the government to bear the burden of proof at § 1226(a) hearings would impose additional costs on the government, those costs are likely outweighed by the noncitizen’s significant interest in freedom from restraint, and the fact that erroneous deprivations of liberty are less likely when the government, rather than the noncitizen, bears the burden of proof. (See Decl. of Former Immigration Judge Denise Noonan Slavin ¶ 6, ECF 1-8 (“On numerous occasions, pro se individuals appeared before me for custody hearings without understanding what was required to meet their burden of proof. . . . Pro se individuals were rarely prepared to present evidence at the first custody hearing[.]”))
With respect to the quantum of proof required at § 1226(a) bond hearings, the court notes that “the overwhelming majority of district courts have . . . held that, in bond hearings under § 1226(a), due process requires the government to bear the burden of justifying detention by clear and convincing evidence.” Hernandez-Lara v. Immigration & Customs Enf’t, Acting Dir., No.
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19-CV-394-LM, 2019 WL 3340697, at *3 (D.N.H. July 25, 2019) (collecting cases). As the Hernandez-Lara court reasoned, “[p]lacing the burden of proof on the government at a § 1226(a) hearing to show by clear and convincing evidence that the noncriminal alien should be detained pending completion of deportation proceedings is more faithful to Addington and other civil commitment cases,” id. at *6, “[b]ecause it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’—deprivation of liberty—is so significant,” id. (quoting Singh v. Holder, 638 F.3d 1196, 1203–04 (9th Cir. 2011)) (further citation omitted).
Moreover, on the quantum of proof question, the court finds instructive evolving jurisprudence on challenges to prolonged detention pursuant to 8 U.S.C. § 1226(c). As noted in note 2, supra, § 1226(c) mandates detention of noncitizens deemed deportable because of their convictions for certain crimes. See Jennings, 138 S. Ct. at 846. Although § 1226(c) “does not on its face limit the length of the detention it authorizes,” id., the Supreme Court has not foreclosed the possibility that unreasonably prolonged detention under § 1226(c) violates due process, id. at 851. Indeed, many courts have held that when § 1226(c) becomes unreasonably prolonged, a detainee must be afforded a bond hearing. See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018); Jarpa, 211 F. Supp. 3d at 717. Notably, courts in this district and elsewhere have ordered § 1226(c) bond hearings where the government bears the burden of justifying continued detention by clear and convincing evidence. See Duncan v. Kavanagh, --- F. Supp. 3d ----, 2020 WL 619173, at *10 (D. Md. Feb. 10, 2020); Reid, 390 F. Supp. 3d at 228; Portillo, 322 F. Supp. 3d at 709–10; Jarpa, 211 F. Supp. 3d at 721. As the Jarpa court explained, “against the backdrop of well-settled jurisprudence on the quantum and burden of proof required to pass constitutional muster in civil detention
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proceedings generally, it makes little sense to give Mr. Jarpa at this stage fewer procedural protections than those provided to” civil detainees in other contexts. See Jarpa, 211 F. Supp. 3d at 722 (citing United States v. Comstock, 627 F.3d 513 (4th Cir. 2010)).
In light of the above, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires § 1226(a) bond hearings where the government must bear the burden of proving dangerousness or risk of flight. As to the quantum of proof required at these hearings, the court is persuaded that requiring a clear and convincing standard is in line with the Supreme Court’s reasoning in Addington, as well as consistent with the bond hearings ordered in cases involving § 1226(c) detention.
ii. Due process claim: ability to pay and suitability for release on alternative conditions of release
The lead plaintiffs also claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the IJ considers the noncitizen’s ability to pay a set bond amount and her suitability for release on alternative conditions of supervision. The defendants counter that due process does not so require, and also asserts that at Mr. de la Cruz Espinoza’s bond hearing, the IJ did consider his ability to pay, (Opp’n at 26).
As an initial matter, the court considers whether the IJ at Mr. de la Cruz Espinoza’s bond hearing considered his ability to pay. According to the Complaint, there is no requirement that IJs in Baltimore Immigration Court consider an individual’s ability to pay when setting a bond amount. (Compl. ¶ 27 & n.8). The defendants assert that because Mr. de la Cruz Espinoza’s motion for bond included arguments about his financial situation, the IJ did, in fact, consider his ability to pay. (Opp’n at 26). The court is not persuaded. The fact that an argument was raised does not ipso facto mean it was considered. Neither the transcript of Mr. de la Cruz Espinoza’s bond hearing, (ECF 15-11), nor the IJ’s order of bond, (ECF 1-18), suggest that the IJ actually
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considered ability to pay. Accordingly, without clear evidence to the contrary, the court accepts the lead plaintiffs’ allegation that the IJ did not consider Mr. de la Cruz Espinoza’s ability to pay when setting bond.
The question remains whether due process requires that an IJ consider ability to pay and suitability for alternative conditions of release at a § 1226(a) bond hearing. As explained above, detention pending removal must comport with due process. See Demore, 538 U.S. at 523. Due process requires that detention “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.” See Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Federal regulations and BIA decisional law suggest that the purpose of § 1226(a) detention is to protect the public and to ensure the noncitizen’s appearance at future proceedings. See 8 C.F.R. §§ 1003.19, 1236.1; Guerra, 24 I. & N. Dec. at 38. But, the lead plaintiffs argue, when IJs are not required to consider ability to pay or alternative conditions of release, a noncitizen otherwise eligible for release may end up detained solely because of her financial circumstances.
Several courts to consider the question have concluded that § 1226(a) detention resulting from a prohibitively high bond amount is not reasonably related to the purposes of § 1226(a). In Hernandez v. Sessions, the Ninth Circuit held that “consideration of the detainees’ financial circumstances, as well as of possible alternative release conditions, [is] necessary to ensure that the conditions of their release will be reasonably related to the governmental interest in ensuring their appearance at future hearings[.]” See 872 F.3d at 990–91. While the Hernandez court did not explicitly conclude that a bond hearing without those considerations violates due process, see id. at 991 (“due process likely requires consideration of financial circumstances and alternative conditions of release” (emphasis added)), the court in Brito did reach that conclusion, see 415 F.
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Supp. 3d at 267. The Brito court held that, with respect to § 1226(a) bond hearings, “due process
requires an immigration court consider both an alien’s ability to pay in setting the bond amount
and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety
of the community and the alien’s future appearances.” Id. at 267. Relatedly, in Abdi v. Nielsen,
287 F. Supp. 3d 327 (W.D.N.Y. 2018), which involved noncitizens held in civil immigration detention pursuant to 8 U.S.C. § 1225(b),9 the court—relying on the Ninth Circuit’s reasoning in
Hernandez—held that “an IJ must consider ability to pay and alternative conditions of release in
setting bond for an individual detained under § 1225(b).” Id. at 338. To hold otherwise, the Abdi
court reasoned, would implicate “the due process concerns discussed in Hernandez, which are equally applicable to detentions pursuant to § 1225(b).”10
The court is persuaded by the reasoning of Hernandez, Brito, and Abdi. If an IJ does not
make a finding of dangerousness or substantial risk of flight requiring detention without bond (as
in Mr. de la Cruz Espinoza’s case), the only remaining purpose of § 1226(a) detention is to secure a noncitizen’s appearance at future proceeding.11 The set bond amount, then, must be
reasonably related to this purpose. But where a bond amount is set too high for an individual to
pay, she is effectively detained without bond due to her financial circumstances. It is axiomatic
that an individual may not be imprisoned “solely because of his lack of financial resources.” See
9 8 U.S.C. § 1225(b) authorizes indefinite, mandatory detention for certain classes of noncitizens. See Jennings, 138 S. Ct. at 842 (citing 8 U.S.C. §§ 1225(b)(1) and (b)(2)). 10 The court notes that both Hernandez and Abdi reference now-invalidated precedent in both the Ninth and Second Circuits requiring the government to provide civil immigration detainees periodic bond hearings every six months. See Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852; Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852. But Jennings, which was decided on statutory interpretation grounds, explicitly did not include a constitutional holding. See Jennings, 138 S. Ct. at 851 (“[W]e do not reach th[e] [constitutional] arguments.”). And, as the Hernandez court noted, “the Supreme Court’s review of our holding . . . that noncitizens are entitled to certain unrelated additional procedural protections during the recurring bond hearings after prolonged detention does not affect our consideration of the lesser constitutional procedural protections sought at the initial bond hearings in this case.” 872 F.3d at 983 n.8. 11 The defendants offer no purpose for § 1226(a) detention beyond protecting the community and securing a noncitizen’s appearance at future proceedings.
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Bearden v. Georgia, 461 U.S. 660, 661–62, 665 (1983) (automatic revocation of probation for inability to pay a fine, without considering whether efforts had been made to pay the fine, violated due process and equal protection); cf. Tate v. Short, 401 U.S. 395, 398 (1971) (“The Constitution[’s equal protection clause] prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”). In the pretrial detention context, multiple Courts of Appeals have held that deprivation of the accused’s rights “to a greater extent than necessary to assure appearance at trial and security of the jail . . . would be inherently punitive and run afoul of due process requirements.” See Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)) (quotation marks omitted); accord ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018); see also Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976); accord Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997).
There is no suggestion that the IJs in Baltimore Immigration Court impose prohibitively high bond amounts with the intent of denying release to noncitizens who do not have the means to pay. But without consideration of a § 1226(a) detainee’s ability to pay, where a noncitizen remains detained due to her financial circumstances, the purpose of her detention—the lodestar of the due process analysis—becomes less clear. As the Ninth Circuit explained,
Setting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings. . . . [It is a] common-sense proposition that when the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual’s financial circumstances and alternative ways of accomplishing its purpose. Hernandez, 872 F.3d at 991. The defendants assert that an IJ need not consider a noncitizen’s ability to pay a set bond
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amount because it had a “reasonable basis to enact a statute that grants the Executive branch discretion to set bonds to prevent individuals, whose ‘continuing presence in the country is in violation of the immigration laws,’ from failing to appear,” and that § 1226(a) passes muster under rational basis review. (Opp’n at 25–26 (quoting Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 491 (1999)). But the appropriate analysis for a procedural due process challenge is the Mathews balancing test, not rational basis review, which is used to analyze equal protection claims, see, e.g., Schweiker v. Wilson, 450 U.S. 221, 234–35 (1981), and substantive due process claims, see, e.g., Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). And, in applying the Mathews test, the court agrees with the Ninth Circuit’s conclusion that “the government’s refusal to require consideration of financial circumstances is impermissible under the Mathews test because the minimal costs to the government of [] a requirement [that ICE and IJs consider financial circumstances and alternative conditions of release] are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty.” See Hernandez, 872 F.3d at 993.
Accordingly, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires a § 1226(a) bond hearing where the IJ considers a noncitizen’s ability to pay a set bond amount and the noncitizen’s suitability for alternative conditions of release.
iii. INA claim The lead plaintiffs’ final claim is that “Section 1226(a), as correctly interpreted, requires that the bond or other conditions of release for detained individuals be reasonably calculated to secure the individual’s appearance at future proceedings,” and that “[a] reasonable bond or reasonable conditions of release cannot be determined without adequately considering detained
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individuals’ financial circumstances and whether nonmonetary conditions of release would sufficiently mitigate flight risk.” (Compl. ¶¶ 74–75). The relief sought on this claim, however, is identical to that sought on the due process claim discussed in Part III.A.ii, supra: a preliminary injunction requiring a bond hearing where an IJ considers a noncitizen’s ability to pay a set bond amount and the suitability of alternative conditions of release. As the court has already found a likelihood of success on the merits of that claim, the court need not address the INA claim in order to grant the relief sought. Accordingly, the court will not at this time discuss the merits of this claim.
B. Irreparable harm Having found that the lead plaintiffs have shown a likelihood of success on the merits of their constitutional claims, the court turns to the second requirement for obtaining a preliminary injunction: a showing of irreparable harm. The deprivation of a constitutional right, “for even minimal periods of time, unquestionably constitutes irreparable injury.” See Elrod v. Burns, 427 U.S. 347, 373 (1976); accord Hernandez, 872 F.3d at 994. As the Ninth Circuit explained in Hernandez, it follows inexorably from our conclusion that the government’s current policies are likely unconstitutional—and thus that members of the plaintiff class will likely be deprived of their physical liberty unconstitutionally in the absence of the injunction—that Plaintiffs have also carried their burden as to irreparable harm. Hernandez, 872 F.3d at 995. The court agrees. The lead plaintiffs also argue that the potential for irreparable harm has “escalated precipitously” in light of the COVID-19 pandemic. (Mot. at 29). COVID-19, the infectious respiratory disease caused by the novel coronavirus, poses particular risks to those in correctional and detention facilities. The Centers for Disease Control (“CDC”) has warned that once introduced, COVID-19 may spread more quickly in detention facilities relative to other
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environments. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html; see also Coreas v. Bounds, --- F.3d ---- 2020 WL 1663133, at *2 (D. Md. Apr. 3, 2020) (“Prisons, jails, and detention centers are especially vulnerable to outbreaks of COVID-19.”). This is due in part to the close living arrangements of detainees, which impede social distancing efforts, and also because many facilities limit access to soap and paper towels, and prohibit alcohol-based hand sanitizers. Interim Guidance, CDC, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html; see also Coreas, 2020 WL 1663133, at *2; (Decl. of Dr. Jaime Meyer ¶¶ 9, 11, 29, 33, ECF 1-26). Moreover, there is an increased risk of developing serious illness related to COVID-19 for individuals with certain underlying health conditions. See Coronavirus Disease 2019 (COVID-19): People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-at-higher-risk.html. While the lead plaintiffs do not allege that they have underlying conditions placing them at higher risk, this may not be true of other members of the proposed class. (See Dr. Meyer Decl. ¶ 15 (“[P]eople in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.”). Moreover, at least one court to consider the question has found that the “increased likelihood of severe illness and death [from COVID-19] if a preliminary injunction is not entered” constitutes irreparable harm. See Fraihat v. U.S. Immigration & Customs Enf’t, --- F. Supp. 3d ----, 2020 WL 1932570, at *1, 27 (C.D. Cal. Apr. 20, 2020) (where proposed class members were detainees with a range of serious health conditions).
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Accordingly, the lead plaintiffs have shown irreparable harm on the basis of their continued detention pursuant to a bond hearing that was likely constitutionally deficient. While the court need not find that the COVID-19 pandemic presents an independent basis for irreparable harm, the court considers the proposed class members’ heightened risk of contracting COVID-19 while detained as a factor strengthening their showing.
C. Balance of the equities and the public interest Turning to the third and fourth requirements for obtaining a preliminary injunction, the court notes that the balancing of the harm and the public interest merge when the government is the opposing party. See Nken v. Holder, 556 U.S. 418, 435 (2009). Here, it is clear that these factors weigh in favor of granting injunctive relief. Despite the defendants’ assertion to the contrary, the granting of a preliminary injunction does not seriously infringe on the government’s interest in enforcing its immigration laws. (See Opp’n at 29). Rather, the requested injunction would simply require the government to provide the proposed class members with new bond hearings where additional procedures are observed. While the court acknowledges this would impose costs on the government, “[f]aced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” See Hernandez, 872 F.3d at 996 (citation and quotation marks omitted). Moreover, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (further citation omitted). D. Sufficiently demanding circumstances As noted above, because the lead plaintiffs seek a mandatory rather than prohibitory
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preliminary injunction, they must also establish that “a mandatory preliminary injunction [is] necessary both to protect against irreparable harm in a deteriorating circumstance created by the defendant and to preserve the court’s ability to enter ultimate relief on the merits of the same kind.” In re Microsoft, 333 F.3d at 526. This heightened standard is necessary because “[m]andatory preliminary injunctions generally do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief.” Id. (citation, quotation marks, and alterations omitted). In other words, “the circumstances [must be] sufficiently demanding for the award of mandatory relief.” E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808, 830 (4th Cir. 2004).
Here, the lead plaintiffs have demonstrated that the exigencies of the situation demand the mandatory preliminary injunction sought. As explained above, the lead plaintiffs have shown that they are likely to succeed on the merits of their constitutional claims. Consequently, their continued detention pursuant to bond hearings that likely do not comport with due process “unquestionably constitutes irreparable injury.” See Elrod, 427 U.S. at 373; see also Brito, 415 F. Supp. 3d at 270 (noting that loss of liberty is a “severe form of irreparable injury” (citation omitted)). In Sage, which involved a gas company’s request for a mandatory preliminary injunction to obtain immediate possession of property to build a gas pipeline, the Fourth Circuit found that the heightened standard for seeking a mandatory preliminary injunction was satisfied where prompt relief was necessary to serve important public interests “in good time.” Sage, 361 F.3d at 818, 830. In further justifying its conclusion that a mandatory preliminary injunction was appropriate, the Fourth Circuit stated that “without this mandatory relief, [the gas company] would face other irreparable harm such as increased construction costs and losses from its breach of gas supply contracts.” Id. Here, the public interest is similarly served by the award of prompt
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relief, see supra Part III.C, and the “other irreparable harm” that the lead plaintiffs and members of the proposed class face—namely, the heightened risk of contracting COVID-19—is significantly more serious than the potential monetary losses in Sage. Cf. Coreas, 2020 WL 1663133, at *13 (“[I]n the event that a detainee or staff member were found to have COVID-19, . . . there would be a high likelihood of irreparable health consequences [for petitioners with underlying health conditions] that could not be alleviated without release.”). Accordingly, the court finds that the circumstances here are “sufficiently demanding” to justify the imposition of a mandatory preliminary injunction. See Sage, 361 F.3d at 830. IV. Scope of relief
Having found that the imposition of a preliminary injunction is warranted here, the only question remaining is the scope of injunctive relief. “[C]ourts may enter class-wide injunctive relief before certification of a class.” J.O.P. v. U.S. Dep’t of Homeland Sec., 409 F. Supp. 3d 367, 376 (D. Md. 2019) (citing Rodriguez v. Providence Community Corrections, 155 F. Supp. 3d 758, 766 (M.D. Tenn. 2015); Newberg on Class Actions § 4:30 (5th ed. 2013)). On behalf of themselves and the members of the proposed class, the lead plaintiffs seek an injunction requiring the Executive Office of Immigration Review (“EOIR”) to ensure that § 1226(a) detainees receive bond hearings at the Baltimore Immigration Court that comport with due process. (See ECF 15-18). The lead plaintiffs also ask the court, inter alia, to enjoin EOIR to provide each class member currently detained with a bond hearing complying with the above requirements within fourteen days. (Id.). The defendants do not mount any specific challenges to the scope of injunctive relief requested.
Based on the court’s finding that significant constitutional rights are at stake, and the risk of irreparable harm, the court will issue a class-wide preliminary injunction mandating that §
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1226(a) bond hearings implement procedures that adequately protect the due process rights of noncitizens. At these bond hearings, the government must bear the burden of justifying continued detention by clear and convincing evidence, and the IJ must consider the noncitizen’s ability to pay a set bond amount and suitability for release on alternative conditions. The court will order (1) that Mr. de la Cruz Espinoza receive a new bond hearing within 21 days, and (2) that future § 1226(a) bond hearings in this district comport with the above requirements. Moreover, the court will order the parties to confer within 21 days and develop a plan for promptly identifying and providing new bond hearings to § 1226(a) detainees currently held pursuant to hearings that did not comport with the above requirements. Additional details of the preliminary injunction will be articulated in an order issued concurrently with this memorandum.
CONCLUSION For the foregoing reasons, the court will grant the lead plaintiffs’ motion for a TRO and/or a preliminary injunction, (ECF 15), construed as a preliminary injunction. The court will order relief narrowly tailored to resolve the deficiencies in the Baltimore Immigration Court’s current § 1226(a) bond hearing procedures. A separate order follows, which will detail the obligations of the parties in fulfilling the mandates of the injunction.

5/29/20 _________________ Date

/S/ ______________________ Catherine C. Blake United States District Judge

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