U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:19−cv−01336−ALC

CLOSED,ECF

P.L. et al v. U.S. Immigration and Customs Enforcement et al Assigned to: Judge Andrew L. Carter, Jr Cause: 29:794 Rehabilitation Act of 1973
Plaintiff

Date Filed: 02/12/2019 Date Terminated: 06/24/2019 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

P.L. Individually and on Behalf of All Others Similarly Situated

represented by Brooke Menschel Brooklyn Defender Services 177 Livingston Street, 7th Floor Brooklyn, NY 11201 (718)−254−0700 Fax: (718)−254−0897 Email: bmenschel@bds.org ATTORNEY TO BE NOTICED

Jennifer Rolnick Borchetta The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−838−7878 Fax: 718−665−0100 Email: jennb@bronxdefenders.org ATTORNEY TO BE NOTICED

Jennifer Ann Williams The Legal Aid Society (Manhattan) 199 Water St. New York, NY 10038 (212)−577−7967 Fax: (646)−616−4925 Email: jwilliams@legal−aid.org ATTORNEY TO BE NOTICED

Jessica Nitsche Brooklyn Defender Services 177 Livingston Street, 7th Floor Brooklyn, NY 11201 347−592−2519 Email: jnitsche@bds.org ATTORNEY TO BE NOTICED

Johanna Beth Steinberg The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−508−3447 Fax: 718−838−7819 Email: johannas@bronxdefenders.org TERMINATED: 07/23/2019

Julie Ann Dona Legal Aid Society of New York 199 Water Street New York, NY 10038 (212)−577−3629 Email: jdona@legal−aid.org

Plaintiff
A.Q. Individually and on Behalf of All Others Similarly Situated

ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman The Bronx Defenders 360 East 161st Street Bronx, NY 10451 (347)−842−1335 Email: shakeerr@bronxdefenders.org TERMINATED: 09/03/2019
Sonia Marquez Brooklyn Defender Services 180 Livingston Street Brooklyn, NY 11201 646−971−2709 Fax: 347−214−9471 Email: smarquez@bds.org ATTORNEY TO BE NOTICED
Susan Reagan Gittes Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 (212)−909−6759 Fax: (212)−521−7758 Email: srgittes@debevoise.com ATTORNEY TO BE NOTICED
represented by Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/23/2019
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED

Plaintiff K.T. Individually and on Behalf of All Others Similarly Situated
Plaintiff R.F.J. Individually and on Behalf of All Others Similarly Situated

represented by Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/23/2019
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED
represented by Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Christopher Jean Bouchoux Wilmer Cutler Pickering Hale & Dorr LLP (NYC) 7 World Trade Center New York, NY 10007 212−230−8800 Fax: 212−230−8888 Email: Christopher.Bouchoux@wilmerhale.com ATTORNEY TO BE NOTICED
Jeffrey Andrew Dennhardt Wilmer Cutler Pickering Hale & Dorr LLP (NYC) 7 World Trade Center New York, NY 10007 (212)−295−6293 Email: jeffrey.dennhardt@wilmerhale.com ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address)

Plaintiff
A.R.B. Individually and on Behalf of All Others Similarly Situated

ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/23/2019
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Robert J. Gunther , Jr Wilmer Cutler Pickering Hale & Dorr LLP (NYC) 7 World Trade Center New York, NY 10007 (212)230−8830 Fax: (212)230−8888 Email: Robert.Gunther@wilmerhale.com ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED
William C. Kinder Morvillo Abramowitz Grand Iason & Anello PC 565 Fifth Avenue New York, NY 10017 212−880−9431 Email: will.kinder@wilmerhale.com TERMINATED: 08/01/2019
represented by Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Christopher Jean Bouchoux (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Andrew Dennhardt (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address)

Plaintiff
B.M.B. Individually and on Behalf of All Others Similarly Situated

ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/23/2019
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Robert J. Gunther , Jr (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED
William C. Kinder (See above for address) TERMINATED: 08/01/2019
represented by Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Christopher Jean Bouchoux (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Andrew Dennhardt (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg

Plaintiff
J.C. Individually and on Behalf of All Others Similarly Situated

(See above for address) TERMINATED: 07/23/2019
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Robert J. Gunther , Jr (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED
William C. Kinder (See above for address) TERMINATED: 08/01/2019
represented by Susan Reagan Gittes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Dana Rehnquist Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 (212)−909−6858 Email: drehnquist@debevoise.com ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/23/2019
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brooklyn Defender Services
Plaintiff Legal Aid Society

Pooja Ashok Boisture Hogan Lovells US LLP (NYC) 875 Third Avenue New York, NY 10022 (212)−918−3232 Fax: (212)−918−3100 Email: pboisture@debevoise.com ATTORNEY TO BE NOTICED
Samuel Rosh Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 212−909−6000 Email: sjrosh@debevoise.com ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
represented by Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Christopher Jean Bouchoux (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Andrew Dennhardt (See above for address) ATTORNEY TO BE NOTICED
Jessica Nitsche (See above for address) ATTORNEY TO BE NOTICED
Robert J. Gunther , Jr (See above for address) ATTORNEY TO BE NOTICED
Sonia Marquez (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED
William C. Kinder (See above for address) TERMINATED: 08/01/2019
represented by Susan Reagan Gittes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Bronx Defenders

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Dana Rehnquist (See above for address) ATTORNEY TO BE NOTICED
Jennifer Ann Williams (See above for address) ATTORNEY TO BE NOTICED
Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Pooja Ashok Boisture (See above for address) ATTORNEY TO BE NOTICED
Samuel Rosh (See above for address) ATTORNEY TO BE NOTICED
represented by Shakeer Mostafa Rahman (See above for address) TERMINATED: 09/03/2019 LEAD ATTORNEY
Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
Christopher Jean Bouchoux (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Andrew Dennhardt (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/23/2019
Robert J. Gunther , Jr (See above for address) ATTORNEY TO BE NOTICED
Susan Reagan Gittes (See above for address) ATTORNEY TO BE NOTICED
William C. Kinder (See above for address) TERMINATED: 08/01/2019

V. Defendant U.S. Immigration and Customs Enforcement
Defendant U.S. Department of Homeland Security
Defendant United States Department of Justice
Defendant Executive Office for Immigration Review
Defendant Deputy Director Ronald Vitiello Deputy Director and Acting Director of ICE, in official capacity

represented by Stephen Seungkun Cha−Kim United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 212−637−2768 Fax: 212−637−2702 Email: Stephen.Cha−Kim@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar United States Attorney's Office SDNY 86 Chambers St. New York, NY 10007 212−637−2715 Fax: 212−637−2717 Email: steven.kochevar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY

Defendant Secretary Kirstjen Nielsen Secretary of Homeland Security, in official capacity
Defendant Matthew G. Whitaker Acting United States Attorney General, in official capacity
Defendant Director Matthew T. Albence Executive Associate Director of ICE Enforcement Removal Operations, in official capacity
Defendant Director Thomas R. Decker Director of New York Field Office of ICE, in official capacity
Defendant Deputy Director William P. Joyce Deputy Director of New York Field Office of ICE, in official capacity

ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Director James McHenry Director of Executive Office for Immigration Review, in official capacity
Defendant Daniel J. Daugherty Assistant Chief Immigration Judge, in official capacity
Amicus Center for Constitutional Rights
Amicus Central American Legal Assistance
Amicus Immigrant Defense Project
Amicus New York Immigration Coalition
Amicus New Sanctuary Coalition

represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Seungkun Cha−Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Akiva Shapiro Gibson, Dunn & Crutcher, LLP 200 Park Avenue New York, NY 10166 (212) 351−3830 Fax: (212) 351−4035 Email: ashapiro@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Akiva Shapiro (See above for address) ATTORNEY TO BE NOTICED
represented by Akiva Shapiro (See above for address) ATTORNEY TO BE NOTICED
represented by Akiva Shapiro (See above for address) ATTORNEY TO BE NOTICED
represented by Akiva Shapiro (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/12/2019

# Docket Text
1 ORDER − TO BE FILED UNDER SEAL: COMPLAINT; OTHER DOCUMENTS/EXHIBITS (Signed by Judge Edgardo Ramos on 2/12/2019) (pne) (Entered: 02/13/2019)

02/12/2019
02/12/2019 02/12/2019
02/12/2019 02/12/2019 02/13/2019
02/14/2019 02/14/2019 02/14/2019 02/14/2019 02/14/2019 02/14/2019 02/14/2019 02/14/2019 02/14/2019 02/15/2019 02/15/2019

2 COMPLAINT against Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker. (Filing Fee $ 400.00, Receipt Number 465401228743)Document filed by J.C., A.Q., P.L., B.M.B., K.T., Legal Aid Society, Brooklyn Defender Services, R.F.J., Bronx Defenders, A.R.B..(pne) (jgo). (Entered: 02/13/2019)
3 CIVIL COVER SHEET filed. (pne) (jgo). (Entered: 02/13/2019)
Magistrate Judge Barbara C. Moses is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pne) (Entered: 02/13/2019)
Case Designated ECF. (pne) (Entered: 02/13/2019)
4 SEALED DOCUMENT placed in vault.(mhe) (Entered: 02/13/2019)
5 ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO FILE COMPLAINT AND ACCOMPANYING PAPERS UNDER SEAL AND MOTION FOR LEAVE TO PROCEED UNDER PSEUDONYMS, IT IS HEREBY ORDERED THAT: Plaintiffs' Ex Parte Application to File Complaint and Accompanying Papers Under Seal and Motion for Leave to Proceed Under Pseudonyms is GRANTED. Versions of the Complaint, Civil Cover Sheet, and Plaintiffs' Ex Parte Application to File Complaint and Accompanying Papers Under Seal and Motion for Leave to Proceed Under Pseudonyms containing the full names of the Representative Plaintiffs shall be placed under seal until such time as the Court may order them unsealed, as further set forth in this Order. (Signed by (Judge Edgardo Ramos) Part One on 2/12/2019) (kv) (Entered: 02/13/2019)
6 NOTICE OF APPEARANCE by Robert J. Gunther, Jr on behalf of A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/14/2019)
7 NOTICE OF APPEARANCE by Christopher Jean Bouchoux on behalf of A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Bouchoux, Christopher) (Entered: 02/14/2019)
8 NOTICE OF APPEARANCE by Jeffrey Andrew Dennhardt on behalf of A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Dennhardt, Jeffrey) (Entered: 02/14/2019)
9 NOTICE OF APPEARANCE by William Clark Kinder on behalf of A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Kinder, William) (Entered: 02/14/2019)
10 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Brooklyn Defender Services.(Gunther, Robert) (Entered: 02/14/2019)
11 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Bronx Defenders.(Gunther, Robert) (Entered: 02/14/2019)
12 NOTICE OF APPEARANCE by Susan Reagan Gittes on behalf of J.C., Legal Aid Society. (Gittes, Susan) (Entered: 02/14/2019)
13 NOTICE OF APPEARANCE by Pooja Ashok Boisture on behalf of J.C., Legal Aid Society. (Boisture, Pooja) (Entered: 02/14/2019)
14 NOTICE OF APPEARANCE by Dana Rehnquist on behalf of J.C., Legal Aid Society. (Rehnquist, Dana) (Entered: 02/14/2019)
15 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Legal Aid Society.(Gittes, Susan) (Entered: 02/15/2019)
16 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of A.Q., A.R.B., B.M.B., Bronx Defenders, J.C., K.T., P.L., R.F.J.. (Borchetta, Jennifer)

02/15/2019 02/15/2019 02/15/2019
02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019

(Entered: 02/15/2019)
17 MOTION to Certify Class . Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J..(Gunther, Robert) (Entered: 02/15/2019)
18 MEMORANDUM OF LAW in Support re: 17 MOTION to Certify Class . . Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
19 DECLARATION of William C. Kinder in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Attachments: # 1 Exhibit 1 − USDOJ, Executive Office of Immigration Review's Statistics Yearbook: Fiscal Year 2017, # 2 Exhibit 2 − "Immigration Court Backlog Jumps While Case Processing Slows" June 8, 2018, # 3 Exhibit 3 − Joyce Letter to Gunther, Nov. 7 2018, # 4 Exhibit 4 − Decker Letter to Gunther, Nov. 30 2018, # 5 Exhibit 5 − ACLU Report)(Gunther, Robert) (Entered: 02/15/2019)
20 DECLARATION of Robert J. Gunther, Jr. in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
21 DECLARATION of Susan Reagan Gittes in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
22 DECLARATION of Andrea Saenz in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
23 DECLARATION of Brooke Menschel in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
24 DECLARATION of Jenn Rolnick Borchetta in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
25 DECLARATION of Julie Dona in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
26 DECLARATION of A.Q. in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
27 DECLARATION of A.R.B in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
28 DECLARATION of B.M.B in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
29 DECLARATION of J.C. in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
30 DECLARATION of K.T. in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
31 DECLARATION of P.L. in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)
32 DECLARATION of R.F.J in Support re: 17 MOTION to Certify Class .. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 02/15/2019)

02/15/2019 02/19/2019 02/20/2019 02/25/2019
02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019 02/26/2019

33 PROPOSED ORDER. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. Related Document Number: [ 17 ]. (Gunther, Robert) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 02/15/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 33 Proposed Order was reviewed and approved as to form. (dt) (Entered: 02/19/2019)
34 NOTICE OF APPEARANCE by Shakeer Mostafa Rahman on behalf of A.Q., A.R.B., B.M.B., Bronx Defenders, J.C., K.T., P.L., R.F.J.. (Rahman, Shakeer) (Entered: 02/20/2019)
35 CONSENT LETTER MOTION for Extension of Time to File Response/Reply to Motion for Class Certification addressed to Judge Andrew L. Carter, Jr. from Stephen Cha−Kim dated 02/25/2019. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Cha−Kim, Stephen) (Entered: 02/25/2019)
36 MOTION for Preliminary Injunction . Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J..(Gittes, Susan) (Entered: 02/26/2019)
37 MEMORANDUM OF LAW in Support re: 36 MOTION for Preliminary Injunction . . Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
38 PROPOSED ORDER. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. Related Document Number: 36 . (Gittes, Susan) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 02/26/2019)
39 DECLARATION of P.L. in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
40 DECLARATION of A.Q. in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
41 DECLARATION of K.T. in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
42 DECLARATION of R.F.J. in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
43 DECLARATION of A.R.B. in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
44 DECLARATION of B.M.B. in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
45 DECLARATION of BDS in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)

02/26/2019 02/26/2019 02/26/2019
02/27/2019 02/27/2019 02/27/2019 03/01/2019 03/05/2019
03/06/2019 03/07/2019
03/08/2019 03/11/2019

46 DECLARATION of Sarah Deri Oshiro in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
47 DECLARATION of LEENA KHANDWALA in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gittes, Susan) (Entered: 02/26/2019)
48 DECLARATION of POOJA A. BOISTURE in Support re: 36 MOTION for Preliminary Injunction .. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Attachments: # 1 Exhibit 1) EOIR Report, # 2 Exhibit 2) GAO Report, # 3 Errata 3) 9/27/18 Letter from Decker, # 4 Exhibit 4) 11/7/18 Letter from Joyce, # 5 Exhibit 5) 11/30/18 Letter from Decker, # 6 Exhibit 6) 12/21/18 Letter from Decker, # 7 Exhibit 7) AP NEWS ARTICLE, # 8 Exhibit 8) Law360 Article, # 9 Exhibit 9) 12/7/18 Email from Joyce, # 10 Exhibit 10) 1/24/19 email from Daugherty, # 11 Exhibit 11) 2/5/19 email from Daugherty, # 12 Exhibit 12) Vera Institute of Justice Report)(Boisture, Pooja) (Entered: 02/26/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 38 Proposed Order was reviewed and approved as to form. (km) (Entered: 02/27/2019)
49 ORDER granting 35 Letter Motion for Extension of Time to File Response/Reply re 35 CONSENT LETTER MOTION for Extension of Time to File Response/Reply to Motion for Class Certification addressed to Judge Andrew L. Carter, Jr. from Stephen Cha−Kim dated 02/25/2019. SO ORDERED. Responses due by 4/5/2019. (Signed by Judge Andrew L. Carter, Jr on 2/27/2019) (rj) (Entered: 02/27/2019)
50 ORDER: The Court is in receipt of Plaintiffs' Motion for a Preliminary Injunction. ECF No. 36. Defendants opposition is due March 11, 2019. Plaintiff's reply, if any, is due by March 18, 2019. SO ORDERED. (Set Deadlines/Hearing as to 36 MOTION for Preliminary Injunction. Responses due by 3/11/2019, Replies due by 3/18/2019.) (Signed by Judge Andrew L. Carter, Jr on 2/27/2019) (ne) (Entered: 02/27/2019)
51 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of A.Q., A.R.B., B.M.B., Bronx Defenders, J.C., K.T., P.L., R.F.J.. (Steinberg, Johanna) (Entered: 03/01/2019)
52 LETTER MOTION for Extension of Time to File Response/Reply to Motion for Preliminary Injunction addressed to Judge Andrew L. Carter, Jr. from Stephen Cha−Kim dated 3/5/2019. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Cha−Kim, Stephen) (Entered: 03/05/2019)
53 NOTICE OF APPEARANCE by Julie Ann Dona on behalf of A.Q., A.R.B., B.M.B., J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Dona, Julie) (Entered: 03/06/2019)
54 LETTER RESPONSE to Motion addressed to Judge Andrew L. Carter, Jr. from Brooke Menschel dated March 7, 2019 re: 52 LETTER MOTION for Extension of Time to File Response/Reply to Motion for Preliminary Injunction addressed to Judge Andrew L. Carter, Jr. from Stephen Cha−Kim dated 3/5/2019. . Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Menschel, Brooke) (Entered: 03/07/2019)
55 ORDER granting 52 Letter Motion for Extension of Time to File Response/Reply. The application is granted. Responses due by 4/5/2019. (Signed by Judge Andrew L. Carter, Jr on 3/8/2019) (mro) (Entered: 03/08/2019)
56 NOTICE OF APPEARANCE by Steven John Kochevar on behalf of Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker. (Kochevar, Steven)

03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/28/2019 03/29/2019

(Entered: 03/11/2019)
57 SUMMONS RETURNED EXECUTED. U.S. Immigration and Customs Enforcement served on 2/19/2019, answer due 3/12/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
58 SUMMONS RETURNED EXECUTED. U.S. Department of Homeland Security served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
59 SUMMONS RETURNED EXECUTED. United States Department of Justice served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
60 SUMMONS RETURNED EXECUTED. Executive Office for Immigration Review served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
61 SUMMONS RETURNED EXECUTED. Ronald Vitiello served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
62 SUMMONS RETURNED EXECUTED. Kirstjen Nielsen served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
63 SUMMONS RETURNED EXECUTED. Matthew G. Whitaker served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
64 SUMMONS RETURNED EXECUTED. Matthew T. Albence served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
65 SUMMONS RETURNED EXECUTED. Thomas R. Decker served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
66 SUMMONS RETURNED EXECUTED. William P. Joyce served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
67 SUMMONS RETURNED EXECUTED. James McHenry served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
68 SUMMONS RETURNED EXECUTED. Daniel J. Daugherty served on 2/14/2019, answer due 4/15/2019. Service was made by Mail. Document filed by J.C.; A.Q.; P.L.; B.M.B.; K.T.; Legal Aid Society; Brooklyn Defender Services; R.F.J.; Bronx Defenders; A.R.B.. (Dennhardt, Jeffrey) (Entered: 03/28/2019)
69 LETTER MOTION to File Amicus Brief addressed to Judge Andrew L. Carter, Jr. from Akiva Shapiro dated March 29, 2019. Document filed by Center for Constitutional Rights, Central American Legal Assistance, Immigrant Defense Project, New York Immigration Coalition, New Sanctuary Coalition. (Attachments: # 1 Exhibit A − Brief of Center for Constitutional Rights, et al. as Amici Curiae in support of Plaintiffs' Motion for Preliminary Injunctive Relief)(Shapiro, Akiva) (Entered:

04/02/2019 04/02/2019
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04/05/2019
04/05/2019
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03/29/2019)
70 NOTICE OF APPEARANCE by Sonia Marquez on behalf of A.Q., A.R.B., B.M.B., Brooklyn Defender Services, J.C., K.T., P.L., R.F.J.. (Marquez, Sonia) (Entered: 04/02/2019)
71 LETTER MOTION for Leave to File Excess Pages in Single Memorandum in Lieu of Two Separate Briefs addressed to Judge Andrew L. Carter, Jr. from Stephen Cha−Kim dated 4/2/2019. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Cha−Kim, Stephen) (Entered: 04/02/2019)
72 ORDER granting 69 Letter Motion to File Amicus Brief. The application is granted. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 4/2/2019) (kv) (Entered: 04/02/2019)
73 ORDER granting 71 Letter Motion for Leave to File Excess Pages. The application is granted. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 4/2/2019) (kv) (Entered: 04/02/2019)
74 NOTICE OF APPEARANCE by Samuel Rosh on behalf of J.C., Legal Aid Society. (Rosh, Samuel) (Entered: 04/03/2019)
75 BRIEF re: 72 Order on Motion to File Amicus Brief . Document filed by Center for Constitutional Rights, Central American Legal Assistance, Immigrant Defense Project, New Sanctuary Coalition, New York Immigration Coalition.(Shapiro, Akiva) (Entered: 04/03/2019)
76 NOTICE OF APPEARANCE by Jessica Nitsche on behalf of A.Q., A.R.B., B.M.B., Brooklyn Defender Services, J.C., K.T., P.L., R.F.J.. (Nitsche, Jessica) (Entered: 04/05/2019)
77 MEMORANDUM OF LAW in Opposition re: 17 MOTION to Certify Class ., 36 MOTION for Preliminary Injunction . . Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker. (Kochevar, Steven) (Entered: 04/05/2019)
78 DECLARATION of Deputy Field Office Director William P. Joyce in Opposition re: 17 MOTION to Certify Class ., 36 MOTION for Preliminary Injunction .. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker. (Kochevar, Steven) (Entered: 04/05/2019)
79 DECLARATION of Supervisory Detention and Deportation Officer Waveney P. Boyd in Opposition re: 17 MOTION to Certify Class ., 36 MOTION for Preliminary Injunction .. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker. (Kochevar, Steven) (Entered: 04/05/2019)
80 REPLY MEMORANDUM OF LAW in Support re: 17 MOTION to Certify Class ., 36 MOTION for Preliminary Injunction . . Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gunther, Robert) (Entered: 04/12/2019)
81 DECLARATION of William C. Kinder in Support re: 80 Reply Memorandum of Law in Support of Motion,. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Attachments: # 1 Exhibit 1 − Copy of a Transcript produced by Congressional Quarterly (Mar 6. 2019), # 2 Exhibit 2 − US Gov. Accountability Office Report − "Immigration

04/12/2019 04/12/2019 04/12/2019 04/12/2019 04/15/2019
04/15/2019
04/17/2019
04/17/2019 04/22/2019 05/02/2019

Detention: Opportunities Exist to Improve Cost Estimates" (April 2018), # 3 Exhibit 3 − Harvard Law Review Blog post)(Gunther, Robert) (Entered: 04/12/2019)
82 DECLARATION of S.V. in Support re: 80 Reply Memorandum of Law in Support of Motion,. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gunther, Robert) (Entered: 04/12/2019)
83 DECLARATION of LAS in Support re: 80 Reply Memorandum of Law in Support of Motion,. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gunther, Robert) (Entered: 04/12/2019)
84 DECLARATION of BxD in Support re: 80 Reply Memorandum of Law in Support of Motion,. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gunther, Robert) (Entered: 04/12/2019)
85 DECLARATION of BDS in Support re: 80 Reply Memorandum of Law in Support of Motion,. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Gunther, Robert) (Entered: 04/12/2019)
86 ORDER: The Court will hold Oral Argument in this case on April 23, 2019 at 2:00 p.m. The Parties are hereby ORDERED to appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, on the date and time specified above. SO ORDERED. Oral Argument set for 4/23/2019 at 02:00 PM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 4/15/2019) (rj) (Entered: 04/15/2019)
87 LETTER MOTION for Conference Regarding Motion to Dismiss Plaintiffs' Complaint addressed to Judge Andrew L. Carter, Jr. from Steven J. Kochevar dated 04/15/19. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Kochevar, Steven) (Entered: 04/15/2019)
88 ORDER, The Oral Argument currently scheduled for April 23, 2019 is hereby ADJOURNED. The Court will hold a Conference in this case on May 2, 2019 at 11:00 a.m. The Parties are hereby ORDERED to appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, on the date and time specified above. The Parties should be prepared to discuss all issues briefed, starting with the arguments pertaining to jurisdiction. In addition, the Court is in receipt of Defendants' Letter Motion. ECF No. 87. Plaintiffs are hereby ORDERED to respond to Defendants' Letter on or before April 22, 2019. SO ORDERED. (Status Conference set for 5/2/2019 at 11:00 AM in Courtroom 1306, 40 Centre Street, New York, NY 10007 before Judge Andrew L. Carter Jr..) (Signed by Judge Andrew L. Carter, Jr on 4/17/2019) (kv) (Entered: 04/17/2019)
89 NOTICE OF APPEARANCE by Jennifer Ann Williams on behalf of A.Q., A.R.B., B.M.B., J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Williams, Jennifer) (Entered: 04/17/2019)
90 LETTER RESPONSE to Motion addressed to Judge Andrew L. Carter, Jr. from Robert J. Gunther Jr. dated April 22, 2019 re: 87 LETTER MOTION for Conference Regarding Motion to Dismiss Plaintiffs' Complaint addressed to Judge Andrew L. Carter, Jr. from Steven J. Kochevar dated 04/15/19. . Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 04/22/2019)
91 ORDER granting 87 Letter Motion for Conference. The Court hereby schedules oral argument for May 29, 2019 at 2:00 p.m. The parties should appear in person at the Thurgood Marshall United States Courthouse, 40 Foley Square, in Courtroom 1306 on the date and time specified above. SO ORDERED. Oral Argument set for 5/29/2019 at 02:00 PM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge

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05/29/2019 06/10/2019
06/10/2019
06/12/2019

Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 5/2/2019) (rj) (Entered: 05/02/2019)
Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 5/2/2019. Brooke Menschel, Sonia Marquez, Shakeer Rahman, Julie Dona, Pooja Boisture and Christopher Bouchoux for Petitioner(s). Stephen Cha−Kim and Steven Kochevar for Respondent(s). See Docket No. 91. (Court Reporter: Vincent Bologna) (tdh) (Entered: 06/10/2019)
92 STATUS REPORT. / Joint Status Report Document filed by J.C., Legal Aid Society.(Boisture, Pooja) (Entered: 05/08/2019)
93 MEMO ENDORSEMENT on re: 92 Status Report filed by J.C., Legal Aid Society. ENDORSEMENT: SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/10/2019) (rj) (Entered: 05/10/2019)
94 LETTER addressed to Judge Andrew L. Carter, Jr. from Steven J. Kochevar dated 05/14/19 re: Letter Brief in Support of Defendants' Motion to Dismiss. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Kochevar, Steven) (Entered: 05/14/2019)
95 LETTER addressed to Judge Andrew L. Carter, Jr. from Brooke Menschel dated May 21, 2019 re: Defendants' Letter − ECF No. 94. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J..(Menschel, Brooke) (Entered: 05/21/2019)
96 LETTER addressed to Judge Andrew L. Carter, Jr. from Steven J. Kochevar dated May 23, 2019 re: Reply Letter Brief in Support of Defendants' Motion to Dismiss. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Kochevar, Steven) (Entered: 05/23/2019)
Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Oral Argument held on 5/29/2019. Jennifer Borchetta, Shakeer Rahman, Jonathan Steinberg, Julie Dona, Jennifer Williams, Samuel Rosh, Sonia Marquez, Brooke Menschel, Jessica Nitsche, Christopher Bouchoux, Jefferey Dennhard, William Kinder and Pooja Boisture for Petitioner(s). Stephen Cha−Kim and Stephen Kochevar for Respondent(s). (tdh) (Entered: 06/10/2019)
97 TRANSCRIPT of Proceedings re: CONFERENCE held on 5/29/2019 before Judge Andrew L. Carter, Jr.. Court Reporter/Transcriber: Lisa Smith, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019.(McGuirk, Kelly) (Entered: 06/10/2019)
98 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/29/19 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/10/2019)
99 LETTER addressed to Judge Andrew L. Carter, Jr. from Steven J. Kochevar dated June 12, 2019 re: Updating Responses to the Court's Inquires at Oral Argument. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Kochevar, Steven) (Entered: 06/12/2019)

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100 LETTER addressed to Judge Andrew L. Carter, Jr. from Brooke Menschel dated June 14, 2019 re: Response to Defendants' June 12, 2019 Letter. Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J.. (Attachments: # 1 Exhibit 1 Declaration of Andrea Saenz)(Menschel, Brooke) (Entered: 06/14/2019)
101 LETTER addressed to Judge Andrew L. Carter, Jr. from Steven J. Kochevar dated June 14, 2019 re: Response to Plaintiffs' June 14, 2019 Letter. Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R. Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker.(Kochevar, Steven) (Entered: 06/14/2019)
102 OPINION AND ORDER re: 17 MOTION to Certify Class . filed by A.R.B., Brooklyn Defender Services, B.M.B., R.F.J., Bronx Defenders, 36 MOTION for Preliminary Injunction . filed by B.M.B., J.C., R.F.J., Legal Aid Society, Bronx Defenders, A.R.B., Brooklyn Defender Services, A.Q., K.T., P.L.. For all of the above−stated reasons, Plaintiffs' motions for a preliminary injunction and class certification are DENIED and Defendants' motion to dismiss is GRANTED. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 6/21/2019) (kv) Transmission to Orders and Judgments Clerk for processing. (Entered: 06/21/2019)
103 CLERK'S JUDGMENT re: 102 Memorandum & Opinion in favor of Executive Office for Immigration Review, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Daniel J. Daugherty, James McHenry, Kirstjen Nielsen, Matthew G. Whitaker, Matthew T. Albence, Ronald Vitiello, Thomas R. Decker, William P. Joyce against A.Q., A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, J.C., K.T., Legal Aid Society, P.L., R.F.J. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated June 21, 2019, Plaintiffs' motions for a preliminary injunction and class certification are DENIED and Defendants' motion to dismiss is GRANTED. (Signed by Clerk of Court Ruby Krajick on 6/24/2019) (Attachments: # 1 Right to Appeal)(km) (Entered: 06/24/2019)
104 MOTION for Johanna Beth Steinberg to Withdraw as Attorney . Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, J.C., K.T., P.L., R.F.J..(Steinberg, Johanna) (Entered: 07/17/2019)
105 MOTION to Alter Judgment Under Rule 59(e). Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J..(Gunther, Robert) (Entered: 07/22/2019)
106 MEMORANDUM OF LAW in Support re: 105 MOTION to Alter Judgment Under Rule 59(e). . Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 07/22/2019)
107 ORDER: The Court is in receipt of Plaintiffs' motion to alter the judgment. Accordingly, the Parties are hereby ORDERED to adhere to the following briefing schedule: Responses due by 8/22/2019, Replies due by 9/5/2019. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 7/23/2019) (ama) (Entered: 07/23/2019)
108 MEMO ENDORSEMENT on MOTION TO WITHDRAW: granting 104 Motion to Withdraw as Attorney. ENDORSEMENT: The Application is Granted. Attorney Johanna Beth Steinberg terminated. (Signed by Judge Andrew L. Carter, Jr on 7/23/2019) (ama) (Entered: 07/23/2019)
109 MOTION for William C. Kinder to Withdraw as Attorney . Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J..(Kinder, William) (Entered: 07/26/2019)
110 MEMO ENDORSED ORDER granting 109 Motion to Withdraw as Attorney. ENDORSEMENT: The application is granted. Attorney William C. Kinder terminated. (Signed by Judge Andrew L. Carter, Jr on 8/1/2019) (rj) (Entered: 08/01/2019)
111 MEMORANDUM OF LAW in Opposition re: 105 MOTION to Alter Judgment Under Rule 59(e). . Document filed by Matthew T. Albence, Daniel J. Daugherty, Thomas R.

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Decker, Executive Office for Immigration Review, William P. Joyce, James McHenry, Kirstjen Nielsen, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States Department of Justice, Ronald Vitiello, Matthew G. Whitaker. (Cha−Kim, Stephen) (Entered: 08/22/2019)
112 MOTION for Shakeer Mostafa Rahman to Withdraw as Attorney . Document filed by A.Q., A.R.B., B.M.B., Bronx Defenders, J.C., K.T., P.L., R.F.J..(Rahman, Shakeer) (Entered: 08/30/2019)
113 MEMO ENDORSEMENT on MOTION TO WITHDRAW AS COUNSEL: granting 112 Motion to Withdraw as Attorney. ENDORSEMENT: The Application is Granted. Attorney Shakeer Mostafa Rahman terminated. (Signed by Judge Andrew L. Carter, Jr on 9/03/2019) (ama) (Entered: 09/03/2019)
114 REPLY MEMORANDUM OF LAW in Support re: 105 MOTION to Alter Judgment Under Rule 59(e). . Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Gunther, Robert) (Entered: 09/05/2019)
115 DECLARATION of Christopher Bouchoux in Support re: 105 MOTION to Alter Judgment Under Rule 59(e).. Document filed by A.R.B., B.M.B., Bronx Defenders, Brooklyn Defender Services, R.F.J.. (Attachments: # 1 Exhibit 1 − Notice of Production)(Gunther, Robert) (Entered: 09/05/2019)
116 TRANSCRIPT of Proceedings re: CONFERENCE held on 5/2/2019 before Judge Andrew L. Carter, Jr.. Court Reporter/Transcriber: Vincent Bologna, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/1/2019. Redacted Transcript Deadline set for 10/11/2019. Release of Transcript Restriction set for 12/9/2019.(McGuirk, Kelly) (Entered: 09/10/2019)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/2/19 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/10/2019)

 
 Case 1:19-cv-01336-ALC Document 102 UNITED STATES DISTRICT COURT

Filed 06/21/19 Page 1 of 8
USDCSDNY DOCUMENT ELECTRONICALLY
FILED
9 DDAOTCE#F:IL-E-D-: --~--.-2.~.1~-o)x

SOUTHERN DISTRICT OF NEW YORK

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P.L., A.Q., K.T., R.F.J., A.R.B., B.M.B., and J.C., Individually and on behalfofall others similarly situated; BROOKLYN DEFENDER SERVICES, THE LEGAL AID SOCIETY; and THE BRONX DEFENDERS,

1:19-cv-01336 (ALC) OPINION AND ORDER

-against-

Plaintiffs,

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; RONALD VITIELLO, Deputy Director and Acting Director of ICE, in official capacity; KIRSTJEN NIELSEN, Secretary of Homeland Security, in official capacity; MATTHEW G. WHITAKER, Acting United States Attorney General, in official capacity; MATTHEW T. ALBENE, Executive Associate Director of ICE Enforcement Removal Operations, in official capacity; THOMAS R. DECKER Director ofNew York Field Office ofiCE, in official capacity; WILLIAM P. JOYCE, Deputy Director of New York Field Office ofiCE, in official capacity; JAMES MCHENRY, Director of Executive Office for Immigration Review, in official capacity; and DANIEL J. DAUGHERTY, Assistant Chief Immigration Judge, in official capacity.,

Defendants.

------------------------------------------------------------------------)(

1

Case 1:19-cv-01336-ALC Document 102 Filed 06/21/19 Page 2 of 8
ANDREW L. CARTER, JR., United States District Judge: Plaintiffs R.F.J., A.R.B., J.C., P.L., K.T. and A.Q. (collectively, "Representative
Plaintiffs") and Plaintiffs Brooklyn Defenders Services, The Legal Aid Society and The Bronx Defenders (collectively, "Organizational Plaintiffs") filed this lawsuit against Defendants1 U.S. Immigration and Customs Enforcement ("ICE"), U.S. Department of Homeland Security, U.S. Department of Justice, and the Executive Office for Immigration Review (collectively, "Defendants") alleging violations of the U.S. Constitution's Due Process Clause, the Immigration and Nationality Act, the Administrative Procedure Act, and the Rehabilitation Act. ECF No. 2. Plaintiffs have filed motions for class certification and for a preliminary injunction to enjoin Defendants from refusing to produce detained immigrants in person for removal proceedings. ECF Nos. 17 & 36. For the reasons set forth below, Plaintiffs' motions are DENIED and Defendants' motion to dismiss for lack of subject matter jurisdiction is GRANTED.
BACKGROUND Representative Plaintiffs are seven immigrants that were, and in some cases still are, detained in jails outside of New York City and were required to appear for removal proceedings through video teleconferencing ("VTC"). The Organizational Plaintiffs have represented or currently represent the Representative Plaintiffs and other detained immigrants in removal
1 The Complaint also names the following government officials in their official capacity as defendants: Deputy Director and Acting Director ofiCE Ronald Vitiello, Secretary of Homeland Security Kirstjen Nielsen, Acting United States Attorney General Matthew G. Whitaker, Executive Associate Director ofiCE Enforcement Removal Operations Matthew T. Albene, Director ofNew York Field Office ofiCE Thomas R. Decker, Deputy Director of New York Field Office ofiCE William P. Joyce, Director of Executive Office for Immigration Review, James McHenry, and Assistant Chieflmmigration Judge Daniel J. Daugherty.
2

Case 1:19-cv-01336-ALC Document 102 Filed 06/21/19 Page 3 of 8
proceedings. The Defendant ICE's New York Field Office contracts with jails in the surrounding area to house detained immigrants pending their removal proceedings.
Prior to June 2018, detained immigrants who had removal proceedings at the Varick Street Immigration Court typically appeared for hearings in person. However, on June 27, 2018, the ICE NY Field Office announced it would stop producing detained immigrants in person and instead, detained immigrants would primarily appear for immigration proceedings through VTC ("VTC policy"). Initially, the ICE NY Field Office stated this policy change was in response to safety concerns resulting from a multi-day protest from June 21, 2018 to June 25, 2018 outside the Varick Street Immigration Court. However, the ICE NY Field Office later stated it implemented the policy change due to increases in the number of immigration proceedings occurring at the Varick Street Immigration Court, cost and logistical challenges.
The implementation of the VTC policy has been plagued by numerous technological and scheduling challenges including but not limited to: poor connections, technological failures, over-scheduling, and a limited number VTC lines. Due to these issues, removal proceedings have had to be adjourned or delayed, often prolonging immigrants' time in detention. Although Defendants have acknowledged that there have been technological and scheduling difficulties associated with the adoption of the VTC policy, they maintain that they have taken steps to address these issues. These challenges, however, seem to persist as demonstrated by the fact that the Hudson County Correctional Facility experienced technological failures with its VTC on the day of Oral Argument on the motions before this Court.
In addition to the technological and scheduling difficulties, Representative Plaintiffs and Organizational Plaintiffs allege the VTC policy has affected Representative Plaintiffs', and others' similarly situated, ability to meaningfully participate in their removal proceedings. In
3

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particular, they claim the VTC policy prevents detained immigrants from adequately examining evidence against them, retaining counsel, communicating confidentially with counsel, and effectively utilizing foreign language interpretation services. The Organizational Plaintiffs additionally allege the VTC policy increases the time and cost associated with providing legal services to detained immigrants and their ability to effectively represent their clients.
LEGAL STANDARD
I. Subject Matter Jurisdiction The Court must examine whether it has subject matter jurisdiction as a threshold inquiry
since the existence of subject matter jurisdiction invokes the Court's constitutional or statutory authority to adjudicate the claims before it. Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Challenges to subject matter jurisdiction may be raised by the parties or by the Court sua sponte. Promise! v. First Am. Artificial Flowers, Inc., 943 F.2d 251,254 (2d Cir. 1991).
"[I]t is the burden of the party who seeks the exercise ofjurisdiction in his favor, clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Bd. ofEduc. ofMt. Sinai Union Free Sch. Dist. v. N. Y State Teachers Ret. Sys., 60 F.3d 106, 109 (2d Cir. 1995) (quoting FWIPBS, Inc. v. City ofDallas, 493 U.S. 215, 231 (1990)). "[W]e must accept as true all material factual allegations in the complaint, but we are not to draw inferences from the complaint favorable to plaintiffs." JS. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). Rather, Plaintiffs must prove subject matter jurisdiction exists by a preponderance of the evidence. Makarova, 201 F.3d at 113.
DISCUSSION
The Real ID Act of 2005 provides: 4

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[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section 8 U.S.C. § 1252(b)(9). The Second Circuit has established a "substance of the relief' test for determining whether district courts have jurisdiction over cases involving removal proceedings. Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011). Where immigrants in removal proceedings seek to directly or indirectly challenge removal orders or proceedings, the Second Circuit and district courts within the circuit have held district courts do not have jurisdiction. I d. See e.g., Qiao v. Lynch, 672 F. App'x 134, 135 (2d Cir. 2017) (holding the "IJ's challenged order reopening removal proceedings against Qiao is inextricably linked to the removal proceedings"); Selvaraja v. US. Dept. ofHomeland Sec., No. 10 civ. 4580,2010 WL 4861347, *4 (S.D.N.Y. Nov. 30, 201 0) (holding the district court lacked jurisdiction over Plaintiffs challenges to the Notice to Appear because it is "the necessary first step for initiating the removal process" and therefore arises from removal proceedings); Vasquez v. United States, No. 15 CV. 3946, 2015 WL 4619805, at *4 (S.D.N.Y. Aug. 3, 2015) (holding the district court lackedjurisdiction over a motion seeking to stay removal); cf Calderon v. Session, 330 F.Supp.3d 944, 955 (S.D.N.Y. 20 18) (holding the district court had jurisdiction over the Petitioner's "right to seek access to a lawful regulatory process"); Michalski v. Decker, 279 F. Supp. 3d 487,494 (S.D.N.Y. 2018) (holding the Petitioner's "challenge to the constitutionality of his arrest and detention is not barred by§ 1252(b)(9)"); Ruiz v. Mukasey, 552 F.3d 269, 274 (2d Cir. 2009)(holding § 1252(b)(9) did "not preclude a district court from exercising jurisdiction over an action seeking review of the denial of an I-13 0 petition because such a denial is unrelated to any removal action or proceeding.").
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However, as the Supreme Court's plurality opinion in Jennings v. Rodriguez explained,§ 1252(b)(9) should not be construed broadly. 138 S. Ct. 830, 840 (2018). Jennings involved a habeas petition challenging the government's prolonged detention of an immigrant in removal proceeding without a bond hearing. A plurality of 3 justices concluded that § 1252(b)(9) did not present a jurisdictional bar. In reaching this determination, Justice Alito explained that "the applicability of§ 1252(b)(9) turns on whether the legal questions ... 'aris[e] from' the actions taken to remove aliens." !d. Although "arising from" could be construed very broadly, such that it encompasses actions that "would never have occurred if [the immigrant] had not been placed in detention," this "expansive interpretation ... would lead to staggering results." !d. For example, courts would be stripped ofjudicial review over claims involving inhumane conditions of confinement or state-law assault claims against guards or other detainees, effectively making any claims of prolonged detention unreviewable. !d.
Although, in concluding that the Court had jurisdiction, the plurality opinion declined to define the scope of§ 1252(b)(9), the fact that it contrasted Petitioner's claim with challenges to "review of an order of removal", "a decision to detain ... or to seek removal" or "any part of the process by which ... removability will be determined," is instructive. !d. at 841. The contrast suggests that federal courts do not have jurisdiction over a claim challenging part of the process of removal proceedings. Here, Plaintiffs challenge Defendants' VTC policy. How immigrants appear for removal proceedings constitutes part of the process of these proceedings. Therefore, the jurisdictional discussion in Jennings contrasting habeas petitions with process challenges is relevant.
The Representative and Organizational Plaintiffs allege that because of Defendants' refusal to produce detained immigrants in person, these immigrants' rights to due process, to
6

Case 1:19-cv-01336-ALC Document 102 Filed 06/21/19 Page 7 of 8
access the courts, to counsel, and to evidentiary and cross-examination privileges are being violated. Furthermore, Plaintiffs allege the Defendants' refusal to produce detained immigrants in the proposed subclass of detained immigrants with disabilities, as defined by the Rehabilitation Act, is discriminatory. Although this Court is very sympathetic to Plaintiffs' claims, it unfortunately lacks jurisdiction over the present case. Plaintiffs' challenge to Defendants' VTC policy arises from "proceeding[s] brought to remove [undocumented immigrants] from the United States." 8 U.S.C. § 1252(b)(9). In other words, because Plaintiffs are challenging, by seeking to enjoin, a "part of the process by which ... removability will be determined," this court does not have jurisdiction.
In addition, it is worth noting that Ragbir v. Homan is not applicable. 923 F.3d 53 (2d Cir. 20 19). In Ragbir, the Second Circuit addressed whether federal courts have jurisdiction over a claim where the Appellant sought to enjoin the execution of a valid final order of removal on First Amendment grounds.Jd. at 57. The Appellant was an outspoken immigration activist, who had publicly criticized ICE.Jd. at 59. He alleged that in enforcing the removal order against him, the Government retaliated against his protected speech and engaged in viewpoint discrimination. ld at 61. The Second Circuit concluded that 8 U.S.C. § 1252(g) stripped federal courts of jurisdiction over the Appellant's claim. ld. at 63-66. However, because the Appellant did not have "access to an 'adequate substitute' to the writ (such as a petition for review), or the writ itself' the Suspension Clause entitled the Appellant to "the constitutionally mandated minimum scope of the privilege of habeas corpus." ld. at 73 (citation omitted). In this case, Plaintiffs challenge Defendants' VTC policy, not their detention. However, even if Plaintiffs had challenged their detention, Ragbir would be inapposite. Unlike the Appellant in Ragbir,
7

Case 1:19-cv-01336-ALC Document 102 Filed 06/21/19 Page 8 of 8

Plaintiffs still have the ability to bring their claims in a BIA proceeding or to file a petition for review.

CONCLUSION

For all of the above-stated reasons, Plaintiffs' motions for a preliminary injunction and

class certification are DENIED and Defendants' motion to dismiss is GRANTED.

SO ORDERED.
Dated: June 21, 2019 New York, New York

~ 7~a---. ANDREW L. CARTER, JR. United States District Judge

8

 
 UNSTAMPED COPY AS FILED - PLEASE CONTACT DBALL@BDS.ORG FOR STAMPED COPY

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

P.L., A.Q., K.T., R.F.J., A.R.B., B.M.B., and )

J.C., individually and on behalf of all others )

similarly situated;

)

BROOKLYN DEFENDER SERVICES;

)

THE LEGAL AID SOCIETY; and

)

THE BRONX DEFENDERS,

)

Plaintiffs

) CLASS ACTION COMPLAINT

v.

)

) JURY TRIAL DEMANDED

U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT;

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY;

) Civil Action No. _______________

UNITED STATES DEPARTMENT OF

)

JUSTICE; EXECUTIVE OFFICE FOR

)

IMMIGRATION REVIEW;

)

RONALD VITIELLO, Deputy Director and )

Acting Director of ICE, in official capacity; )

KIRSTJEN NIELSEN, Secretary of

)

Homeland Security, in official capacity;

)

MATTHEW G. WHITAKER, Acting

)

United States Attorney General, in official )

capacity;

)

MATTHEW T. ALBENCE, Executive

)

Associate Director of ICE Enforcement

)

Removal Operations, in official capacity;

)

THOMAS R. DECKER, Director of New )

York Field Office of ICE, in official

)

capacity;

)

WILLIAM P. JOYCE, Deputy Director of )

New York Field Office of ICE, in official

)

capacity;

)

JAMES MCHENRY, Director of Executive )

Office for Immigration Review, in official )

capacity; and

)

DANIEL J. DAUGHERTY, Assistant Chief )

Immigration Judge, in official capacity,

)

)

Defendants

))

INTRODUCTION 1. This is an action to restore the constitutional and statutory rights of hundreds of detained immigrants by ending Defendants’ exclusive use of video teleconference hearings (“VTC”) at Varick Street Immigration Court in New York City.1 2. On June 27, 2018, ICE’s New York Field Office (“ICE NY Field Office” or “NY Field Office”) announced without warning that it would no longer produce detained immigrants to immigration court to attend their removal proceedings in person (“Refusal to Produce Policy” or “Policy”). Instead, removal proceedings for detained immigrants would be conducted exclusively over VTC, whereby detained immigrants would appear by video feed from the county jails at which they are detained. 3. Defendants’ Policy upended the NY Field Office’s long-standing practice of transporting detained immigrants to the Varick Street Immigration Court to appear for their hearings in person. In-person hearings had long helped ensure detained immigrants an opportunity to fully access the courts and participate in their removal proceedings. The ICE NY Field Office had never previously engaged in a broad refusal to produce individuals for in-person hearings. 4. In-person hearings also allowed the New York Immigrant Family Unity Program (“NYIFUP”)—New York City’s first-in-the-nation appointed counsel program for detained immigrants who cannot afford an attorney—to flourish. Until the events giving rise to this lawsuit, NYIFUP attorneys were able to screen and identify clients in on-site intake interviews at Varick Street Immigration Court on the day of clients’ initial appearances. Under this system, NYIFUP was an immense success. Since 2013, NYIFUP has increased the rate of successful
1 Plaintiffs allege on personal knowledge as to matters relating to Plaintiffs, and on information and belief as to all other matters.
1

outcomes for detained immigrants by 1,100 percent, confirming that the services provided by NYIFUP attorneys reduce unnecessary detention and illegal deportations. NYIFUP attorneys now represent approximately 35 percent of immigrants in proceedings before the Varick Street Immigration Court.
5. Defendants rely on a provision of the Immigration and Nationality Act that gives immigration judges discretion to conduct proceedings through VTC. See 8 U.S.C. § 1229a(b)(2)(A)(iii). But all VTC proceedings must nonetheless “accord with the constitutional requirements for due process.” Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008). The ICE NY Field Office’s implementation of a VTC-only system has failed to comply with constitutional requirements.
6. Defendants’ VTC-only hearings have had disastrous effects on detained immigrants, the ability of their attorneys to effectively represent them, and the efficiency of the immigration court. None of the county jails used by the ICE NY Field Office have sufficient VTC connections to meet the increasing demand of the Varick Street Immigration Court docket. This means that detained immigrants with scheduled hearings often do not have access to an available VTC line, and when a line is available, technical failures have been rampant, preventing detained immigrants from seeing, hearing, or understanding what is happening in the courtroom. These problems result in frequent delays and are compounded when detained immigrants require foreign language interpretation services or accommodations due to disabilities. In addition, the frequent presence of ICE officers in the VTC room from which detained immigrants testify often discourages the immigrants from testifying about sensitive personal information that may be vital to their case.
2

7. Indeed, at a recent hearing over VTC for Representative Plaintiff J.C.—a detained immigrant with a disability—the immigration judge remarked on the record that he believed there would be a violation of “due process and fundamental fairness” if the ICE NY Field Office forced J.C. to appear for his merits hearing by VTC. The judge elaborated: “If he appears via video, I see a problem with that. I have to protect his constitutional rights and I have an expert who told me that this guy shut down when he interviewed him because of certain technical type issues.” Yet under Defendants’ Policy, J.C. and all other immigrants detained by the ICE New York Field Office are required to appear by VTC. Defendants’ Policy thus severely hampers detained immigrants’ ability to participate in their hearings and effectively present their case, and prevents immigration judges from making adequate credibility determinations in accordance with constitutional and statutory due process protections.
8. Defendants’ Policy also prevents detained immigrants from fully engaging with their attorneys. The three NYIFUP organizations—Brooklyn Defender Services, The Bronx Defenders, and The Legal Aid Society (collectively “NYIFUP Providers” or “Organizational Plaintiffs”)— face unnecessary and growing costs, as their attorneys must now routinely visit the jails outside of the city for all client matters. NYIFUP attorneys can no longer conduct intake interviews efficiently or confer with their clients immediately before or after hearings. Instead, attorneys are forced to discuss strategy over the VTC lines, often in the presence of jail officers and/or court personnel. Even more troubling, Defendants’ Policy prevents these lawyers from being able to confer confidentially with their clients during hearings to provide legal advice, discuss strategy, or review evidence.
9. Defendants implemented the Policy despite knowing that the system-wide use of VTC could violate the due process rights of detained immigrants. For example, a 2017 report
3

commissioned by Defendant EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”2 Defendants’ Policy thus contradicts the recommendations from their own commissioned study regarding the use of VTC.
10. Defendants implemented the Policy without considering its effect on detained immigrants’ constitutional and statutory rights. Defendants conducted no evaluation of their technological capacity to implement a VTC-only system or the obstacles such a system would pose to detained immigrants’ ability to access the courts and their attorneys. Defendants provided no warning to the NYIFUP providers or to the private bar regarding the policy, nor any accommodation to allow NYIFUP attorneys to conduct intake and speak confidentially with their clients.
11. Significantly, Defendants have failed to provide an accurate reason for the Policy. The initial justification for the Refusal to Produce Policy was a purported security threat caused by a small group of peaceful and lawful protesters. But that protest ended the same day that Defendants’ announced their new Policy, and it has not returned. Yet the Policy remains. To explain this, Defendants have offered evolving rationales. First it was public safety; then it was cost effectiveness; then it was part of a nationwide plan to streamline immigration proceedings; then it was public safety again. Defendants’ shifting justifications are pretext for their real, illegitimate motivation: the government’s nationwide effort to expedite deportations at the expense of due process.
12. The Plaintiffs in this case, P.L., A.Q., K.T., R.F.J., A.R.B., B.M.B., and J.C. (collectively “Representative Plaintiffs”), on behalf of the putative class members (“Putative
2 Booz Allen Hamilton, Department of Justice, Executive Office for Immigration Review Legal Case Study Summary Report (“EOIR Report”), April 6, 2017 at 23.
4

Class” or “detained immigrants”3), and the three NYIFUP Providers—bring this challenge to enforce the government’s obligations to provide detained immigrants with constitutional and statutory fair-hearing protections, to ensure full and meaningful access to the courts, and to preserve the right of clients to associate with their attorneys.
13. Plaintiffs seek a declaration that the Policy as implemented violates protections guaranteed by the First Amendment, the Fifth Amendment, the Immigration and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), and the Rehabilitation Act. Plaintiffs further seek to enjoin the Policy and enjoin Defendants from relying exclusively on VTC technology to conduct proceedings before the Varick Street Immigration Court.
JURISDICTION AND VENUE 14. This Court has subject matter jurisdiction under 28 U.S.C. § 1331. The United States has waived sovereign immunity for purposes of this case. See Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 652 (2d Cir. 1998) (noting that “sovereign immunity is waived by the Administrative Procedure Act” when “the complaint seeks only equitable relief”); see also 5 U.S.C. §§ 702, 706 (Administrative Procedure Act) (providing the right to judicial review and defining the scope of review).
3 Although the term “immigrant” is used for convenience, Plaintiffs note that the proposed class likely includes U.S. citizens wrongfully deemed to be noncitizens by ICE. See, e.g., Jaen v. Sessions, 899 F.3d 182, 184 (2018) (concluding that a Brooklyn Defender Services client detained at the direction of the ICE NY Field Office was, in fact, a U.S. citizen); id. at 190–91 and n.2 (Pooler, J., concurring) (expressing concern that immigration officials had detained Mr. Jaen for two years, and noting that his case “does not seem to be entirely aberrational”); Watson v. United States, 865 F.3d 123 (2d Cir. 2017) (discussing case of New York resident and U.S. citizen Davino Watson, who was held in immigration detention for over three years). Between 2012 and mid-2018, ICE released over 1,480 individuals from immigration detention after investigating their citizenship claims. Paige St. John & Joel Rubin, ICE held an American man in custody for 1,273 days. He’s not the only one who had to prove his citizenship, L.A. Times (Sept. 17, 2018), https://www.latimes.com/local/lanow/la-me-citizens-ice-20180427-htmlstory.html.
5

15. Venue is proper pursuant to 28 U.S.C. § 1391(b) and (e) because one or more defendants’ place of business is in this District and a substantial part of the events or omissions giving rise to the claim occurred and continue to occur in this District.
16. Personal jurisdiction is proper because one or more defendants’ place of business is in this District, and the events or omissions giving rise to the claim occurred and continue to occur in this District.
PARTIES 17. Representative Plaintiff P.L. is a lawful permanent resident who has lived in the United States since 2011. He has been detained by the ICE NY Field Office since March 14, 2018 pending the outcome of his removal proceedings at the Varick Street Immigration Court. He is currently detained at Hudson County Jail. 18. Representative Plaintiff K.T is a lawful permanent resident who has lived in the United States since he was a teenager. He has been detained by the ICE NY Field Office since July 13, 2018 pending the outcome of his removal proceedings at the Varick Street Immigration Court. He is currently detained at Orange County Jail. 19. Representative Plaintiff A.Q. has lived in the United States since he was a toddler and has been a lawful permanent resident since he was eight years old. He has been detained by the ICE NY Field Office since February 1, 2018 and is currently detained pending the outcome of his appeal of a removal order issued by the Varick Street Immigration Court. He is currently detained at Essex County Jail.
6

20. Representative Plaintiff R.F.J. has been detained by the ICE NY Field Office since January 2018 pending the outcome of their removal proceedings at Varick Street Immigration Court.4 They are currently detained at Bergen County Jail.
21. Representative Plaintiff B.M.B. has continuously resided in the United States for 32 years. B.M.B. has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”), major depressive disorder, and a major neurocognitive disorder due to a traumatic brain injury. He has been detained by the ICE NY Field Office since April 2018 pending the outcome of his removal proceedings at Varick Street Immigration Court. He is currently detained at Bergen County Jail.
22. Representative Plaintiff A.R.B. has been detained by the ICE NY Field Office since April 2018 pending the outcome of his removal proceedings at Varick Street Immigration Court. He is currently detained at Bergen County Jail.
23. Representative Plaintiff J.C. has been diagnosed with cognitive impairments and been deemed incompetent by an immigration judge. He has been detained by the ICE NY Field Office since March 2018 pending the outcome of his removal proceedings at Varick Street Immigration Court. He is currently detained at Hudson County Jail.
24. Organizational Plaintiff Brooklyn Defender Services (“BDS”) is a public defender organization that represents nearly 30,000 low-income residents of Brooklyn and elsewhere each year in criminal, family, civil, and immigration proceedings, providing interdisciplinary legal and social services since 1996. Since 2009, BDS has counseled, advised, or represented more than 10,000 clients in immigration matters including deportation defense, affirmative applications, and advisals. Since 2013, BDS has represented more than 1,200 detained
4 Plaintiff R.F.J. identifies as gender non-conforming and uses they/them pronouns.
7

immigrants through NYIFUP. BDS represents three Representative Plaintiffs, P.L., K.T., A.Q., and hundreds of detained immigrants in removal proceedings.
25. Organizational Plaintiff The Bronx Defenders (“BxD”) is a public defender organization that provides innovative, holistic, and client-centered criminal defense, family defense, civil legal services, and social work support to roughly 30,000 indigent people in the Bronx and elsewhere each year. BxD maintains an immigration practice focused on early intervention, immigration advice in pending criminal cases, benefits advocacy, and deportation defense. BxD has represented detained immigrants through NYIFUP since 2013. BxD represents three Representative Plaintiffs, R.F.J., B.M.B., and A.R.B., and hundreds of detained immigrants in removal proceedings.
26. Organizational Plaintiff The Legal Aid Society (“LAS”) is the oldest and largest program in the nation providing direct legal services to low-income families and individuals. With its annual caseload of more than 300,000 legal matters, LAS takes on more cases for more clients than any other legal services organization in the United States. LAS’s Civil Practice maintains an Immigration Law Unit (“ILU”), which has over 3,000 open immigration matters, including over 850 cases in removal proceedings. The ILU practice includes a broad range of legal services including, but not limited to, deportation defense, affirmative applications, familybased adjustment, Special Immigrant Juvenile Status, and federal matters before the New York and New Jersey district courts and the Second and Third Circuit Courts of Appeals. Since 2014, LAS has represented more than 1000 detained immigrants through NYIFUP. Legal Aid currently represents one Representative Plaintiff, J.C., and over one hundred detained immigrants in removal proceedings.
8

27. BDS, BxD, and LAS collectively represent hundreds of detained immigrants in bond proceedings, competency hearings, and individual merits hearings in immigration court.5
28. Defendant United States Immigration and Customs Enforcement (“ICE”) is a component of the United States Department of Homeland Security headquartered in Washington, D.C. ICE is charged with enforcing the federal immigration laws and seeks to arrest, detain, and deport removable immigrants in the United States.
29. Defendant United States Department of Homeland Security (“DHS”) is an executive department of the United States Government responsible for, among other things, enforcing federal immigration laws and ensuring border security. DHS is headquartered in Washington, D.C.
30. Defendant United States Department of Justice (“DOJ”) is the chief law enforcement agency of the United States. DOJ is responsible for overseeing and making policy on behalf of the Executive Office for Immigration Review, which oversees immigration judges. DOJ’s mission is to enforce the law, including the constitutional and statutory rights of immigrants. DOJ is headquartered in Washington, D.C.
31. Defendant Executive Office for Immigration Review (“EOIR”) is an office within DOJ, headquartered in Falls Church, Virginia. EOIR is responsible for adjudicating immigration cases and oversees the Board of Immigration Appeals and the Office of the Chief Immigration Judge.
32. Defendant William P. Joyce is the Deputy Field Office Director of the ICE NY Field Office. He is responsible for the enforcement of the federal immigration laws in New York
5 The detained immigrants discussed in this lawsuit are subject to removal proceedings, commonly referred to as deportation proceedings. Throughout their proceedings, detained immigrants file applications and make legal arguments at status hearings referred to as “master calendar hearings,” and participate in bond hearings, final merits hearings referred to as “individual hearings,” and, where necessary, “M-A-M hearings” to assess competency.
9

City and surrounding counties within New York, including the NY Field Office’s Refusal to Produce Policy. He is also responsible for ensuring that all individuals in ICE custody are detained in accordance with the Constitution and all relevant statutes and laws. His address is ICE New York Field Office, 26 Federal Plaza, 11th Floor, New York, New York 10278. Defendant Joyce is named in his official capacity.
33. Defendant Thomas R. Decker is the Director of the ICE NY Field Office. He is primarily responsible for the implementation and enforcement of policies concerning the federal immigration laws in New York City and surrounding counties within New York, including the NY Field Office’s Refusal to Produce Policy. He is also responsible for ensuring that all individuals in ICE custody are detained in accordance with the Constitution and all relevant statutes and laws. He supervises Defendant William P. Joyce. His address is ICE New York Field Office, 26 Federal Plaza, 11th Floor, New York, New York 10278. Defendant Decker is named in his official capacity.
34. Defendant Matthew T. Albence is the Executive Associate Director of ICE Enforcement Removal Operations. He is responsible for overseeing ICE’s day-to-day operations and managing operational staff in the implementation and enforcement of policies concerning federal immigration laws. He is also responsible for ensuring that all individuals in ICE custody are detained in accordance with the Constitution and all relevant statutes and laws. He supervises Defendant Decker. His address is U.S. Immigration and Customs Enforcement, 500 12th Street, SW, Washington, D.C. 20536. Defendant Albence is named in his official capacity.
35. Defendant Ronald Vitiello is the Deputy Director and Acting Director of ICE. He is responsible for setting and enforcing policy concerning federal immigration laws. He is also responsible for ensuring that all individuals in ICE custody are detained in accordance with the
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Constitution and all relevant statutes and laws. He supervises Defendants Matthew T. Albence and Thomas R. Decker. His address is U.S. Immigration and Customs Enforcement, 500 12th Street, SW, Washington, D.C. 20536. Defendant Vitiello is named in his official capacity.
36. Defendant Kirstjen Nielsen is the Secretary of DHS. She is responsible for the administration and enforcement of the federal immigration laws. She is also responsible for ensuring that all individuals in ICE custody are detained in accordance with the Constitution and all relevant statutes and laws. Defendant Nielsen oversees the agencies within DHS, including ICE. She supervises Defendant Ronald Vitiello. Her address is U.S. Department of Homeland Security, 800 K Street, NW #1000, Washington, D.C., 20528. Defendant Nielsen is named in her official capacity.
37. Defendant Daniel J. Daugherty is the Assistant Chief Immigration Judge for the Varick Street Immigration Court. He is responsible for overseeing immigration judges at Varick Street and ensuring that the proceedings are conducted in accordance with the constitutional and statutory rights of immigrants. His address is 110 North City Parkway, Suite 400, Las Vegas, Nevada 89106. Defendant Daugherty is named in his official capacity.
38. Defendant James McHenry is the Director of the Executive Office for Immigration Review. He is responsible for the oversight of immigration proceedings and ensuring that they are conducted in accordance with the constitutional and statutory rights of immigrants. His address is 5107 Leesburg Pike, Falls Church, Virginia 22041. Defendant McHenry is named in his official capacity.
39. Defendant Matthew G. Whitaker is the Acting Attorney General of the United States. He oversees DOJ and, in that capacity, oversees EOIR. His address is 950 Pennsylvania Avenue, NW, Washington, D.C. 20530. Defendant Whitaker is named in his official capacity.
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LEGAL FRAMEWORK 40. The Due Process Clause of the Fifth Amendment of the United States Constitution forbids the government from depriving an individual of life, liberty, or property without due process of law. U.S. Const. amend. V. 41. The Petition Clause of the First Amendment of the United States Constitution guarantees the right of access to courts and prohibits the government and its agents from unjustifiably obstructing that access. U.S. Const. amend. I. 42. The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (“INA”), governs removal proceedings. Proceedings conducted pursuant to the INA must comport with the constitutional requirements for due process, which include procedures that ensure that immigrants receive a full and fair hearing on their claims. Aslam, 537 F.3d at 114. 43. The INA also guarantees immigrants access to counsel during their removal proceedings. Specifically, the INA provides each noncitizen with “the privilege of being represented, at no expense to the government, by counsel of the alien’s choosing,” the opportunity to examine evidence presented against him or her, and the ability to present evidence on his or her own behalf and cross-examine Government witnesses. 8 U.S.C. § 1229a(b)(4). 44. The INA contemplates that immigrants may be detained or at liberty during their immigration proceedings. 8 U.S.C. § 1226(a)(1), (2). Immigrants who are detained pending their removal proceedings are detained for civil, not criminal proceedings. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Pursuant to contracts between the county jails and ICE, immigrants detained by the NY Field Office are held in civil immigration detention in county
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jails in New Jersey and New York in conditions akin to criminal incarceration.6 As a result, detained immigrants’ access to the outside world, including access to their attorneys, is limited, monitored, and sometimes recorded.
45. While the INA contemplates some removal proceedings potentially being conducted through VTC, 8 U.S.C. § 1229a(b)(2)(A)(iii), the use of VTC must always “accord with the constitutional requirements for due process.” Aslam, 537 F.3d at 114.
46. The INA vests immigration judges, employees of EOIR, with the authority to compel in-person production of immigrants from the jails where they are confined to the courthouse for their immigration proceedings. 8 C.F.R. §§ 1003.35(b)(1), 1240.1(c).
47. The Rehabilitation Act requires the government to make reasonable accommodations for individuals with disabilities to ensure they can access government benefits and opportunities. 29 U.S.C. §§ 701, 794(a).
48. As Plaintiffs allege herein, the Defendants’ Policy of exclusively using VTC does not comport with detained immigrants’ and the Organizational Plaintiffs’ constitutional and statutory rights.
STATEMENT OF FACTS Removal Proceedings in New York City 49. Each year, the federal government arrests, detains, and ultimately seeks to remove over a hundred thousand immigrants from the United States.7
6 Individuals detained by the NY Field Office are typically held at the Hudson County Jail in Kearny, New Jersey, the Bergen County Jail in Hackensack, New Jersey, or the Orange County Jail in Goshen, New York. 7 See, e.g., ICE Impact in FY 2017, https://www.ice.gov/topics/fy2017 (last visited Feb. 10, 2019) (noting that in 2017, ICE arrested more than 143,000 immigrants and removed more than 81,000 people from the United States).
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50. Defendant ICE is responsible for arresting, processing, and detaining immigrants that Defendant DHS seeks to remove from the United States. Defendant ICE’s New York Field Office is responsible for processing all arrests and removal cases in the New York City area.8 Those immigrants detained by the NY Field Office are held in civil immigration detention in county jails in New Jersey and New York pursuant to those county jails’ contracts with ICE.
51. For administrative purposes, the immigration courts in New York distinguish between immigrants who are: a) detained during the pendency of their proceedings and b) those who are released on bond or recognizance, or never detained during proceedings.
52. Proceedings for immigrants detained by ICE—the “detained docket”—generally take place at 201 Varick Street, New York, New York (“Varick Street Immigration Court”). During fiscal year 2018, the Varick Street Immigration Court processed 1,777 new cases of immigrants who were detained following an arrest by ICE.9
53. During fiscal year 2018, the ICE NY Field Office and EOIR jointly processed and adjudicated the removal cases of 27,037 immigrants in the New York City area.10
8 Defendant ICE maintains two field offices in New York State—the ICE NY Field Office in New York City and the Buffalo Field Office. The ICE NY Field Office exercises jurisdiction over proceedings in New York City as well as Dutchess, Nassau, Putnam, Suffolk, Sullivan, Orange, Rockland, Ulster, and Westchester counties. Policies and procedures of the Buffalo Field Office are not at issue in this case. 9 See New Deportation Proceedings Filed in Immigration Court, TRACImmigration, https://trac.syr.edu/phptools/immigration/charges/deport_filing_charge.php. If a noncitizen is initially detained but subsequently posts bond following a hearing, his or her case generally will be transferred to the non-detained docket at 26 Federal Plaza, New York, New York. However, EOIR has recently begun conducting some proceedings for the detained docket via videoconference at 26 Federal Plaza. In addition, EOIR has informed the NYIFUP Providers that starting in March 2019, it will conduct some proceedings for the non-detained docket in new courtrooms at the Varick Street Immigration Court. Individuals with removal proceedings pending on the nondetained docket are not members of the putative class. 10 See id.
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The Immigrant Representation Crisis and History of NYIFUP 54. Immigrants facing deportation are frequently unrepresented. Removal proceedings are the only legal proceedings in the United States where people are detained by the federal government and required to litigate for their liberty against trained government attorneys without any guaranteed assistance of counsel. Yet the consequence of these proceedings— permanent exile from the United States and separation from family, friends, and loved ones—can be just as severe as, or even more harsh than, criminal imprisonment. 55. The individuals facing deportation are nearly universally vulnerable: they often are unfamiliar with the legal system, lack financial resources, face language barriers, and are susceptible to coercion by incompetent or unscrupulous “advocates.” 56. In 2010, recognizing the magnitude of problems associated with the low rates of legal representation in immigration proceedings, Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit11 convened the Study Group on Immigrant Representation (the “Study Group”). The Study Group began the New York Immigrant Representation Study, a two-year study of the immigrant representation crisis in New York. 57. In December 2011, the Study Group issued a report titled Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings.12 The report quantified the scale and nature of the barriers to representation faced by noncitizens in removal proceedings. It found that 60 percent of New York’s detained immigrants did not have legal representation, and only three percent of New York’s detained, unrepresented immigrants achieved successful
11 Judge Katzmann was appointed to the Second Circuit in 1999 and became the chief judge on September 1, 2013. 12 New York Immigrant Representation Study, Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings (Dec. 2011) at 3, https://www.ils.ny.gov/files/Accessing%20Justice.pdf.
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outcomes in court.13 The study concluded that many deported immigrants had credible and legitimate bases to lawfully remain in the United States but, without representation, were facing unjust removal.
58. In 2013, a coalition of equal justice and immigrant rights organizations won the support of the New York City Council for the creation of the NYIFUP program. Initially a pilot that in 2014 became fully funded, NYIFUP is the first program in the nation providing publiclyfunded counsel to detained immigrants who cannot afford an attorney and are facing deportation and separation from their families and communities.
59. Since 2014, New York City has administered the NYIFUP program by contracting with BDS, BxD, and LAS to provide deportation defense for detained immigrants at the Varick Street Immigration Court. NYIFUP attorneys represent clients in immigration court and on appeal and provide ancillary services as needed.
NYIFUP Proves an Immense Success 60. Since the establishment of NYIFUP in 2014, the NYIFUP Providers have defended thousands of detained immigrants in removal proceedings, won release from ICE custody for over 900 clients, and won cases for over 500 clients. In 2018, over 700 detained immigrants received representation through the program. NYIFUP attorneys now represent approximately 35 percent of detained immigrants in proceedings before the Varick Street Immigration Court. 61. The outcomes for detained immigrants have improved dramatically since NYIFUP was implemented. A 2017 evaluation report estimated that 48 percent of NYIFUP
13 Id.
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clients achieve successful outcomes in their cases.14 Before NYIFUP, the success rate for unrepresented detained individuals was just 4 percent.15 This represents a 1,100 percent increase in successful outcomes for detained noncitizens at the Varick Street Immigration Court. These results confirm that the legal representation provided by NYIFUP allows detained immigrants to fully and fairly present their case.
Varick Street Court Proceedings Before June 2018 62. Until the events giving rise to this lawsuit, the ICE NY Field Office had maintained the regular practice of transporting detained immigrants to Varick Street Immigration Court for their immigration hearings. 63. Prior to implementation of the Policy, NYIFUP attorneys conducted on-site eligibility interviews and prepared income assessments in person in a private meeting space at the Varick Street Immigration Court on the day of an individual’s initial appearance. The vast majority of detained immigrants who appeared at intake qualified for a NYIFUP attorney and were otherwise unrepresented. 64. If the NYIFUP attorneys determined that a detained immigrant was eligible for NYIFUP services, an attorney was assigned the case and proceeded to conduct a comprehensive client interview and provide initial legal advice. During the intake process, NYIFUP staff also conducted conflicts checks and other administrative steps necessary to their representation. 65. All of these meetings between attorney and client took place in person, one-onone, immediately prior to the detained immigrant’s initial immigration court appearance. During
14 Jennifer Stave et al., Evaluation of the New York Immigrant Family Unity Project: Assessing the Impact of Legal Representation on Family and Community Unity at 6, (Nov. 2017), https://storage.googleapis.com/vera-webassets/downloads/Publications/new-york-immigrant-family-unity-project-evaluation/legacy_downloads/new-yorkimmigrant-family-unity-project-evaluation.pdf. 15 Id.
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such initial meetings, the attorney would discuss the upcoming court proceeding and explore how the client wanted to approach the case. Later that same day, the attorney would enter an appearance on the detained immigrant’s behalf.
66. This confidential intake process—which depended on the in-person production of detained immigrants—was critical to the NYIFUP program’s mission of providing universal representation for detained immigrants. Moreover, it provides a reasonable and effective way for the detained immigrant to access and retain counsel.
67. Following the initial appearance, ICE continued to produce detained immigrants in person for all remaining hearings in their removal proceedings. NYIFUP attorneys were able to meet with their clients in person at the Varick Street Immigration Court to provide updates on their case and discuss legal strategy.
68. Because they appeared in person, detained immigrants had the opportunity to consult with counsel before, during, and after hearings in order to confirm strategy, clarify facts, review evidence, or otherwise discuss the day’s proceedings. Where detained immigrants required more than a brief consultation with their counsel in the midst of proceedings, attorneys were able to consult in meeting rooms adjacent to the immigration court or to briefly adjourn the case and recall it later that same day, after privately convening with their client.
69. During the proceedings, interpreters were available for detained immigrants who communicated best in a language other than English. The majority of these interpreters appeared in person and were able to communicate with detained immigrants from a distance of a few feet or less.
70. The close physical proximity typically allowed for efficient simultaneous interpretation. Counsel could monitor the effectiveness and accuracy of the translation. The
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physical proximity also provided detained immigrants with a ready opportunity to indicate if they were unable to follow any aspect of the proceeding.
71. Where an interpreter was not available in person, one was provided telephonically. In those instances, the telephonic interpretation was broadcast throughout the court via a speaker system and the detained immigrant, the judge, the lawyers, and any witnesses could be heard. And even though the interpreter was interpreting remotely, detained immigrants could at least identify who was speaking throughout the proceedings.
ICE Implements its Policy of Refusing to Produce Immigrants to Court 72. On Monday, June 25, 2018, Defendants suddenly halted in-person production of detained immigrants for proceedings at the Varick Street Immigration Court. Attorneys from NYIFUP and the private bar reported to the Varick Street Immigration Court for the day’s proceedings, only to discover that the NY Field Office had refused to produce any of the individuals on the docket. As a result, all hearings at the Varick Street Immigration Court were canceled, delaying for months that day’s scheduled immigration proceedings. 73. On Wednesday, June 27, 2018, the NY Field Office announced that it would no longer produce detained immigrants for their immigration hearings in person. Under the Policy, immigrants remain detained at local county jails during the pendency of their removal proceedings. The only opportunity for them to participate in their own proceedings is by VTC from the county jail where they are detained. 74. The purported justification Defendants provided for the Policy was an unspecified security threat to ICE employees, immigration court personnel, and detained immigrants caused
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by a small group of peaceful demonstrators at Varick Street Immigration Court protesting the federal government’s policy of separating children and parent migrants at the southern border.16
75. Protest organizers ceased the protest by midday on June 27. Yet ICE did not revert to in-person production of detained immigrants and has refused to do so.17
76. Defendants implemented the Refusal to Produce Policy without warning and without ensuring that the Policy was implemented in a manner that would comply with detained immigrants’ constitutional and statutory rights. They implemented the Policy with no testing period to evaluate and address potential technological issues or the obstacles to detained immigrants’ ability to access the courts and their attorneys. They provided no warning to the NYIFUP providers or the private bar regarding the Policy, nor any accommodation to allow NYIFUP attorneys to conduct intake and speak confidentially with their clients. And Defendants performed no evaluation to assess and address the array of interpretation, delay, and other problems caused by the Policy. Indeed, for the reasons alleged herein, it is unlikely that any across-the-board nonproduction policy could ever meet constitutional and statutory requirements.
16 Deepti Hajela, ICE Suspends In-person Hearings at NYC Immigration Court (June 27, 2018), https://www.usnews.com/news/best-states/new-york/articles/2018-06-27/ice-suspends-in-person-hearings-at-nycimmigration-court. 17 On December 7, 2018, Defendants advised the Organizational Plaintiffs that ICE would “temporarily resume” inperson production of immigrants housed at Bergen County Jail—one of the three facilities where immigrants are typically detained pending their proceedings at Varick Street Immigration Court—while ICE “continue[s] [its] efforts to augment the VTC capacity at that facility.” And as recently as February 2019, the NY Field Office has occasionally produced some immigrants detained at Hudson County Jail for in-person hearings at 26 Federal Plaza, in order to avoid problems caused by VTC. However, the ICE NY Field Office has made clear that it seeks full implementation of VTC-only hearings for all detained immigrants within its custody. Defendants’ temporary and piecemeal production of certain detained immigrants due to the problems caused by VTC is an implicit concession that Defendants’ implementation of VTC has been inadequate and jeopardizes the constitutional and statutory rights of detained immigrants. The piecemeal approach also leads to chaos and unpredictability that further interferes with the rights of detained immigrants and the Organizational Plaintiffs.
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Defendants’ Shifting Policy Justifications 77. Defendants’ justifications for the Refusal to Produce Policy have been inconsistent and have shifted repeatedly over time. These purported justifications are merely pretext for the true reasoning behind the Policy—limiting due process, access to the courts, and counsel for immigrants in an effort to rush deportations and deport more people. 78. On June 24, 2018, President Trump responded to the national uproar over his administration’s family-separation policy by tweeting that immigrants who enter the United States without authorization should be deported without due process.18
79. ICE implemented its Refusal to Produce Policy just three days later. ICE suggested that the Varick Street protest posed safety threats to ICE employees, court personnel, detained immigrants, and the general public, and that the Refusal to Produce Policy aimed to protect all involved. However, ICE did not identify any specific threats, all reports indicated that the protest was peaceful, and the limited protest ended the same day ICE offered this justification.
80. On July 5, 2018, President Trump’s again tweeted that unauthorized immigrants should be removed from the country without access to courts.19
18 Donald Trump (@realDonaldTrump), Twitter (June 24, 2018, 11:02 AM), https://twitter.com/realdonaldtrump/status/1010900865602019329.
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81. On July 24, 2018, long after the Varick Street protest ended, ICE re-characterized the purpose and effect of the Policy, explaining that although “[t]he protests may have cleared, [] the misinformation and threats against ICE employees have continued.”20 ICE did not—and to this day has not—identified either any threats against ICE employees or any alleged misinformation.
19 Donald Trump (@realDonaldTrump), Twitter (July 5, 2018, 7:08 AM), https://twitter.com/realdonaldtrump/status/1014873774003556354; Donald Trump (@realDonaldTrump), Twitter (July 5, 2018, 7:16 AM), https://twitter.com/realdonaldtrump/status/1014875575557804034. 20 Steven Trader, Immigrants’ In-Person Hearings Halted in NYC, Dems Ask Why (July 24, 2018), https://www.law360.com/articles/1066269/immigrants-in-person-hearings-halted-in-nyc-dems-ask-why.
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82. On July 31, 2018, ICE changed its story yet again. ICE stated for the first time that the Policy was “not specific to protesters at the Varick Street location,” contradicting its earlier statements, and that the Policy was “not a punishment or retaliation in any way.”21 Nonetheless, ICE returned to its original explanation, arguing that the Policy was implemented not only to protect ICE employees, but to ensure the safety of the court, the public, and the detainees.
83. In late September 2018, the ICE NY Field Office admitted that the Policy was originally implemented “in response to protests, threats, and the possibility of court cancellations,” but provided, for the first time, a post hoc rationale: ICE’s refusal to produce detained immigrants was continuing because it was “far more cost effective.” Defendants provided no cost studies or other data to support this newly-offered justification. Nor have Defendants released information about the costs incurred because of the Policy, such as expenses related to adopting and maintaining the technology or the financial costs of detaining individuals whose proceedings are prolonged due to VTC-related delay.
84. In late October 2018, the ICE NY Field Office offered another new explanation— that the policy shift is part of a larger nationwide plan to stop producing detained immigrants in court—and claimed that the June 2018 protests expedited the implementation. The ICE NY Field Office further represented that a continuing threat to safety stemming from the protests is not the reason for maintaining the Policy. Instead, Defendants provided the vague justification that the Policy is warranted by cost-effectiveness, efficiency, public or officer safety, and mitigation of risk.
21 Emma Whitford, More Than a Month After Anti-ICE Protests, Detained NYC Immigrants Still Denied In-Person Hearings (July 31, 2018), https://theappeal.org/more-than-a-month-after-anti-ice-protests-detained-nyc-immigrantsstill-denied-in-person-hearings/.
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85. In early November 2018, the ICE NY Field Office reverted to its original rationale, implying that security and safety concerns were the chief motivation behind the policy change, pointing to the June 2018 protests, a 2015 breach of security unrelated to transporting immigrants to the Court, and three court cancellations due to inclement weather in 2017 and 2018.
86. No protests have been reported at the Varick Street Immigration Court since the peaceful and lawful demonstrations in June 2018, and ICE has not identified any ongoing safety threat. Meanwhile, proceedings in the immigration courts have been thoroughly disrupted by the use of VTC, creating a far less efficient system that has resulted in repeated delays and adjournments in removal proceedings for detained immigrants in Defendants’ custody.
Government Study Concludes VTC Causes “Due Process Issues” 87. In April 2017, Defendant EOIR commissioned a study of the United States’ immigration system and the growing number of pending cases in the immigration courts. The study specifically examined the use of VTC as a means for conducting immigration hearings. 88. The EOIR Report also recognized that “[i]t is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC.”22 89. The EOIR Report went so far as to state that “[f]aulty VTC equipment, especially issues associated with poor video and sound quality, can disrupt cases to the point that due process issues may arise.” It found that 29 percent of staff reported that VTC caused “a meaningful delay in their ability to proceed with their daily responsibilities.”23
22 EOIR Report at 23. 23 Id.
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90. Because of the due process issues caused by VTC, the EOIR Report advised against the blanket use of VTC, recommending instead that use of VTC should be limited to “procedural matters.”24
91. The EOIR Report is not alone in concluding that the blanket use of VTC—the very system Defendants seek to use for all detained immigrants in the custody of the ICE NY Field Office—creates due process problems. A June 2017 Government Accountability Office study of immigration court backlogs and operational challenges (“GAO Study”) expressed concern that the use of VTC in lieu of in-person hearings “could have an effect on the outcomes of those immigration hearings.”25
92. The GAO Study reported that “immigration court officials, experts, and stakeholders . . . expressed concern that the use of VTC technology poses challenges for holding immigration hearings” and noted that court officials conducting hearings via VTC regularly encountered “difficulties maintaining connectivity, hearing respondents, exchanging paper documents, conducting accurate foreign language interpretation, and assessing the demeanor and credibility of respondents and witnesses.”26
93. Immigration court officials interviewed for the GAO Study conceded that “they had changed their assessment of a respondent’s credibility that was initially made during a VTC hearing after holding a subsequent in-person hearing.”27
24 Id. 25 Immigration Court: Actions Needed to Reduce Backlogs and Address Long-Standing Management and Operational Challenges, GAO 17-438 at 157 (“GAO Study”), https://www.gao.gov/assets/690/685468.pdf. 26 Id. at 55. 27 Id.
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94. The report noted that one immigration judge “does not like to hold VTC hearings because it is sometimes hard to hear and fully comprehend what is being said over VTC, which, according to this judge, can make it difficult to assess the respondent’s demeanor and credibility.”28
95. In addition to these studies, line attorneys for Defendant DHS have recently made the same argument. In opposing motions for telephonic testimony by a third-party expert witness, they have asserted that “[t]he optimal way of conducting a trial is for the witness to appear in person in court to face both parties and to be subject to cross-examination in their presence.” This is all the more true when it comes to the testimony of individuals subject to the removal proceedings, for whom the credibility determination is paramount.
96. Indeed, the numerous problems with VTC identified by the EOIR Report, GAO Study, and Defendant DHS are the exact problems suffered by Plaintiffs and the Putative Class. Assistant Chief Immigration Judge (“ACIJ”) Daniel Daugherty has even submitted a declaration in a separate case in this District, Vazquez Perez v. Decker, Case No. 1:18-cv-10683, in which he attests to this very fact. He states that Defendants’ Policy “has created challenges in getting enough access to [VTC] lines” for “a majority of individuals scheduled for initial hearings at Varick Street.” Declaration of the Honorable Daniel J. Daugherty at 9, Vazquez Perez v. Decker, (S.D.N.Y. Jan. 28, 2019), Case No. 1:18-cv-10683 (Doc. 67). The declaration explains that when Defendants implemented their policy, “only one of three VTC lines in Bergen County Jail was operable, and had to be shared with state county courts, which limited the number of hearings that Varick Street could hold.” Id.
28 Id. at 58.
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97. A memorandum of law filed in that case by the U.S. Attorney for the Southern District of New York further concedes that ICE’s refusal to produce detained immigrants “to the Varick Street Immigration Court for proceedings” has “created challenges for the timely scheduling of hearings.” Memorandum of Law in Opposition re: Motion for Preliminary Injunction at 21, Vazquez Perez v. Decker, Case No. 1:18-cv-10683 (Doc. 71).
Defendants’ Policy Harms the Representative Plaintiffs and Putative Class 98. Defendants’ Policy impedes detained immigrants’ rights to due process, access to courts and counsel, and associated statutory rights. Under the Policy, Representative Plaintiffs and the Putative Class are neither provided the opportunity to fully participate in their proceedings nor have they had adequate access to confidential communications with counsel. The rampant technical failures of Defendants’ VTC-only hearings violate Representative Plaintiffs’ due process rights afforded by the Constitution and the INA.
Defendants’ Policy Causes Repeated Adjournments 99. The Refusal to Produce Policy causes repeated adjournments that substantially delay the resolution of immigration cases due to limited VTC lines and technological failures, needlessly prolonging detention. 100. Hudson County Jail has only three VTC lines while the other two facilities, Bergen and Orange, have only one line each. These lines can each only be used for a single VTC call at a time.29
29 Defendants have repeatedly recognized the need for additional VTC lines. In late October 2018, the ICE NY Field Office stated that it would be increasing to four VTC lines at Hudson within in a matter of days and an increase to three lines at Bergen was not far behind. The ICE NY Field Office reiterated this promise about additional VTC lines at Hudson and Bergen in early November. To date, ICE has not activated the promised additional lines at any of the facilities where immigrants are confined. Although additional VTC lines would allow for more efficient hearings, they would not resolve most of the problems described herein, including the disruption of attorney-client communications, credibility assessments, and the ability of detained immigrants (especially those with disabilities) to review evidence, present their testimony, and fully participate in their proceedings.
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101. The result of the shortage of VTC lines and, perhaps more importantly, the result of the regular failure of the technology, is severe: immigration judges routinely delay scheduled proceedings for hours or adjourn them altogether because no line is available, while the detained immigrants sit in county jails, disconnected from the courtroom where they were scheduled to appear.
102. Relatedly, technical failures with the jail VTC lines regularly require immigration judges to adjourn hearings that otherwise might have been completed in a single appearance.
103. Detained immigrants often have to wait to learn about the status of their case until a NYIFUP attorney can come to the jail to meet with them, which often cannot happen until days after a scheduled hearing. This in turn impedes the client and attorney’s ability to prepare their case.
104. ICE’s refusal to produce detained immigrants frequently causes adjournments in hearings that prolong detention by months. For example, Representative Plaintiff R.F.J.’s individual hearing was initially scheduled for August 15, 2018, some eight months after they were first detained. Because R.F.J’s testimony about their experiences in their country of origin was central to their asylum application, R.F.J. filed a motion for them to be produced in person to the Varick Street Immigration Court. R.F.J. was not produced and was not able to testify at all because another judge was using the only VTC line to Bergen that day. As a result, R.F.J.’s individual hearing was rescheduled to November 23, 2018, meaning that R.F.J. would be detained for an additional three months before their case could be heard.
105. On November 23, 2018, the court was able to connect with R.F.J. over VTC, but R.F.J. was unable to present all of their evidence in the time allotted. Due to the backlog on the
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Varick docket caused by the limited number of VTC lines, R.F.J’s case was continued an additional four months to March 22, 2019, while R.F.J. remains in detention.
106. Representative Plaintiff J.C. is cognitively impaired. J.C.’s individual hearing was originally scheduled for November 2018, but the immigration judge was unable to connect to the Hudson County Jail, so the hearing was rescheduled to January 9, 2019. Because the immigration judge had scheduled more hearings on January 9 than could be accommodated by the limited number of VTC lines, J.C.’s proceedings were postponed yet again. J.C. had a competency hearing on January 18, 2019, at which point his individual hearing was scheduled for the next available date, on March 12, 2019.
107. Representative Plaintiff K.T. was scheduled to appear before the immigration judge on November 20, 2018. ICE refused to produce K.T. to the Varick Street Immigration Court from the Orange County Jail. K.T. arrived at the VTC office in the jail for his appearance around 8:30 a.m., at which point an officer at the jail told K.T. to wait.
108. That morning, K.T.’s immigration judge had previously connected to the sole VTC line at the Bergen County Jail. The judge explained to K.T.’s attorney that he did not want to disconnect from the Bergen line in order to connect to the Orange line for fear that another judge would begin using the only Bergen line. About three and a half hours after K.T. arrived at the VTC office, the officer at the Orange County Jail called Varick to ask when K.T.’s case would be heard. K.T. learned that his attorney had appeared and that his case was adjourned, in part because K.T. was not present. K.T.’s individual hearing is now scheduled to take place in April 2019.
Defendants’ Policy Prevents Detained Immigrants from Participating in their Proceedings 109. None of the county jails where the Putative Class members are detained have
sufficient VTC capability to meet the demands of the New York Field Office’s detained docket.
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Technological failures have been rampant since the implementation of the Policy, frequently creating sound and sight barriers between the courtroom and the detained immigrants. Even if Defendants were to provide additional VTC-connected rooms at detention facilities, the widespread and systemic shortcomings of the VTC system would not be remedied.
110. For example, detained immigrants are often only able to see a narrow slice of the courtroom and the camera often does not track if a different person—including their attorney or the government’s attorney—begins to speak.
111. Similarly, when a speaker moves even inches away from a microphone, it becomes difficult for detained immigrants to hear over VTC and sound often cuts out entirely, causing the detained immigrants to miss critical testimony or instructions from the judge.
112. Often, the detained immigrants cannot object because they do not realize they are missing some aspect of the proceeding since they cannot see or hear the person who is speaking. Therefore, they cannot know whether the person said something that they missed.
113. Unreliable technology also causes breaks in the video or audio feed. These limitations are significantly compounded when the individual requires foreign language interpretation. Immigration judges are therefore required to determine the fate of immigrants who they often cannot see or hear and whose credibility they cannot reliably assess.
114. Due to the failure of the VTC technology, attorneys are frequently forced to choose either to waive their client’s right to appear, or to request an adjournment that subjects their client to additional and potentially unnecessary detention. Immigration judges often encourage attorneys to waive their clients’ right to appear to avoid a continuance of several months, thereby undermining the detained immigrants’ right to fully and meaningfully participate in the proceedings.
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115. For example, Representative Plaintiff A.R.B., who is detained at Bergen jail, was scheduled for a master calendar hearing on November 29, 2018. ICE refused to produce A.R.B. in person that day, and because of a VTC malfunction, A.R.B. was unable to participate in the hearing in any capacity. Rather than explain to A.R.B. that his hearing had been delayed because of problems with the VTC connection, an ICE officer at the jail falsely told him it was because his attorney was not in court.
116. A.R.B.’s case was then adjourned to the next day. The following day, the court tried for three hours and again failed to connect with A.R.B. over VTC because another judge was using the one VTC line to Bergen all day. To avoid continued delays to schedule a master calendar hearing, A.R.B.’s appearance was waived so that the court could schedule an individual hearing date. A.R.B.’s individual hearing is now scheduled for March 20, 2019.
Defendants’ Policy Prevents Detained Immigrants from Retaining Counsel, Reviewing Evidence, and Assisting in their Cases
117. Because of the Policy, Representative Plaintiffs and the Putative Class members cannot effectively assist in their own defense in these proceedings.
118. In the first instance, attorney intake of potential clients has become severely disrupted. Before the Refusal to Produce Policy, NYIFUP attorneys could meet with potential clients at the Varick Street Immigration Court before their initial appearances.
119. Under the Policy, the shortage of VTC lines routinely interferes with the ability of NYIFUP providers to intake detained immigrants prior to their initial hearings. Attorneys cannot generally screen prospective clients ahead of their first court appearances, except in very limited circumstances. The only way detained immigrants can retain an attorney before their initial appearance is if attorneys are able to travel to the jails or if immigration judges allow attorneys to use limited VTC lines in their courtrooms when they are not in use for court proceedings.
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120. Because neither scenario is effective in practice, detained immigrants must often appear pro se for their initial appearances. Indeed, on several occasions in December 2018, VTC line shortages resulted in detained immigrants being forced to appear pro se at their initial hearings because NYIFUP providers were not able to screen these potential clients prior to the start of the hearings.
121. And although attorneys are usually unable to conduct intake screening interviews over the VTC system, on the occasions that they are provided that opportunity, the presence of other people in both the courtroom and the detention centers significantly compromises confidentiality.
122. Importantly, NYIFUP attorneys are often unable to access their prospective clients’ files and the government’s evidence against them prior to their first court date since they can no longer obtain the necessary signed waivers during intake before the detained immigrants’ initial appearances. Therefore, attorneys have no way to assess potential clients’ cases or advise them prior to their first appearance. This impedes the ability of detained immigrants to make informed decisions at their initial appearance. It is also inefficient and ineffective for both clients who will continue to oppose their removal and for those who may choose to accept an order of deportation. The latter group cannot be made aware of that option or express their willingness to do so to counsel. As a result, those detained immigrants are subject to unnecessary prolonged detention.
123. For example, detained immigrant N.A.R.’s attorney was not able to obtain evidence related to his case from the government until several weeks after he first appeared. Upon review of the evidence, N.A.R.’s attorney determined that his case would result in mandatory detention and he would be ineligible for bond. If N.A.R.’s attorney had been able to
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review his case and advise him of this important fact at intake, N.A.R. may have taken an order of removal on his first appearance. Instead, N.A.R. waited an additional month in detention only to take removal at his second scheduled hearing.
124. In addition, people detained by ICE are sometimes unaware that they are actually U.S. citizens, non-deportable lawful permanent residents, or even eligible for immigration relief. Before the Policy, NYIFUP attorneys could advise these people of their grounds to remain in the country before their initial appearance. Under the Policy, there is no opportunity for NYIFUP attorneys to timely advise such individual of their options, and some may accept orders of deportation at their initial appearance.
Defendants’ Policy Prevents Confidential Communications with Counsel 125. The Policy restricts the Representative Plaintiffs and Putative Class members’ ability to communicate confidentially with counsel. 126. As described above, Defendants’ Policy severely impedes detained immigrants’ ability to obtain and consult with counsel before their first-scheduled court appearance. Now, attorney-client communications generally take place only when attorneys are able to access and speak with potential clients in county jails or over limited VTC lines. 127. The Policy also severely limits the ability of NYIFUP attorneys to engage in confidential meetings with their clients throughout the representation. Because ICE refuses to produce detained immigrants to Varick Street Immigration Court for their proceedings, attorneys can no longer consult with their clients in person at the court. 128. Under the Policy, confidential meeting space at the county jails is even more limited than it was before. Yet even when confidential meeting space is available, NYIFUP attorneys must compete for that space with criminal defense attorneys or other immigration
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attorneys meeting with their clients in the same facility, causing delays and long wait times and leading to hurried, limited meetings between counsel and client.
129. Because ICE has not provided adequate confidential meeting space for detained immigrants to meet with their attorneys, NYIFUP attorneys must frequently resort to using VTC lines to relay important information to their client. Those discussions, when not disrupted by technical failures, are not reliably confidential and are often interrupted by other people entering the courtroom.
130. Opportunities for confidential communications during immigration court proceedings are even further compromised. There is no way for detained immigrants to speak confidentially with their lawyers in the courtroom without suspending the entire proceeding and the court’s docket. Because lawyers and their clients can no longer conduct brief confidential discussions or review documents privately in person, everyone—the judge, court staff, government attorneys, witnesses—must clear the courtroom so that the attorney and client can speak over the courtroom’s VTC line. However, judges are often reluctant to clear the courtroom for such communications, and typically adjourn the case for weeks or months to avoid delaying all other proceedings scheduled for the day.
131. In contrast, when clients who were produced in person needed to speak with their attorneys during the proceeding, the attorney could ask for the case to be suspended until second call later in the day. At that point, the attorney could meet with the client in the private attorneyclient meeting space outside the courtroom. Meanwhile, the immigration judge could continue working through their docket.
132. On occasions when a judge does clear the courtroom to provide for an attorneyclient discussion, the discussion is limited in time and is rarely confidential as attorneys,
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courtroom clerks, and judges often pass through the courtroom or can hear the discussion on the other side of closed doors. At times, government attorneys have refused to leave the room to allow for confidential communications with the client. Moreover, officers from the county jails and ICE frequently enter the rooms where the detained immigrants are located during such VTC calls.
133. For example, Representative Plaintiff P.L. has been forced to appear by VTC for four immigration hearings. On two occasions, P.L. was asked questions by the immigration judge that he did not fully understand. P.L. wanted to confer with his attorney to make sure he understood the questions. But because P.L. was appearing over VTC, he could not speak with his attorney confidentially before answering the immigration judge.
134. Likewise, during a master calendar hearing on September 14, 2018, the attorney representing detained immigrant J.S.V. asked to speak with her client confidentially to decide whether to ask for an adjournment to seek relief or accept an order of deportation that day. Because ICE refused to produce J.S.V. in person, the immigration judge agreed to clear the courtroom and allow J.S.V. to speak with his attorney confidentially via VTC. Nonetheless, the judge and the government attorney entered the room several times during the short conversation, compromising the confidential nature of the communications. J.S.V. accepted the order of deportation that day and was subsequently deported.
135. During his hearings over VTC, Representative Plaintiff K.T. appeared from a VTC room in the Orange County Jail that ICE officers also use as an office. The screen for the VTC connection was on one side of a table and the ICE officers’ computer screen was on the other side of the same table. ICE officers remained in the room during K.T.’s hearings. Further, a chair was stationed directly outside the office door for the next detained immigrant waiting for
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their VTC hearing. The door has remained open during K.T.’s hearings and it was possible for the person waiting outside to overhear the court proceedings being broadcast via VTC.
136. Instead of clearing a courtroom, many immigration judges simply adjourn cases— sometimes for months—to facilitate the need for a client to confer confidentially with their attorney and allow the court to move on to the next case on the docket. This often occurs regardless of the length of time needed by the attorney and client to confer, and uniformly results in additional time in the county jail.
137. Detained immigrants and their attorneys are thus frequently faced with an impossible choice between engaging in confidential, necessary communications that will delay their case and result in prolonged detention versus proceeding without those conversations, thereby missing information that could be critical to preserving their rights.
138. Before the Policy, these types of confidential communications—intake interviews and eligibility determinations, signing retainer agreements, and attorney-client consultations during hearings—were routinely completed without adjournments.
Defendants’ Policy Prevents Effective Foreign Language Interpretation Services 139. The issues surrounding VTC are compounded in proceedings that require the use of foreign language interpreters. Because of their absence from the courtroom and ICE’s failure to provide an adequate system of interpretation, the Putative Class members are unable to effectively communicate with interpreters in the courtroom. 140. Under the Policy, interpretation over VTC is delayed and difficult, if not impossible, to understand, and immigration judges often urge attorneys forego simultaneous interpretation. Interpreters often resort to consecutive interpretation, which refers to interpretation provided after a delay, with attorneys, judges, and other witnesses pausing after a
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sentence or two of speaking in order for the interpreter to interpret. Consecutive interpretation is less effective, less accurate, and results in unnecessarily long proceedings that can often necessitate adjournments.
141. The impact is even more severe for detained immigrants who require telephonic interpretation because an in-person interpreter who speaks the relevant language is not available. In those cases, an interpreter in a remote location interprets the court proceedings over a phone line piped into the courtroom.
142. Thus, detained immigrants participating in the hearings lack a direct line to interpreters—the connection travels over the interpreter’s phone line, through the courtroom speakers, is picked up by microphones in the courtroom, and then through the VTC line. The issue similarly impacts interpreters’ ability to hear the detained immigrants, as the connection must first travel over VTC and then through the phone line. Hearing telephonic interpretation clearly through both a VTC line and a telephone line is nearly impossible for detained immigrants and for the interpreters.
143. During a July 31, 2018 hearing, one immigration judge had to adjourn proceedings because the interpreter—conducting interpretation by speakerphone into the courtroom—heard feedback and could not follow what was happening in the courtroom. Meanwhile, the respondent in the case strained to hear the interpretation through the VTC connection. After the detained immigrant’s attorney noted multiple interpretation errors on the record, the immigration judge adjourned the proceeding.
Defendants’ Policy Impedes Credibility Assessments by Immigration Judges 144. The Refusal to Produce Policy creates additional, often insurmountable, hurdles to assessing credibility, a critical component of many immigration proceedings. Outcomes in
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immigration cases frequently depend on the immigration judge’s ability to evaluate whether the detained immigrants testified credibly and persuasively.
145. An immigrant facing removal always has “the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion.” 8 C.F.R. § 1240.8(d). The immigrant’s credibility is critical to meeting that burden.
146. In the case of asylum and other claims for discretionary relief, an immigration judge’s credibility determination decides an immigrant’s fate; that credibility determination can dictate whether the individual will be able to stay in the United States exiled to a place where they fear persecution. Indeed, an immigration judge may grant an application for asylum based on credible testimony alone. See Matter of Dass, 20 I. & N. Dec. 120, 124 (BIA 1989); see also 8 C.F.R. § 208.13(a).
147. Because ICE refuses to produce detained immigrants in person, immigration judges must make critical determinations based on blurry images or unclear voices that are frequently interrupted by technical failures and logistical difficulties.
148. Immigrants also often face impediments to providing complete testimony during hearings held over VTC that impact a judge’s ability to assess their credibility. Detained immigrants testifying from jail are forced to testify in rooms that are not private, either due to the presence of ICE officers or other inmates, or allegedly private booths that are not soundproof and where they can be overheard by facility staff or other detained individuals.
149. The presence of those officers and other detained people—whom the immigration judge cannot see, since they are typically outside the video frame—can serve as a deterrent to a
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detained immigrant who seeks to testify about the conduct of government officials or about sensitive aspects of his identity or past that he does not wish others in the jail to learn.
150. For example, Representative Plaintiff A.Q. was scheduled to appear on August 1, 2018 for an individual hearing where the immigration judge would consider his application for relief under the Convention Against Torture. ICE refused to produce A.Q. in person, leaving the only option to appear by VTC.
151. During the hearing, A.Q. asked the officers stationed outside the room where he was testifying to close the door. When they ignored his request, A.Q. told the judge that the door was open and he was uncomfortable because of the sensitive nature of his testimony.
152. The judge told A.Q. to ask the officers to close the door, but again he was ignored. After repeated requests, the judge summoned the officers into the room where A.Q. was testifying and instructed them to close the door.
153. At that point, the officer removed the doorstop but left the door ajar. A.Q. repeated the judge’s instruction to the officer, who responded that the officer needed to be able to hear the proceeding.
154. A.Q. was forced to choose between reiterating the judge’s instruction to the officer (and possible retaliation from the officer) and proceeding with sensitive testimony in front of the officers. A.Q. decided to continue his testimony. When the DHS lawyer asked about his sexual orientation, A.Q. wanted to clarify his answer and provide additional context but was afraid to do so because of the presence of the officers.
155. Because ICE refused to produce A.Q. in person for the hearing, and because a jail officer remained within earshot, he felt uncomfortable providing relevant information to his application for relief via VTC. The judge was therefore not able to properly evaluate A.Q.’s fear
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of returning to his country of origin or the weight of evidence that he presented. The court ultimately denied A.Q.’s petition under the Convention Against Torture on grounds that his claims were speculative.
156. Similarly, Representative Plaintiff R.F.J.’s proceedings involve testimony regarding deeply personal matters relating to their sexual orientation and gender identity. Under the Policy, R.F.J. will likely have to present that testimony while accompanied by ICE officers in the VTC room at Bergen. R.F.J. believes that the officers may share R.F.J’s story with other officers or inmates and subject R.F.J. to worsened harassment within the jail. R.F.J. fears that the presence of officers will affect their ability to provide their full testimony.
Defendants’ Policy is Particularly Harmful to Detained Immigrants with Disabilities 157. The impact of these negative effects is multiplied for individuals with disabilities. Defendants’ Policy increases the risk that individuals with disabilities will not be identified or will not be able to adequately access the court or their attorneys. 158. Poor video and audio quality on VTC lines often causes severe cognitive and intellectual disabilities to go unnoticed. For those immigrants who are unrepresented or interacting with their attorneys for the first time over a VTC line, signs of cognitive impairment—often marked by poor motor skills—are difficult to observe and thus can be overlooked by attorneys and judges with only a narrow view of the person’s head. 159. The GAO Study reported that one immigration judge conceded he was unable to identify a respondent’s cognitive disability when conducting the proceeding via VTC, but that the impairment was “clearly evident” in person.30 Defendants’ Policy renders such in-person observations impossible to the significant detriment of Putative Class members.
30 GAO Study at 55.
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160. Even when a detained immigrant’s disability is identified, Defendants’ Policy prevents them from receiving necessary accommodations that would allow them to adequately participate in their removal proceedings.
161. Representative Plaintiff P.L. has been diagnosed with unspecified schizophrenia spectrum and other psychotic disorder. He has indications of significant cognitive defects, especially concerning attention, memory, and visual and spatial abilities. However, his disability is not immediately evident to people interacting with him.
162. After his arrest by ICE, P.L. appeared in person at the Varick Street Immigration Court on June 7, 2018, prior to the adoption of the Policy. During that hearing, he was able to see and hear the judge clearly, communicate with the court via Spanish-language interpretation, and ask questions about issues he did not understand.
163. Since the implementation of the Policy, ICE has refused to produce P.L. in person for four hearings in his immigration case. Instead, P.L. participated in the hearings over VTC.
164. During each hearing, P.L. relied on a Spanish-language interpreter to understand what was happening in the immigration court. Because of poor sound quality over the VTC line, P.L. has had difficulty hearing the interpretation. That difficulty is further complicated because the interpreter is not visible on the VTC screen. When the interpreter tries to provide simultaneous, as opposed to consecutive, interpretation, the problem is even more severe.
165. When P.L. watches a hearing by VTC, he can only see the judge, not the interpreter or either of the attorneys. Because of his mental illness and cognitive difficulties, P.L. has difficulty focusing. Appearing by VTC exacerbates these challenges.
166. Representative Plaintiff A.Q. has been diagnosed with PTSD and has borderline intellectual functioning. He has a low IQ but high adaptive functioning, i.e., he can generally
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take care of himself, and his disabilities are not immediately apparent to those who interact with him.
167. A.Q. was scheduled to appear on August 1, 2018 for an individual hearing where the immigration judge would consider his application for relief under the Convention Against Torture. The judge would not have been readily able to ascertain that A.Q. had cognitive issues from the VTC feed. His attorney argued that he should be produced in person. The request was denied, and A.Q. appeared via VTC. His application for relief was ultimately denied, and he is now appealing the decision.
168. Representative Plaintiff B.M.B. has been diagnosed with PTSD, major depressive disorder, and a major neurocognitive disorder due to a traumatic brain injury. These disorders mean that B.M.B. has difficulty remembering and understanding events he must testify about as part of his application for relief. As a result of his mental health status, B.M.B. also has an erratic speech pattern, which has made working with interpreters difficult.
169. B.M.B.’s individual hearing was originally scheduled for September 11, 2018, but it was delayed to October 2018 due to scheduling difficulties. During the October hearing, B.M.B. testified by VTC about traumatic events he experienced as a child as well as his fear of returning to his country of origin. At multiple points during his testimony, he sobbed uncontrollably for several minutes each time.
170. Although the immigration judge took short breaks in response, no one was with B.M.B. to console him. B.M.B.’s direct testimony continued for about two hours, lengthened in part because the interpreter had difficulties following B.M.B.’s speech pattern. This meant that
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there was not sufficient time to complete his case, and B.M.B.’s hearing was continued to January 15, 2019, approximately four months later.31
171. Ultimately, the immigration judge found B.M.B.’s testimony about his fear of returning to his country of origin not credible and denied him relief. B.M.B. is appealing the decision and seeks a remand for new proceedings before the immigration judge.
172. Representative Plaintiff J.C. has a cognitive impairment and has difficulty focusing during proceedings. After evaluating J.C., his psychologist concluded that J.C. does not “perform well with any situations that are unfamiliar to him” and therefore that “the use of any electronic or virtual communication will have serious repercussions on his performance.”
173. During J.C.’s competency hearing on January 18, 2019, the immigration judge expressed concern that there would be a violation of “due process and fundamental fairness” if J.C. appeared for his merits hearing over VTC, given his mental limitations. The immigration judge stated that, given the psychologist’s testimony, “[i]f he appears via video, I see a problem with that. I have to protect his constitutional rights and I have an expert who told me that this guy shut down when he interviewed him because of certain technical type issues.” As the immigration judge noted, “clearly the VTC format would add to that stress for anybody, particularly somebody with first grade level cognitive abilities.”
174. Recognizing that the use of VTC may violate J.C.’s constitutional rights, the immigration judge urged ICE to transfer J.C. to the Bergen County Jail before his merits hearing so that he could be produced in person (pursuant to Defendants’ temporary practice of producing immigrants detained at Bergen). The immigration judge stated: “His ability to see what’s going
31 B.M.B. presented his direct testimony by VTC in October 2018. But because of Defendants’ temporary resumption of in-person production at Bergen, B.M.B. was cross-examined in person at Varick Street Immigration Court on January 15, 2019.
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on here is quite limited, which because of his limited cognitive functioning in my opinion will clearly add stress. I’m getting all this just from him being there on the screen today, so it stands to reason that if we do a video hearing and [he] starts getting asked cross examination questions, his anxiety is going to ramp up. I think clearly the government should transfer him to Bergen, so that way he’s physically produced for the hearing.”
175. Despite the immigration judge’s significant and express concerns about the use of VTC in J.C.’s case, the judge did not exercise his authority to order in-person production for J.C.’s merits hearing. J.C. has not been transferred by ICE. His individual hearing is scheduled for March 12, 2019
Defendants’ Policy Harms the Organizational Plaintiffs 176. Defendants’ Policy has also had a severe negative effect on the NYIFUP program. 177. Specifically, the Policy directly increases the time and cost that the Organizational Plaintiffs expend to provide effective legal services to detained immigrants. As a direct result of the Policy, the Organizational Plaintiffs can no longer screen them for eligibility, conduct initial interviews, or obtain the necessary documents at the time of their initial appearance in immigration court. 178. Instead, NYIFUP attorneys must drive to county jails outside New York City for the sole purpose of conducting eligibility interviews. 179. Nor can NYIFUP attorneys engage in confidential communications with their clients at the courthouse after their case has commenced. They must instead travel to the jails where their clients are held. 180. NYIFUP attorneys typically rent cars to visit their clients, costing the Organizational Plaintiffs thousands of dollars each month.
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181. Because of travel time and the shortage of confidential meeting space in the jails, even a 15-minute conversation with a client regularly takes NYIFUP attorneys away from the office for four or five hours.
182. BDS, BxD, and LAS have each represented and will each represent hundreds of detained immigrants who are adversely affected by the Policy.
183. Defendants’ Policy also interferes with the Organizational Plaintiffs’ ability to represent their clients during hearings. Because NYIFUP attorneys often represent clients from several different jails during the same day, they must be physically present in court while their clients appear over VTC. As a result, NYIFUP attorneys cannot confer with their clients during the proceedings or show them the evidence that is being presented.
184. If a NYIFUP attorney wishes to have a confidential discussion with a client, the proceedings must be paused and the entire courtroom must be cleared, a practice that does not ensure confidentiality and which judges are disinclined to allow given their overcrowded dockets. Often, judges will adjourn the entire proceeding and schedule it for weeks or months later.
CLASS ALLEGATIONS 185. Representative Plaintiffs P.L., A.Q., K.T., R.F.J., A.R.B., B.M.B., and J.C. seek to bring this action on their own behalf and on behalf of a class of those similarly situated pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure and related to Counts 1-6 (“Class Claims”). 186. The proposed Plaintiff Class is defined as: “All individuals who are now, or will in the future be, detained by the ICE NY Field Office for removal proceedings and who ICE
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and/or EOIR has not produced or will not produce in person for those proceedings pursuant to Defendants’ Refusal to Produce Policy.” (“Plaintiff Class”).
187. A subclass of persons with disabilities bringing claims under the Rehabilitation Act of 1973 is defined as “All individuals who are now or will in the future be detained by the ICE NY Field Office for removal proceedings who have a disability, as defined by the Rehabilitation Act, and who ICE has not produced or will not produce in person for those proceedings because of Defendants’ Refusal to Produce Policy” (“Rehabilitation Act Subclass” or “Subclass”).
188. The Plaintiff Class and Rehabilitation Act Subclass meet all of the requirements of Federal Rule of Civil Procedure 23(a).
189. The Plaintiff Class meets the requirements of Federal Rule of Civil Procedure 23(a)(1) because it is so numerous that joinder would be impracticable. Although the precise size of the Plaintiff Class is unknown, it is comprised of at least thousands of immigrants who are now or will be detained by the ICE NY Field Office in connection with their removal proceedings and who are not being or will not be produced in person for those proceedings pursuant to the Policy. Just in fiscal year 2018, the ICE NY Field Office filed 1,777 new deportation proceedings at Varick Street Immigration Court, and more members are entering the Putative Class every day.32
190. The Rehabilitation Act Subclass meets the requirements of Federal Rule of Civil Procedure 23(a)(1) because it is so numerous that joinder would be impracticable. Although the precise size of the Rehabilitation Act Subclass is unknown, it is comprised of at least dozens of
32 See New Deportation Proceedings Filed in Immigration Court, TRACImmigration, https://trac.syr.edu/phptools/immigration/charges/deport_filing_charge.php.
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immigrants with disabilities who are now or will be detained by the ICE NY Field Office in connection with their removal proceedings and who are not being or will not be produced in person for those proceedings pursuant to the Policy. The government has previously acknowledged that 2 to 5% of all detained immigrants suffer from serious mental illness.33 Other sources suggest that the true number is much higher.34 Even adopting the conservative estimate, based on the current and growing number of cases at Varick Street Immigration Court, the Rehabilitation Act Subclass is sufficiently numerous.
191. The Plaintiff Class meets the requirements of Federal Rule of Civil Procedure 23(a)(2) because class members share common issues of law and fact including, but not limited to whether Defendants’ Policy violates the statutory and constitutional rights of the Class and Subclass members.
192. The Rehabilitation Act Subclass meets the requirement of Federal Rule of Civil Procedure 23(a)(2) because class members share common questions of law and fact including whether members of the class were entitled to accommodations under the Rehabilitation Act and were denied such safeguards by Defendants through implementation of the Refusal to Produce Policy.
193. The Plaintiff Class and Subclass meet the requirements of Federal Rule of Civil Procedure 23(a)(3) because the Representative Plaintiffs’ claims are typical of those of the
33 See Franco-Gonzalez v. Napolitano, No. CV 10-02211, 2011 WL 11705815, at *7 (C.D. Cal. Nov. 21, 2011) (“Plaintiffs also point to aggregate government data, reported by ICE in a May 2008 Washington Post article, in which the government estimated that 2–5% of immigrants in ICE custody suffer from serious mental illness.”) (citing Selected responses from ICE to questions posed by The Washington Post regarding the provision of mental health care to immigration detainees, May 2008, http://media.washingtonpost.com/wpsrv/nation/specials/immigration/documents/day3_ice_mentalhealth.gif (last visited Feb. 7, 2019)). 34 See ACLU, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System (July 2010) at 3, https://www.aclu.org/files/assets/usdeportation0710_0.pdf (estimating that “at least 15 percent” of the total immigrant population in detention has a mental disability).
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Plaintiff Class and of the Rehabilitation Act Subclass respectively. The injuries suffered by the Representative Plaintiffs and the Plaintiff Class and the Subclass arise out of the same policy of the Defendants, specifically the Refusal to Produce Policy. The Representative Plaintiffs’ claims are based on the same theories of law as the claims of the Plaintiff Class and Subclass.
194. The Plaintiff Class and Subclass meet the requirements of Federal Rule of Civil Procedure 23(a)(4). The Representative Plaintiffs will adequately represent the Plaintiff Class and Subclass because they have a strong personal interest in the outcome of this action, have no conflicts of interest with members of the Plaintiff Class or Subclass, and will fairly and effectively protect the interests of the Plaintiff Class and Subclass.
195. The Plaintiff Class and Subclass are represented by Brooklyn Defender Services, The Bronx Defenders, The Legal Aid Society, Wilmer Cutler Pickering Hale and Dorr LLP, and Debevoise & Plimpton LLP. Counsel for the Plaintiff Class and Subclass have the resources, expertise, and experience to prosecute this action, including expertise and experience litigating immigration law, civil rights, and class actions. Counsel for the Plaintiff Class and Subclass know of no conflicts among members of the Plaintiff Class and Subclass or between the attorneys and members of the Plaintiff Class and Subclass.
196. This action is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1) because the number of current class members is at least in the hundreds and the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, which in turn would establish incompatible standards of conduct for the Defendants. Additionally, the prosecution of separate actions by individual members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
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197. This action is also maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because the Defendants’ policies, practices, actions, and failures that form the basis of this complaint are generally applicable to all members of the Plaintiff Class and the Rehabilitation Act Subclass, and the injunctive and declaratory relief sought is appropriate and will apply to all members of the Plaintiff Class and Subclass.
COUNT ONE Denial of the Right to Procedural Due Process in Violation of the Due Process Clause of the
Fifth Amendment (Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass) 198. The allegations in paragraphs 1 – 197 are realleged and incorporated by reference. 199. The Due Process Clause of the Fifth Amendment forbids the government from depriving an individual of life, liberty, or property without due process of law. 200. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass have a significant liberty interest in being freed from immigration detention and ensuring that their immigration proceedings comport with due process. 201. Defendants’ Refusal to Produce Policy increases the risk that the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass will be detained for extended periods of time, unable to access available immigration relief, or improperly removed. 202. The costs and administrative burden of providing additional, and necessary, process to the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass is minimal and would avoid the risks created by the Defendants’ Policy. 203. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass have suffered and will imminently suffer irreparable injury as a result of Defendants’ Refusal to Produce Policy, and they are entitled to injunctive relief to avoid further injury.
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COUNT TWO Denial of Right to Counsel of Choice in Violation of the INA and APA (Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass) 204. The allegations in paragraphs 1 – 203 are realleged and incorporated by reference. 205. The Immigration and Nationality Act guarantees the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass “the privilege of being represented . . . by counsel of [their] choosing” in their removal proceedings. 8 U.S.C. § 1229a(b)(4)(A). 206. Under the Administrative Procedure Act, courts must “hold unlawful and set aside” agency action that is “not in accordance with law,” “contrary to constitutional right,” in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or that is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)-(D). 207. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass are represented by counsel, primarily attorneys provided through NYIFUP, in their removal proceedings. 208. Defendants’ Refusal to Produce Policy restricts the ability of the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass to associate with, seek counsel of, and communicate confidentially with their attorneys. 209. Defendants implemented the Policy in violation of the INA’s right to representation by counsel of choice without reasoned explanation and in contradiction of the evidence. 210. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass have suffered and will imminently suffer irreparable injury as a result of Defendants’ Refusal to Produce Policy, and they are entitled to injunctive relief to avoid further injury.
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COUNT THREE Denial of Right to a Full and Fair Hearing in Violation of the INA and APA (Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass) 211. The allegations in paragraphs 1 – 210 are realleged and incorporated by reference. 212. The Immigration and Nationality Act guarantees the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass “a reasonable opportunity to examine the evidence against [them], to present evidence on [their] own behalf, and to cross-examine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B). 213. Under the Administrative Procedure Act, courts must “hold unlawful and set aside” agency action that is “not in accordance with law,” “contrary to constitutional right,” in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or that is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)-(D). 214. Defendants’ Refusal to Produce Policy creates a substantial likelihood that the rights of the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass to a full and fair hearing under the Immigration and Nationality Act will be violated. 215. Defendants’ Policy creates a substantial risk that the errors will occur in the removal proceedings of the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass, and interfere with their rights to examine the evidence against them, to present their own evidence, and to cross-examine the Government’s witnesses. 216. Despite such harms, Defendants implemented the Refusal to Produce policy without reasoned explanation and in contradiction of the evidence. 217. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass have suffered and will imminently suffer irreparable injury as a result of Defendants’ Refusal to Produce Policy, and they are entitled to injunctive relief to avoid further injury.
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COUNT FOUR Denial of Right to Access Courts in Violation of the First and Fifth Amendments
(Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass) 218. The allegations in paragraphs 1 – 217 are realleged and incorporated by reference. 219. The Petition Clause of the First Amendment and the Due Process Clause of the Fifth Amendment guarantee the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass the right of access to courts and prohibits the government and its agents from unjustifiably obstructing that access. 220. This guarantee includes the right of the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass to communicate with their attorneys. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass therefore have a right to meaningful access to their attorneys in order to defend themselves in their removal proceedings. 221. The Representative Plaintiffs and members of the Plaintiff Class and Rehabilitation Act Subclass are represented by counsel through the NYIFUP program in their removal proceedings. 222. The Refusal to Produce Policy unjustifiably obstructs the ability of the Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass to access legal representation and interferes with other aspects of their right of access to the courts. 223. The Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass have suffered and will imminently suffer irreparable injury as a result of Defendants’ Refusal to Produce Policy, and they are entitled to injunctive relief to avoid further injury.
COUNT FIVE Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 (Representative Plaintiffs and Rehabilitation Act Subclass) 224. The allegations in paragraphs 1 – 223 are realleged and incorporated by reference.
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225. The Rehabilitation Act requires Defendants DHS and ICE to make reasonable accommodations for detained immigrants with disabilities to ensure they can access government benefits and opportunities. See Alexander v. Choate, 469 U.S. 287, 301 (1985) (“[A]n otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.”).
226. The INA and the Board of Immigration Appeals both contemplate numerous safeguards to ensure that a noncitizen is able to fully participate in immigration proceedings. See, e.g., 8 C.F.R. § 1240.4 (providing that an “attorney, legal representative, legal guardian, near relative, or friend . . . shall be permitted to appear on behalf of” an incompetent noncitizen); Matter of M-A-M-, 25 I. & N. Dec. 474, 483 (B.I.A. 2011) (noting that examples of “appropriate safeguards include, but are not limited to, . . . identification and appearance of a family member or close friend who can assist the [noncitizen] and provide the court with information; docketing or managing the case to facilitate the respondent’s ability to obtain legal representation and/or medical treatment in an effort to restore competency; [and] participation of a guardian in the proceedings”).
227. Representative Plaintiffs and members of the Plaintiff Class with cognitive and psychological disabilities (the Rehabilitation Act Subclass) qualify as persons with a disability for purposes of Section 504 of the Rehabilitation Act. See 29 U.S.C. § 794(a) (stipulating that “no otherwise qualified individual with a disability . . . , shall, solely by reason of her or his disability” be “denied the benefits of . . . any program . . . conducted by any Executive agency”); see also 29 U.S.C. § 705(20)(A) (defining “individual with a disability” to include a person who has a “mental impairment which . . . constitutes or results in a substantial impediment”).
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228. Defendants DHS, ICE, and EOIR are Executive agencies within the meaning of the Rehabilitation Act.
229. The Rehabilitation Act requires Defendants DHS, ICE, and EOIR to make reasonable accommodations for those class members with disabilities to ensure that they are able to access the same protections and benefits as other Plaintiff Class members, regardless of their disability. See 29 U.S.C. § 794(a) (requiring heads of Executive agencies to “promulgate such regulations as may be necessary” to prevent “individual[s] with disabilities” from “be[ing] denied the benefits of” federal programs “solely by reason of” their disabilities).
230. Despite the need to screen Plaintiff Class members for disabilities, the Refusal to Produce Policy prevents government officials, court staff, judges, and even attorneys from identifying those individuals who require a reasonable accommodation.
231. Even where Plaintiff Class members identify themselves, or their attorneys identify them, as individuals with disabilities in need of a reasonable accommodation in the form of in-person production, the blanket Refusal to Produce Policy disallows in-person hearings for these class members and prevents them from fully participating in their hearings.
232. By enforcing its Refusal to Produce Policy without identifying and providing reasonable accommodation for those Plaintiff Class members with disabilities, Defendants DHS and ICE discriminate against class members with disabilities in violation of Section 504 of the Rehabilitation Act.
COUNT SIX Arbitrary and Capricious Action in Violation of the APA (Organizational Plaintiffs, Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act
Subclass) 233. The allegations in paragraphs 1 – 232 are realleged and incorporated by reference. 234. Under the Administrative Procedure Act, courts must “hold unlawful and set aside
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agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
235. Agency action must be overturned “when the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Karpova v. Snow, 497 F.3d 262, 268 (2d Cir. 2007) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
236. Defendants’ Refusal to Produce Policy reverses years of settled and wellconsidered practice without reasoned explanation and in contradiction to the evidence. The Policy is not necessary to protect ICE officers, court personnel, detained immigrants, or the public from a continuing security threat.
237. Defendants entirely failed to consider important aspects of the problem, including the Policy’s interference with due process, detained immigrants’ ability to retain counsel, attorney-client communications, and the ability of attorneys to represent their clients.
238. Defendants’ unfounded and inconsistent statements indicate that the stated reason for the Refusal to Produce Policy is pretextual.
239. The Organizational Plaintiffs, Representative Plaintiffs, Plaintiff Class, and Rehabilitation Act Subclass have suffered and will imminently suffer irreparable injury as a result of Defendants’ Refusal to Produce Policy, and they are entitled to injunctive relief to avoid further injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief:
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1. Declare that Defendants’ Refusal to Produce Policy violates the First and Fifth Amendments of the U.S. Constitution, the Immigration and Nationality Act, the Administrative Procedure Act, and the Rehabilitation Act.
2. Permanently enjoin Defendants from relying exclusively on VTC technology to conduct removal proceedings for individuals detained by the ICE NY Field Office;
3. Permanently enjoin Defendants from requiring members of the Rehabilitation Act Subclass to appear for their hearings exclusively via VTC;
4. All other injunctive relief necessary to ensure that any use of VTC comports with the constitutional and statutory rights of the Plaintiffs;
5. Award Plaintiffs their reasonable fees, costs, and expenses pursuant to 28 U.S.C. § 2412; and
6. Award such additional relief as the interests of justice may require. DEMAND FOR JURY TRIAL
Plaintiffs hereby demand trial by jury on all issues so triable raised by the Class Action Complaint.
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________________, 2019

Respectfully submitted,

Jennifer Williams Julie Dona THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, NY 10038 Tel: (212) 577-3300
Class Counsel
Susan Reagan Gittes Pooja A. Boisture Dana Rehnquist DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY Tel: (212) 909-6000 Fax: (212) 909-6836
Class Counsel and Counsel for Plaintiff LAS

Brooke Menschel Jessica Nitsche Sonia Marquez BROOKLYN DEFENDER SERVICES 177 Livingston Street, 7th Floor Brooklyn, NY 11201 Tel: (718) 254-0700
Class Counsel
Robert J. Gunther, Jr Christopher Bouchoux William C. Kinder Jeffrey A. Dennhardt WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Tel: (212) 230-8800
Class Counsel and Counsel for Plaintiffs
BDS and BxD
Shakeer Rahman Jenn Rolnick Borchetta Johanna B. Steinberg THE BRONX DEFENDERS 360 E. 161st Street Bronx, NY 10451 Tel: (718) 838-7878
Class Counsel

STATE OF NEW YORK ) )
COUNTY OF NEW YORK )

VERIFICATION

Sworn to and subscribed this ____ day of ________, 2019
Notary Public