Case 1:17-cv-00721-EAW Document 38-2 Filed 09/25/17 Page 1 of 25

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all others similarly situated,
Petitioners, v.
ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Case No. 17-cv-721 (EAW)
FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CLASS ACTION

Respondents.

INTRODUCTION 1. This class action challenges the power of the federal government to deny parole summarily to arriving asylum-seekers and incarcerate them for prolonged periods even though the Government itself has determined they are likely to win the right to remain in the United States. In a case pending before the United States Supreme Court, the Government has represented—in arguing that immigrant detainees need not be given bond hearings to test the validity of their detention—that asylum-seekers have ready access to release on parole. But that representation cannot be squared with the experience of the petitioners and the proposed class members in this case—asylum-seekers who declared themselves at our nation’s borders, whose claims of persecution or torture were found credible, but who have nevertheless been detained without parole at the Buffalo
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Federal Detention Facility in Batavia as the Government processes their asylum claims over many months and, in some cases, years. 2. Petitioners Barrios Ramos and Abdi were detained for many months from the moment they arrived at the U.S.-Mexico border and sought asylum in the United States. Mr. Barrios Ramos, a political prisoner who fled Cuba to avoid further detention, and Mr. Abdi, who fled persecution and torture in Somalia on account of his membership in a minority tribe, each passed an initial screening known as a “credible fear interview,” where the Government found that each man had established a significant possibility of being granted asylum. Despite passing that interview, each was then subject to prolonged detention as his immigration case slowly ground on, during which time his repeated requests for parole were denied without explanation. Mr. Abdi spent over ten months in ICE custody; Mr. Barrios Ramos, who has been incarcerated for over seven months, has no realistic possibility of release in the near future, as his next immigration court date is only scheduled for the end of November. 3. This prolonged and arbitrary detention of the named petitioners reflects a broader practice at Batavia, where ICE has abandoned its long-standing policy favoring the release of asylum-seekers. Although the Government is still touting that policy to the Supreme Court, the detention of asylum-seekers without the possibility of release on parole is the new norm at Batavia. So whereas approximately 88% of parole requests made by people who passed a credible fear interview were granted during the first nine months of 2015 (the most recent period for which data are available), only 8% of such requests appear to have been granted from the beginning of 2017 until the filing of this lawsuit on July 28, 2017.
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4. The respondents’ actions violate federal statutes, regulations, directives, and the United States Constitution and are severely harming those being held at Batavia. Mr. Barrios Ramos and the proposed class of arriving asylum-seekers detained at Batavia who have not been granted parole seek adjudication or readjudication of their parole requests in accordance with the procedures and criteria contained in the ICE parole directive that the Government has repeatedly claimed to be following. In addition, Mr. Barrios Ramos and a sub-class of asylum-seekers whose detention exceeds, or will exceed, six months seek a bond hearing before an immigration judge—a form of relief to which they are entitled under a recent ruling from the Second Circuit.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 2201-02 (declaratory judgment); and 28 U.S.C. § 2241 (habeas corpus). 6. Venue is proper in the Western District of New York under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to these claims occurred in this district. Venue is also proper under 28 U.S.C. § 2241(d) because all potential class members are incarcerated within this District.
PARTIES 7. Petitioner Johan Barrios Ramos is a forty-year-old Cuban national seeking asylum in the United States. He has now spent more than seven months in ICE custody and is currently incarcerated at Batavia.
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8. Petitioner Hanad Abdi is a twenty-six-year-old Somali national seeking asylum in the United States. He spent more than ten months in ICE custody before he was conditionally released on August 16, 2017, three weeks after this lawsuit was filed. 9. Respondent Elaine Duke is sued in her official capacity as Acting Secretary of the U.S. Department of Homeland Security, the agency directly responsible for the petitioners’ detention. 10. Respondent Thomas Brophy is sued in his official capacity as Acting Field Office Director for the Buffalo District of ICE. Mr. Brophy has the authority to adjudicate parole for detainees held at Batavia. 11. Respondent Jeffrey Searls is sued in his official capacity as Acting Administrator at Batavia. 12. Respondent Jefferson B. Sessions is sued in his official capacity as the Attorney General of the United States. As the head of the Department of Justice, he oversees the operation the Executive Office of Immigration Review, which encompasses the immigration courts and Board of Immigration Appeals. Mr. Sessions shares responsibility for the implementation and enforcement of immigration laws along with Acting Secretary Duke.
FACTS PERTAINING TO INDIVIDUAL PETITIONERS A. Johan Barrios Ramos 13. Mr. Barrios Ramos, a native and citizen of Cuba, was born in 1977 in Havana. Declaration of Johan Barrios Ramos (“Barrios Ramos Decl.”) at ¶¶ 1-2. 14. Mr. Barrios Ramos became involved with the political opposition in Cuba around 2010. Id. ¶ 4.
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15. A few years later, he visited an independent journalist and member of the political opposition who was incarcerated by the Cuban authorities. Id. ¶ 5. 16. As a result of visiting this political dissident, Mr. Barrios Ramos became known to the Cuban government who arrested, interrogated, and incarcerated him on suspicion of engaging in “anti-Cuban” activities for approximately eleven months. Id. 17. During his detention, he was held in solitary confinement for several weeks and was sometimes deprived of food. He was also beaten and abused by the prison guards. Id. ¶ 5. 18. After his release from prison, Mr. Barrios Ramos continued his involvement in political opposition to the Cuban government. Id. ¶ 6. 19. As a result the government continued to monitor him and to send its agents to harass him. Id. ¶ 7. 20. Afraid for his safety, Mr. Barrios Ramos attempted to leave Cuba on two occasions. In both instances, government authorities prevented him from leaving the country. Id. 21. In late 2016, shortly after Fidel Castro died, the police once again came to Mr. Barrios Ramos’s mother’s house looking for him and accusing him of anti-government activities. He was not home at the time. After this incident, his mother told him that he should not come home. Id. ¶ 8. 22. In December 2016, Mr. Barrios Ramos finally succeeded in fleeing Cuba. He left because he was afraid he would be redetained and tortured. Id. ¶ 8-9. 23. Mr. Barrios Ramos left Cuba on a raft that reached the coast of Mexico. From there, he traveled overland, arriving at the U.S.-Mexico border in Roma, Texas, on
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January 14, 2017. He declared himself at the border post there and requested asylum. Id. ¶¶ 10, 11. 24. He was transferred to Batavia and given a credible fear interview on February 1, 2017. The officer who conducted that interview determined there was a significant possibility that Mr. Barrios Ramos’s claims would be found credible in a full asylum hearing before an immigration judge. The officer also found that there appeared to be no potential bars to asylum. Finally, the officer noted that Mr. Barrios Ramos’s identity had been determined with a reasonable degree of certainty. See Credible Fear Interview of Johan Barrios Ramos (dated February 1, 2017) at 3-5, Declaration of Desiree Lurf (“Lurf Decl.”), Ex. A. 25. On the same day that he passed his credible fear interview, Mr. Barrios Ramos was told by a deportation officer that there is no parole at Batavia. He does not recall receiving any written notification or advisal about parole, nor does he believe anyone at Batavia conducted a parole interview for him. Barrios Ramos Decl. ¶¶ 11-12. 26. Mr. Barrios Ramos retained immigration counsel, Desiree Lurf, who has assisted him in preparing for his asylum hearing in immigration court. Id. ¶ 13. 27. On February 28, 2017, Ms. Lurf submitted a parole request on his behalf. In support of this request, she submitted a copy of his birth certificate, declarations from Mr. Barrios Ramos’s sister (a lawful permanent resident) and a childhood friend (a U.S. citizen) with whom he would live if released supporting the parole request. Ms. Lurf also submitted five other letters of support from friends attesting to Mr. Barrios Ramos’s identity and good character. Photo identifications were included for affiants. First Parole
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Request for Johan Barrios Ramos with supporting exhibits (dated February 28, 2017), Lurf Decl. Ex. B. 28. On March 6, 2017, Ms. Lurf supplemented the parole request by submitting a copy of Mr. Barrios Ramos’s passport. Updated Parole Request for Johan Barrios Ramos with supporting exhibits (email dated March 6, 2017), Lurf Decl. Ex. C. 29. On March 7, 2017, Ms. Lurf received a two-sentence letter from Acting Field Office Director Brophy denying parole. In its entirety the body of the letter states: “This letter is in response to your recent correspondence requesting Parole. After a careful review of the evidence you submitted and the immigration file, your request for Parole is denied.” Ltr. from T. Brophy to D. Lurf (dated March 7, 2017), Lurf Decl. Ex. D. 30. On April 24, 2017, Ms. Lurf submitted a second parole request for Mr. Barrios Ramos. She provided evidence that Mr. Barrios Ramos’s health was deteriorating in Batavia. For instance, Mr. Barrios Ramos’s anxiety disorder has been exacerbated because his detention at Batavia constantly reminds him of the physical and psychological torture he suffered while detained in Cuba. Second Parole Request for Johan Barrios Ramos with supporting exhibits (dated April 24, 2017), Lurf Decl. Ex. E. 31. On May 4, 2017, Ms. Lurf received a two-sentence letter from Acting Field Office Director Brophy denying parole. In its entirety the body of the letter states: “This letter is in response to your recent correspondence requesting Parole. After a careful review of the evidence you submitted and the immigration file, your request for Parole is denied.” Ltr. from T. Brophy to D. Lurf (dated May 4, 2017), Lurf Decl. Ex. F. 32. On at least two occasions, Mr. Barrios Ramos asked his deportation officer, Deportation Officer (“DO”) Ensminger, why his parole requests were denied. DO
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Ensminger indicated that parole was no longer available, saying that it was a matter of luck and that there was a one-in-a-million chance of anyone at Batavia being granted parole. Barrios Ramos Decl. ¶ 15. 33. Mr. Barrios Ramos is suffering in detention. His anxiety disorder, which he developed while incarcerated in Cuba, is exacerbated during his detention in the United States. Id. ¶ 16. 34. Mr. Barrios Ramos was eagerly awaiting his day in immigration court, which was scheduled for August 15, 2017. Id. ¶ 17. On that date, the hearing began and Mr. Barrios Ramos began to testify through a Spanish-language interpreter provided by the court. Lurf Decl. ¶ 10-11. 35. However, the interpreter, who spoke Mexican Spanish, was unable to fully understand Mr. Barrios Ramos’s Cuban accent and could not adequately interpret his testimony. Ms. Lurf was forced to ask the court to adjourn the hearing and resume on another date with a different interpreter. Lurf Decl. ¶ 11. 36. She was subsequently informed that the immigration court was rescheduling Mr. Barrios Ramos’s asylum hearing for November 29, 2017. Lurf Decl. ¶ 12. At that point, he will have been detained for eleven months.
B. Hanad Abdi 37. Mr. Abdi is a native and citizen of Somalia. He was born in 1991, in Buulo Mareer, a town about 75 miles south of Mogadishu, Somalia’s capital city. See Declaration of Petitioner Hanad Abdi (“Abdi Decl.”) ¶¶ 1-3. He and his family belong to a small minority tribe known as the Tunni. Id. ¶ 5.
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38. Mr. Abdi lived in Buulo Mareer with his father, mother, and four younger siblings. His mother died during childbirth in 2008. Id. ¶¶ 3-4. 39. As the oldest child, Mr. Abdi has had to fill in the void left by his mother’s death to take care of his younger siblings. Id. ¶ 4. 40. For most of Mr. Abdi’s life, Somalia has been a failed state, mired in civil unrest and war. In the absence of a functioning government, tribal conflict, usually motivated by control for land and resources, has raged on. 41. As members of the Tunni, Mr. Abdi’s family has been targeted and harassed for decades by members of a larger, more powerful tribe, the Habar-gidir. Mr. Abdi was taunted and bullied in school because of his tribal affiliation, and he remembers hearing Habar-gidir men harass his mother when he was a child. Id. ¶ 5. 42. More recently, members of the Habar-gidir wanted the plot of land that Mr. Abdi’s family has owned and farmed for generations. In 2008, Mr. Abdi’s father lost about half of this land to a man from the Habar-gidir tribe, who targeted the family because they are Tunni. Id. ¶ 6. 43. The man who seized the Abdis’ land died in April 2016. The man’s brother, who was the Chief of Police in the section of Buulo Mareer where Mr. Abdi’s family lived believed that Mr. Abdi’s father had conducted witchcraft that caused his brother’s death. Id. ¶ 7. 44. As an act of vengeance, this Chief of Police shot and killed Mr. Abdi’s father in May 2016. Id.
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45. Mr. Abdi was attending English classes at the time his father was killed. He came home to see his aunt weeping, and they went to the family farm to collect his father’s body. As the oldest child, Mr. Abdi was responsible for burying his father. Id. ¶ 8. 46. A week later, Mr. Abdi was confronted at his family farm by plain-clothes policemen employed by the man who murdered his father. Id. ¶ 9. 47. The men captured Mr. Abdi, tied him up, and severely beat him. He believes they would have killed him had he not been able to escape later that day as his captors got into a gunfight with a rival group. Amidst the chaos, Mr. Abdi managed to untie himself and run away. He fled into the bushes in the countryside and hid in a ditch in the ground for several hours. He heard the voices of his captors as they came to the area looking for him. He was terrified. Id. ¶ 10. 48. Around midnight, when he was sure his captors were gone, Mr. Abdi walked back to his house. There, he met his aunt who told him that his captors had just come to the house looking for Mr. Abdi and beaten her as they demanded she turn him over. Id. ¶ 11. 49. Mr. Abdi was suffering his own physical injuries from earlier in the day. But since the men were still looking for him, he believed he had to leave the area immediately. Aided by a family friend, he was hidden in the back of a vehicle and taken to Mogadishu. Id. ¶ 12. 50. Some days later, he began to receive threatening phone calls from the men who had captured him telling him they knew where he was and that they planned to kill him. Id. ¶ 13.
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51. Mr. Abdi left Somalia on June 10, 2016, shortly after receiving those calls. The same family friend who secured his safe passage to Mogadishu paid smugglers to help him travel overland to Ethiopia and then onwards to Brazil by plane. Id. ¶ 15. 52. From Brazil, Mr. Abdi was passed from smuggler to smuggler and crossed overland through Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico, finally arriving at the southern border of the United States. Id. ¶ 16. 53. Mr. Abdi made the perilous journey to the United States because he believed that he could find safety and refuge in this country. Id. ¶ 17. 54. Mr. Abdi arrived at the U.S.-Mexico border in Brownsville, Texas on October 12, 2016. He declared himself at the border post there, and requested asylum in this country. Id. ¶¶ 16-17. 55. Mr. Abdi then spent approximately two weeks at a detention center in Texas and was transferred to Batavia on or around October 26, 2016. Id. ¶ 18. 56. Mr. Abdi was given a credible fear interview on November 21, 2016. The officer who conducted the interview determined there was a significant possibility that Mr. Abdi’s claims would be found credible in a full asylum hearing before an immigration judge. The officer also found that there appeared to be no potential bars to asylum. Finally, the officer noted that Mr. Abdi’s identity had been determined with a reasonable degree of certainty. See Credible Fear Interview of Hanad Abdi (dated Nov. 23, 2016) at 3-4, Abdi Decl. Ex. A.
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57. On December 8, 2016, Mr. Abdi was provided notice that he would have the opportunity to present his claim for asylum before an immigration judge. See Notice to Appear (dated Nov. 23, 2016, served Dec. 8, 2016), Abdi Decl. Ex. B. 58. On December 8, 2016, he also received a form entitled “Parole Advisal and Scheduling Notification.” The advisal informed him that since he had passed his CFI, ICE would consider releasing him from custody on parole pending the resolution of his immigration case. The form went on to explain that ICE may grant parole if he established (1) his identity, (2) that he would appear for future court dates and enforcement appointments, and (3) that he was neither a security risk nor danger to the community. See Parole Advisal and Scheduling Notification (dated Dec. 8, 2016) at 1-2, Abdi Decl. Ex. C. 59. Mr. Abdi had a parole interview before his ICE deportation officer, Mitchell Muehlig, on December 15, 2016. Abdi Decl. ¶ 25. 60. In support of his application for parole, Mr. Abdi provided a copy of his birth certificate and he collected affidavits and supporting documentation from relatives and a family friend residing in the U.S. who verified they knew him personally. Id. ¶ 26. 61. In a letter dated December 19, 2016, Mr. Abdi received notice that his parole had been denied because he had failed to establish his identity to ICE’s satisfaction. The form he received, titled “Notification Declining to Grant Parole,” included checkboxes for various grounds under which ICE may deny parole. In Mr. Abdi’s case, only the “identity” checkboxes were marked. ICE did not check the boxes indicating he was ineligible for parole on the grounds that he was a flight risk or danger to the community, nor did it mark the boxes for “additional exceptional, overriding factors” related to law
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enforcement or national security concerns that would warrant a denial of parole. See Notification Declining to Grant Parole (dated Dec. 19, 2016) at 1-2, Abdi Decl. Ex. D (“Dec. 19 Parole Denial”). 62. Mr. Abdi requested that ICE reconsider its decision. Abdi Decl. ¶ 29. In a letter dated January 10, he received another “Notification Declining to Grant Parole” form, also indicating that the reason ICE was denying his parole was because he had not established his identity to ICE’s satisfaction. On this form too, ICE did not find Mr. Abdi to be a flight risk or danger to the community, or to present “additional exceptional, overriding factors” against granting parole. See Notification Declining to Grant Parole (dated Jan. 10, 2017) at 1-2, Abdi Decl. Ex. E (“Jan. 10 Parole Denial”). 63. Both parole denial forms that Mr. Abdi received, dated December 19 and January 10 respectively, indicated that he could request redetermination if he provided additional documents like “government-issued documents such as passports, birth certificates, or identity cards” to establish his identity. The form also informed Mr. Abdi that his identity may be established “through written statements prepared by individuals whom [he] know[s] in the United States and whose identity ICE can verify to its satisfaction.” See Dec. 19 Parole Denial at 2; Jan. 10 Parole Denial at 2. 64. Mr. Abdi asked his deportation officer, DO Muehlig, why his parole requests were denied. Officer Muehlig told him it was because he had not submitted photo identification—even though ICE’s own parole guidance and parole denial form makes clear there is no requirement that an asylum-seeker provide photo identification. Abdi Decl. ¶ 31.
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65. Mr. Abdi retained Siana McLean as his immigration lawyer on February 28, 2017. Abdi Decl. ¶ 32. Ms. McLean has assisted Mr. Abdi in preparing for his asylum hearing in immigration court. 66. Ms. McLean renewed Mr. Abdi’s request for release on parole on April 20. Declaration of Siana McLean (“McLean Decl.”) at ¶ 4. Ms. McLean submitted a cover letter along with the request and provided documentation directly responsive to ICE’s previous determinations that Mr. Abdi had failed to establish his identity. She submitted a Somali government-issued photo identification card for Mr. Abdi along with a certified English translation. She also resubmitted an affidavit from Mr. Abdi’s uncle, a lawful permanent resident, who welcomed Mr. Abdi to live with him, and affidavits from Mr. Abdi’s aunt and family friend. All three affiants provided copies of their U.S.- or stateissued government photo-identification, and all three individuals stated they knew Mr. Abdi and his family and could confirm his identity. See Immediate Parole Requested for Hanad Abdi with supporting exhibits (dated April 20, 2017), McLean Decl. Ex. A. 67. In further support of the parole request, Ms. McLean submitted medical records for Mr. Abdi demonstrating the physical and psychological toll that continued detention was taking on him. Id. 68. On May 4, 2017, Ms. McLean received a two-sentence letter from Acting Field Office Director Brophy denying parole. The body of the letter states, in its entirety: “This letter is in response to your recent correspondence requesting that your client be released on parole. After a careful review of the evidence you submitted and the Immigration file, your request for your client’s release is denied.” No reasoning was offered, and no
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notification form with checkboxes was provided. Ltr. from T. Brophy to S. McLean (dated May 4, 2017), McLean Decl. Ex. B. 69. After Mr. Abdi received his third parole denial on May 4, 2017, he asked his deportation officer why his request was rejected again. DO Muehlig said that there was nothing he could do, and the decision to deny parole had been made by his superiors. He told Mr. Abdi that “everything changed” in January and parole has “all stopped” under the new administration. Abdi Decl. ¶ 35-36. 70. While he was detained Mr. Abdi was unable to effectively assist Ms. McLean in preparing for his asylum hearing. To support his asylum claim he must track down documents and witnesses from Somalia including his father’s death certificate, the police report he filed in Mogadishu, and affidavits from his aunt and younger siblings corroborating the family’s persecution. However, he is unaware of his family’s present whereabouts in Somalia, and while detained, he could not reach out from detention to friends outside the United States to determine where they are. Abdi Decl. ¶¶ 40-41; McLean Decl. ¶ 11. 71. In Ms. McLean’s experience, non-detained clients can actively assist in the preparation of their cases by reaching out to family and friends in their home countries via social media, WhatsApp, and e-mail, achieving far greater results than a lawyer or other outside advocate ever could. They can connect with their networks, explain the need for documents to support their asylum applications, and enlist their friends’ and families’ help in collecting these documents. Detained clients are simply unable to carry out such basic tasks. McLean Decl. ¶ 12.
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72. Mr. Abdi is also suffering from debilitating anxiety and depression resulting from the events that led to his fleeing Somalia, and these conditions are exacerbated by his lengthy detention in the United States. While at Batavia, he had nightmares when he slept and woke up screaming from them. Abdi Decl. ¶ 37. 73. In detention, Mr. Abdi did not have the opportunity to receive adequate counseling or therapy for the trauma he has suffered and his psychological situation deteriorated to the point where he had trouble sleeping and breathing. Abdi Decl. ¶ 38. 74. Mr. Abdi’s anxiety and depression in detention were compounded by the fact that he has been unable to ascertain the whereabouts of his four younger siblings. When Mr. Abdi fled Buulo Mareer, he was forced to leave them behind. He hopes they ran away before the Habar-gidir came back to his house looking for him. He wants to call neighbors and friends to inquire about them, but he was unable to do so from detention. He is terrified that the reason he has not heard from his siblings is because they were captured like him or killed like his father. Id. ¶ 39. 75. After this lawsuit was filed, and as a direct result of the lawsuit, ICE paroled Mr. Abdi on August 16, 2017. His release is conditioned on a forensic analysis of his identity documents, which is not yet complete. The standards used in the analysis and the accuracy of any results are unknown to Mr. Abdi and his counsel. He also remains subject to restraints on his liberty, including around-the-clock GPS monitoring. Mr. Abdi has not yet received a full list of any other conditions that might be imposed upon his continued release. Declaration of Robert Hodgson (“Hodgson Decl.”) ¶ 3.
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BACKGROUND REGARDING PAROLE AND DETENTION PRACTICES A. Asylum and Parole Practices 76. To enter the United States, non-citizens must present themselves for inspection at a port of entry and establish their admissibility. Persons who cannot demonstrate they are admissible are generally put into a streamlined removal process known as expedited removal, where they do not have the opportunity to present their case before an immigration judge (“IJ”). 77. However, there are two groups of applicants for admission who, despite appearing to be inadmissible, are eligible for full removal proceedings in immigration court. They are (a) asylum-seekers who have been found to have a credible fear of persecution and (b) persons, including lawful permanent residents (“LPRs”), with valid documents who are nevertheless not “clearly and beyond a doubt” entitled to be admitted. 78. To pass a credible fear interview (“CFI”), a person must demonstrate to the satisfaction of an immigration officer that he or she has a “significant possibility” of being granted asylum. 79. All persons deemed inadmissible are subject to mandatory detention. However, the government may release on parole any individual seeking admission to the U.S., including asylum-seekers in removal proceedings. 80. In 2009, ICE issued a directive aimed at ensuring transparency and consistency across the country in the issuance of parole for arriving asylum-seekers who have passed a CFI. See ICE Policy No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) (“Parole Directive”), Declaration of Aadhithi Padmanabhan (“Padmanabhan Decl.”), Ex A.
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81. The Parole Directive provides that “when an arriving alien found to have a credible fear establishes to the satisfaction of [ICE] his or her identity and that he or she presents neither a flight risk nor danger to the community, [ICE] should, absent additional factors…parole the alien on the basis that his or her continued detention is not in the public interest.”
B. Government’s Representations that Parole Directive Remains in Effect 82. On February 20, 2017, DHS Secretary Kelly issued a memorandum that addressed, among other things, parole procedures. See Memorandum from Secretary John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvement Policies, Padmanabhan Decl. Ex. B. That memorandum stated that the Parole Directive “shall remain in full force and effect” pending the Secretary’s “further review and evaluation….” Id. at 9-10. 83. The Government has also represented to the Supreme Court of the United States that the Parole Directive remains in full force and effect. In Jennings v. Rodriguez, a case in which the plaintiffs challenge the government’s policy of denying arriving asylumseekers a bond hearing before an immigration judge—an alternative mechanism for detainees to seek release—the Government has assured the Supreme Court that ICE continues to apply the Parole Directive in an attempt to argue that asylum-seekers have a robust and navigable means of securing release from detention. Gov. Suppl. Reply Br., at 6 n. 2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017 (quoting Secretary Kelly’s Feb. 20 memo)), Padmanabhan Decl., Ex. C. 84. The Government explicitly describes its parole policy as one that “automatically consider[s] parole for arriving aliens found to have a credible fear, and to release the alien
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if he establishes his identity, demonstrates that he is not a flight risk or danger, and there are no countervailing considerations.” Id. at 6 (emphasis added). The brief goes on to say that the parole “policy calls for far more than ‘checking a box on a form, with no hearing, no record and no appeal’…It provides notice to the alien, an interview, the opportunity to respond and present evidence, a custody determination by an officer who did not conduct the credible-fear screening, supervisory review, and further parole consideration based upon changed circumstances or new evidence.” Id. at 6-7. 85. Indeed, the Government has consistently relied on the fact that arriving asylumseekers already enjoy “extensive safeguards” that protect them from “arbitrary deprivations of liberty”—in particular, the presumption of release on parole—to argue that any liberty interests this group may have are adequately protected and there is no need for additional process in the form of a bond hearing before an immigration judge. Gov. Suppl. Br., Jennings v. Rodriguez, No. 15-1204 (brief filed Jan. 31, 2017), at 7, Padmanabhan Decl., Ex. D; see also id. at 10-11; Gov. Supp. Reply Br. at 6. At oral argument in Jennings, then-Acting Solicitor General Ian Gershengorn told the Justices that “the government does use parole for a lot of these individuals” to demonstrate they “actually get process.” Excerpt of Transcript of Oral Argument at 68-69, Jennings v. Rodriguez, No. 15-1204. Padmanabhan Decl., Ex. E. 86. The Supreme Court did not decide the Jennings case in the 2016-17 term. Instead the case has been restored to the calendar for reargument in the next Supreme Court term. 87. Since the representations made by Secretary Kelly and the government in Jennings, there has been no formal modification or rescission of the Parole Directive.
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C. Apparent Change in Parole Adjudication Practices at Batavia 88. Data obtained via a Freedom of Information request from the American Civil Liberties Union shows that between January and September 2015, 15 out of 17 requests for parole at Batavia by asylum seekers who had passed a CFI were granted—an 88% parole grant rate. See Padmanabhan Decl. ¶¶ 7-8. 89. There are only a small number of lawyers who regularly represent BFDF detainees. Since FOIA data for 2017 is not available, the petitioners’ undersigned counsel has asked several of these practitioners about their experience with parole in 2017. See Id. ¶¶ 2-6. 90. Based on these conversations, the petitioners’ counsel has confirmed only two parole grants for asylum-seekers who passed a CFI at Batavia in 2017 as of the original filing of this case on July 28, 2017. By contrast, 24 parole requests were denied in that time period—an approximately 8% parole grant rate. Id. ¶ 5. 91. In addition to this drastic reversal in parole adjudication outcomes, other indicators point to an abrupt change of parole practices at Batavia despite the administration’s assurances that the Parole Directive remains in effect. 92. Siana McLean, Mr. Abdi’s immigration lawyer, wrote to the Acting Field Office Director, Thomas Brophy, on April 26, 2017, to inquire whether the Field Office was still following the Parole Directive. McLean Decl. ¶ 6. 93. In response to her letter, she received a phone call from Deportation Officer Ball, who informed her that parole adjudication practices have changed under the new administration. McLean Decl. ¶ 7.
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94. Desiree Lurf, Mr. Barrios Ramos’s lawyer, spoke with a deportation officer, DO Ensminger, in early March about the parole policy. DO Ensminger also informed Ms. Lurf that the parole adjudication practices at Batavia have changed under the new administration. Lurf Decl. ¶ 9. 95. Both Mr. Abdi and Mr. Barrios Ramos were told by their respective deportation officers that parole is no longer available at Batavia. 96. The refusal to follow the Parole Directive at Batavia contradicts the public statements made by the Trump administration that the Parole Directive remains “in full force and effect,” and it cannot be reconciled with the requirements of the Constitution, relevant statutes, and regulations.
CLASS ACTION ALLEGATIONS 97. The case is brought as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), or in the alternative, as a representative habeas action pursuant to procedures analogous to Rule 23 on behalf of all arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole. All class members are detained pursuant to the mandatory detention provision of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(B)(ii). 98. The case also is brought on behalf of a sub-class consisting of those arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been or will be detained for more than six months without a bond hearing before an immigration judge (the “prolonged detention subclass”).
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99. The proposed class and prolonged detention sub-class are sufficiently numerous so as to make joinder impracticable. Upon information and belief, the class consists of more than 40 members. Given the court calendar at the Batavia Immigration Court, the majority of arriving asylum-seekers remain incarcerated for six months or more as they await adjudication of their asylum claims. Therefore, upon information and belief, the sub-class also consists of more than forty members. Joinder is also impracticable because many in the proposed class and sub-class are pro se, indigent, have limited English proficiency, and/or have a limited understanding of the U.S. judicial system. 100. There are common questions of law and fact affecting class members, including (a) whether the Government has a policy or practice of detaining arriving asylum-seekers who have passed a credible fear interview without parole at Batavia; (b) whether the Government has a policy or practice of not following the procedures and criteria of the 2009 Parole Directive at Batavia; (c) whether the Due Process Clause or the Immigration and Nationality Act and its implementing regulations authorize such detention without parole. 101. There are common questions of law and fact affecting prolonged detention subclass members, including (a) whether the Government has a policy or practice of detaining arriving asylum-seekers who have passed a credible fear interview for longer than six months without providing a hearing to determine whether detention is justified; (b) whether the Immigration and Nationality Act authorizes this detention policy or practice; and (c) whether this detention policy or practice violates the Due Process Clause. 102. Mr. Barrios Ramos’s claims are typical of those of the class and prolonged detention sub-class with respect to the legality of the Government’s policies and practices
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at issue. The prosecution of individual actions against the respondents would create a risk of inconsistent and varying adjudications, which would result in variable standards of conduct for the respondents. 103. Mr. Barrios Ramos will fairly and adequately protect the interests of the class and sub-class. He is unaware of any conflicts that would preclude fair and adequate representation. 104. Proposed class counsel has extensive experience litigating similar matters. 105. The respondents’ policy or practice of detaining class members without parole or a bond hearing applies to the class and sub-class respectively, making class-wide injunctive and declaratory relief appropriate.
CAUSES OF ACTION FIRST CLAIM
106. The parole denials of the petitioners and the proposed class violate 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5.
SECOND CLAIM 107. The parole denials of the petitioners and the proposed class violate the Due Process Clause of Fifth Amendment.
THIRD CLAIM 108. The prolonged detention of the petitioners and the proposed prolonged detention sub-class without a bond hearing violates 8 U.S.C. § 1225(b) of the Immigration and Nationality Act.
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FOURTH CLAIM 109. The prolonged detention of the petitioners and the proposed prolonged detention sub-class without a bond hearing violates the Due Process Clause of the United States Constitution.
PRAYER FOR RELIEF WHEREFORE the petitioners respectfully request that the Court: 110. Assume jurisdiction over this matter; 111. Order the respondents to release Mr. Abdi and Mr. Barrios Ramos on parole under only those conditions authorized by the parole statute and regulation; 112. Order the respondents to adjudicate or readjudicate parole requests of all class members in conformance with the 2009 Parole Directive; 113. Declare that the respondents may not detain class members in violation of the 2009 Parole Directive; 114. Order the respondents to provide the prolonged detention sub-class members a bond hearing before an immigration judge where the Government bears the burden of justifying further detention by clear and convincing evidence; 115. Declare that the respondents may not detain the prolonged detention sub-class members for six months or more without providing them a bond hearing before an immigration judge where the Government bears the burden of justifying further detention by clear and convincing evidence; 116. Award the named petitioners and other members of the proposed class reasonable attorneys’ fees and costs for this action; 117. Grant any other relief the Court deems just and proper.
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Dated: August 21, 2017 New York, NY

Respectfully Submitted,
/s/ Aadhithi Padmanabhan AADHITHI PADMANABHAN ROBERT HODGSON CHRISTOPHER DUNN PAIGE AUSTIN* New York Civil Liberties
Foundation 125 Broad Street, 19th Floor, New York, NY 10004 Tel: (212) 607-3300 apadmanabhan@nyclu.org rhodgson@nyclu.org cdunn@nyclu.org paustin@nyclu.org
Counsel for Petitioners
MARIKO HIROSE International Refugee Assistance
Project 40 Rector Street, 9th Floor, New York, NY 10006 Tel: (646) 459-3044 mhirose@refugeerights.org
Of Counsel
* Application for admission to W.D.N.Y. pending

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 Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 1 of 68

UNITED STATES DISTRJCT COURT WESTERN DISTRJCT OF NEW YORK

HANAD ABDI and JOHAN BARRJOS RAMOS,
Petitioners,
V.
ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official Capacity as Acting Administrator ofthe Buffalo Federal Detention Facility; and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,
Respondents.

DECISION AND ORDER 1:17-CV-0721 EAW

INTRODUCTION Petitioners Hanad Abdi and Johan Barrios Ramos (collectively, "Petitioners") came to the United States seeking asylum. The federal government has determined that they are likely to win the right to remain in the United States due to a credible fear of returning to their homelands because of a significant possibility of persecution or torture in those countries. Upon their arrival at the U.S. border, they were taken into custody, transported to the Buffalo Federal Detention Facility in Batavia, New York, and held without parole or a bond hearing for more than nine months. Petitioners seek relief on behalf of themselves individually and on behalf of the putative class members of similarly situated asylum-seekers being held in Batavia.
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Respondents moved to dismiss this lawsuit pursuant to Federal Rules of Civil Procedure 12(b)( 1) and 12(b)(6), contending that the Court lacks subject matter jurisdiction over the claims and that Petitioners have failed to state a viable claim for relief. (Dkt. 27). Petitioners oppose dismissal and seek a preliminary injunction on behalf ofthemselves and the members ofthe putative class. (Dkt. 38). While acknowledging that the ultimate parole decision is a discretionary determination not subject to judicial review, Petitioners seek preliminary injunctive relief requiring procedural safeguards when adjudicating parole. Petitioners also seek preliminary injunctive relief requiring individualized bond hearings for any detention that lasts longer than six months.
Because this Court has subject matter jurisdiction over the claims and Petitioners have. stated valid claims, the Court denies Respondents' motion to dismiss. (Dkt. 27). In addition, because irreparable harm has been established, and there is a likelihood of success with respect to the claims in this litigation, the Court grants the preliminary injunctive relief sought by Petitioners. (Dkt. 38). Respondents must comply with their internal directive concerning parole hearings-an internal directive that Respondents recently embraced before the Supreme Court, telling the Justices that it remained in full force and effect. Moreover, after six months of detention, Respondents must provide individualized bond hearings and establish by clear and convincing evidence that an asylum-seeker is a flight risk or a danger to the community to justify continued detention.
Although the grant of preliminary injunctive relief will alter the status of the parties-it means that asylum-seekers being detained in Batavia will be afforded certain procedural protections-the relief is nonetheless warranted because to act otherwise would
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mean that these individuals would be detained without any appropriate process. Although the Court recognizes that the law in this area is evolving, and the legal landscape could change in the future, the continued detention of these asylum-seekers who have passed credible fear interviews, without being afforded minimal procedural protections, would result in extreme or very serious irreparable damage. As a result, for the reasons discussed further below, Petitioners' motion for a preliminary injunction (Dkt. 38) is granted.
FACTUAL BACKGROUND
Petitioner Hanad Abdi ("Abdi") is a 26-year-old native of Somalia. (Dkt. 38-5 at ~~ 1-2). He and his family are members of a minority tribe in Somalia. (!d. at~ 5). After rival tribal members killed his father, they captured Abdi and beat him. (!d. at~~ 7-10). Abdi managed to escape and fled his home country in June 2016. (!d. at~~ 10, 15). After an arduous journey through more than ten countries, Abdi arrived at the southern U.S. border on October 12, 2016, seeking asylum. (!d. at~~ 15-17). After two weeks at a detention center in Texas, he was transferred to the Buffalo Federal Detention Facility in Batavia, New York, on or about October 26, 2016. (!d. at ~ 18). The officer who interviewed Abdi in connection with his request for asylum determined that "[t]here is a significant possibility that the assertions underlying the applicant's claim [for asylum] could be found credible in a ... hearing," and asylum proceedings have been scheduled before an immigration judge. (!d. at ~~ 19-22, Ex. A & B). However, his requests for parole were repeatedly denied until August 16, 2017, when Abdi was released on parole after commencement of this litigation. (Dkt. 38-3 at~~ 16-17; Dkt. 38-5 at~~ 23-35). Abdi
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has subsequently been informed that his parole was revoked, but he remains out of custody. (!d. at~ 17).
Johan Barrios Ramos ("Barrios Ramos") is a 40-year-old native and citizen of Cuba who was involved with political opposition and human rights work in his native country. (Dkt. 38-4 at ~~ 1, 2, 4). For 11 months, he was imprisoned in Cuba for his political activities. (Jd. at~ 5). He fled Cuba in December 2016, and arrived in Mexico by raft. (Jd. at~~ 9, 10). He traveled to the U.S.-Mexico border, arriving on January 14, 2017, and sought asylum in the United States. (!d. at~~ 10-11 ). He passed his credible fear interview (i.e., the process through which a preliminary determination is made that an asylum-seeker has a viable claim for asylum), and asylum proceedings have been scheduled. (!d. at~~ 11, 17). However, his requests for parole were repeatedly denied with no explanation (id. at ~~ 11-15)-that is, until after commencement of this litigation, when Barrios Ramos was paroled on September 14,2017 (Dkt. 38-3 at~ 18).
In addition to Abdi and Barrios Ramos, Petitioners have submitted declarations from 23 similarly situated individuals who have all sought asylum in this country, have passed their credible fear interviews, and who were detained for many months (and in some cases over a year) at the Buffalo Federal Detention Facility without parole or a bond hearing. (See Dkt. 38-6 (Abdirashid Musa, detained since January 2017); Dkt. 38-7 (Muktar Mohamed, detained in January 2017, but released in September 2017 (Dkt. 51-1 at 6-7)); Dkt. 38-8 (Koffi Sewoul, detained since May 2017); Dkt. 38-9 (Joseph Baptiste, detained in November 2016, but released in September 2017 (Dkt. 51-1 at 7)); Dkt. 38-10 (Dieusauveur Flezinord, detained since December 2016); Dkt. 38-11 (Saikou Touray,
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detained in January 2017, but released in October 2017 (Dkt. 51-1 at 96-97)); Dkt. 38-12 (Salad Suraw Abdi, detained since January 20 17); Dkt. 38-13 (Muhamed Ahmed Hirsi, detained since September 2016); Dkt. 38-14 (Ahmed Mohamed Ahmed, detained since January 2017); Dkt. 38-15 (Abdirahman Elmi Nor, detained since January 2017); Dkt. 3816 (Dayron Hernandez Gutierrez, detained in February 2017, but released in September 2017 (Dkt. 51-1 at 6)); Dkt. 51-1 at 11 (Kazeem Akinpelu Azeez, detained since January 2017); id. at 19 (Mamadou Barry, detained since November 2016); id. at 29 (Abdimalik Mohamed, detained since December 2016); id. at 35 (Niang Abdou Lahad, detained since October 2016); id. at 46 (Mamadou Diallo, detained since January 2017); id. at 51 (Jacob Akwotark Baye, detained since October 2016); id. at 59 (Ismail Noor Mohamed, detained since September 2016); id. at 70 (Yacob Abraham Weldegiorgis, detained since June 20 17); id. at 86 (Denel Thomas, detained since December 20 16); id. at 117 (Abraham Hagos Gashne, detained since June 2017); id. at 124 (Abraham Zerom Weldemikael, detained since June 20 17); id. at 131 (Bereket Araya Ghidewon, detained since October 2016)).
These asylum-seekers are detained pursuant to 8 U.S.C. § 1225(b)(l)(B)(ii). An individual detained under§ 1225(b) can be paroled "into the United States temporarily" by the Attorney General "in his discretion." 8 U.S.C. § 1182(d)(5)(A). A 2009 directive issued by Immigration and Customs Enforcement ("ICE") ("the ICE Directive" or "the Directive") sets forth certain procedures that must be utilized when evaluating parole requests. (Dkt. 38-3 at 8-17); ICE Directive No. 11002.1: Parole ofArriving Aliens Found
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to Have a Credible Fear ofPersecution or Torture (Dec. 8, 2009). 1 While the Directive makes it clear that parole determinations are inherently discretionary decisions, certain minimum procedural safeguards are required when making these discretionary determinations. For instance, the asylum-seeker must be provided written notice of the parole process in a language that he or she understands, ICE Directive No. 11002.1, ,-r,-r 6.1, 8.1, and parole interviews must normally be conducted within seven days of a credible fear finding, id. at ,-r 8.2. Moreover, parole decisions must be uniformly documented, id. at ,-r 6.2, written notification of the parole decision must be provided, id. at ,-r 6.5, and a "brief explanation of the reasons for any decision to deny parole" must be provided, id. Additionally, the asylum-seeker must be advised of the right to request a redetermination of the decision "based upon changed circumstances or additional evidence." !d.
Earlier this year, Respondents represented to the United States Supreme Court that the ICE Directive "remains in full force and effect." See Supplemental Reply Brief for Petitioners, at 6 n.2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017). Nonetheless, according to Petitioners, the ICE Directive is being consistently disregarded and ignored at the Buffalo Federal Detention Facility in Batavia. Moreover, although the Second Circuit and other courts have recognized the right to a bond hearing after detention in certain immigration contexts that last longer than six months (including in the case of
The text of the ICE Directive can be found in various submissions by the parties, including at Docket 38-3, pages 8-17. Throughout the remainder of this Decision, the Court will cite directly to the Directive: ICE Directive No. 11002.1.
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aliens with criminal records detained under 8 U.S.C. § 1226), in this case none of the asylum-seekers have been granted a bond hearing.
On July 28, 2017, Petitioners filed a petition for a writ of habeas corpus. (Dkt. 1). Petitioners filed an amended petition on August 21, 20 17, as well as a complaint for declaratory and injunctive relief. (Dkt. 17). In the amended petition, Petitioners raise class action allegations and assert that Respondents have violated and continue to violate the statutory and constitutional rights of Petitioners and the members of the putative class. (!d. at 23-24). Petitioners allege that Respondents maintain a practice of denying parole to asylum-seekers detained at the Buffalo Federal Detention Facility who have passed a credible fear interview. (!d. at 1-2). Petitioners also allege that a subclass of similarly situated asylum-seekers have been or will be detained for more than six months without a bond hearing before an immigration judge. (!d. at 3).
On August 25, 2017, Petitioners moved to certify the class. (Dkt. 19). On September 12, 2017, Respondents moved to dismiss for lack of jurisdiction and failure to state a claim. (Dkt. 27). On September 25, 2017, Petitioners filed a motion for a preliminary injunction. (Dkt. 38). After briefing on the motion to dismiss (Dkt. 48; Dkt. 49), and the preliminary injunction motion (Dkt. 50; Dkt. 51), oral argument was held before the undersigned on October 27, 2017, at which time the Court reserved decision.
DISCUSSION Petitioners contend that the parole practices at the Buffalo Federal Detention Facility have changed significantly since President Trump came into office. Petitioners offer various statistics supporting their contentions (Dkt. 38-17), as well as testimony from
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detained asylum-seekers that they have been told by immigration officials that the Trump administration has eliminated parole (see, e.g., Dkt. 38-5 at~ 36; Dkt. 38-6 at~ 3; Dkt. 3813 at ~ 5; Dkt. 38-14 at ~ 2). While acknowledging "changes in general enforcement objectives under the Trump Administration" (Dkt. 50-1 at~ 4), Respondents contest that the change in administration has caused any alteration of policy (Dkt. 50-2 at~ 2).
This Court cannot determine based on the written record the reasons for any alteration in the parole practices in Batavia. However, the motivations behind the failure to follow the ICE Directive at the Buffalo Federal Detention Facility or to provide bond hearings after six months of detention-while perhaps politically meaningful-are not legally significant. What is important to this Court's analysis is the fact that the Directive is being violated and that asylum-seekers are being held for longer than six months without individualized bond hearings. Respondents do not, and cannot, ultimately contend that they are adhering to the dictates of the ICE Directive or providing bond hearings after six months of detention. Instead, they take the position that the ICE Directive is not legally enforceable and that bond hearings are not required. Because the Court disagrees on both counts, the motions before the Court can be resolved on the papers. Respondent's motion to dismiss is denied, and Petitioners' preliminary injunction motion is granted. I. Respondents' Motion to Dismiss
Respondents seek dismissal under Federal Rule of Civil Procedure 12(b)( 1), arguing that this Court lacks subject matter jurisdiction to consider Petitioners' parole claims, and under Rule 12(b)(6), contending that Petitioners have failed to state a valid claim for habeas
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corpus relief. In addition, Respondents contend that the release from custody of both Abdi and Barrios Ramos renders moot any claims asserted in this litigation.
Because Petitioners do not challenge the ultimate decision to deny parole, but rather challenge the procedures employed when evaluating a parole request, this Court has subject matter jurisdiction to consider the parole claims. Moreover, Petitioners have stated valid claims challenging both the failure to follow the ICE Directive in connection with parole decisions, and the failure to grant a bond hearing to those individuals detained longer than six months pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 20 15), petition for cert. filed, 84 U.S.L.W. 3562 (U.S. Mar. 25, 2016) (No. 15-1205), cross-petition for cert. denied, 136 S. Ct. 2494 (2016). Finally, the release of Abdi and Barrios Ramos from custody does not render their claims moot because, at any time, those decisions could be reversed at Respondents' discretion.
A. Motion to Dismiss Pursuant to Rule 12(b)(l) Respondents argue that this Court lacks jurisdiction to consider Petitioners' claims regarding the denial of temporary parole. (Dkt. 27-1 at 14). Federal courts are courts of limited jurisdiction and possess only that power authorized by Article III of the United States Constitution and statutes enacted by Congress pursuant thereto. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The party asserting jurisdiction bears the burden of establishing that a court has jurisdiction over a particular claim. !d. When a movant challenges subject matter jurisdiction, a district court may "consider affidavits and other materials beyond the pleadings" and "weigh the evidence and satisfy itself as to the existence of its power to hear the case." Iqbal v. Sec 'y, US. Dep 't of
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Homeland Sec., 190 F. Supp. 3d 322, 326-27 (W.D.N.Y. 2016) (citations omitted). However, the court "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Hadees v. Johnson, 5:15-CV-1087, 2016 WL 5349789, at* 1 (N.D.N.Y. Sept. 23, 2016) (citations omitted).
Petitioners were detained pursuant to 8 U.S.C. § 1225(b). That statute provides that if a non-citizen "who is arriving in the United States" indicates an intention to apply for asylum or expresses a fear of persecution or torture, the individual is referred for an interview to determine whether he or she has a credible fear of persecution.2 8 U.S.C. § 1225(b)(l)(A)(ii). If the individual is determined to have a credible fear of persecution, he "shall be detained for further consideration of the application for asylum." !d. § 1225(b)(l)(B)(ii).
An individual detained under § 1225(b) can be paroled "into the United States temporarily" by the Attorney General "in his discretion." !d. § 1182(d)(5)(A). Agency regulations provide that the Secretary of Homeland Security "may invoke" the authority to parole an individual who is "neither a security risk nor a risk of absconding" and meets one or more of a series of conditions, one of which is that "continued detention is not in the public interest." 8 C.F.R. § 212.5(a), (b)(5). The ICE Directive explains how the term "public interest" is to be interpreted. See ICE Directive No. 11002.1. The Directive

2

A credible fear of persecution is defined under the statute as follows: "there is a

significant possibility, taking into account the credibility of the statements made by the

alien in support of the alien's claim and such other facts as are known to the officer, that

the alien could establish eligibility for asylum under [8 U.S.C. § 1158]." 8 U.S.C.

§ 1225(b)(l)(B)(v).

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provides that "[e]ach alien's eligibility for parole should be considered and analyzed on its own merits and based on the facts of the individual alien's case." !d. at~ 6.2. When an arriving alien found to have a credible fear establishes to the satisfaction of ICE his or her identity and that he or she presents neither a flight risk nor a danger to the community, "[ICE] should, absent additional factors ... parole the alien on the basis that his or her continued detention is not in the public interest." !d.
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), "no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security," with the exception of determinations regarding eligibility to apply for asylum under 8 U.S.C. § 1158(a). The Second Circuit has construed the phrase "this subchapter" in § 1252(a)(2)(B)(ii) to mean "subchapter II of Chapter 12 ofTitle 8 ofthe United States Code, which includes§§ 11511381." Sanusi v. Gonzales, 445 F.3d 193, 198 (2d Cir. 2006). The temporary parole sought by Petitioners is governed by § 1182(d)(5)(A), and therefore is subject to the jurisdictional restrictions of§ 1252(a)(2)(B)(ii). In other words, parole decisions are at the discretion of the Attorney General and the Secretary ofHomeland Security; thus, discretionary decisions regarding parole under § 1182(d)(5)(A) are not reviewable by a court, pursuant to § 1252(a)(2)(B)(ii). See, e.g., Viknesrajah v. Koson, No. 09-CV-6442 CJS, 2011 WL 147901, at *2 (W.D.N.Y. Jan. 18, 2011).
Petitioners acknowledge that the Attorney General's discretionary decisions to deny parole are not subject to judicial review. (Dkt. 48 at 15). However, Petitioners contend
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that their challenge rests on the procedures employed by Respondents in administering the parole process-not on the ultimate decision to grant or deny parole. (!d.). Respondents counter that Petitioners' attempt to repackage the true nature of their claims is a distinction without a difference. (Dkt. 49 at 7). Respondents contend that under Giammarco v. Kerlikowske, 665 F. App'x 24 (2d Cir. 2016), Petitioners' challenge is not reviewable. Respondents assert that Giammarco stands for the proposition that the process by which ICE reaches its decisions is itself discretionary and therefore unreviewable.
In Giammarco, the petitioner, who had been removed from the United States as an aggravated felon, filed a petition for a writ of habeas corpus ad testificandum seeking reentry to comply with a legislative subpoena. !d. at 25. The Second Circuit concluded that it lacked subject matter jurisdiction under § 1252(a)(2)(B)(ii) because the habeas petition was an indirect challenge to discretionary decisions by the respondents denying parole, a visa waiver, and a visitor visa. !d. The court explained that it lacked jurisdiction because "a decision in [the petitioner's] favor would render the prior discretionary denials invalid." !d. at 26.
Giammarco is distinguishable from the facts of this case because Petitioners are not challenging the discretionary decision itself. A decision in favor of Petitioners would not compel a particular result with respect to parole, but rather would impact only the execution of the policies and procedures surrounding the ultimate parole decision. Petitioners are not asking this Court to interfere with the ultimate decision regarding parole-that issue would plainly fall outside this Court's jurisdiction pursuant to § 1252(a)(2)(B)(ii). However, Petitioners are asking that this Court ensure that Respondents comply with certain policies
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and procedures in making that parole decision-issues that are beyond the jurisdictional bar of§ 1252(a)(2)(B)(ii).
Indeed, courts have held that the jurisdictional bar in § 1252(a)(2)(B)(ii) is narrow. In Zadvydas v. Davis, 533 U.S. 678 (2001), the habeas petitioner challenged the Attorney General's authority, under the post-removal-period statute, 8 U.S.C. § 1231(a)(6), to detain a removable alien indefinitely beyond the removal period. !d. at 682. The Court recognized that § 1252(a)(2)(B)(ii) bars review of discretionary decisions under the postremoval-period statute-including the decision to detain an alien ordered removed beyond the removal period-but held that the petitioners were not seeking review of the Attorney General's exercise of discretion; "rather, they challenge[d) the extent of the Attorney General's authority under the post-removal-period detention statute." !d. at 688. The Court concluded that "the extent of that authority is not a matter of discretion." !d.
The Second Circuit considered the limits of the jurisdictional bar in Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008). In that case, the plaintiff argued that Immigration and Naturalization Service ("INS")3 had attempted to rescind her status as a Lawful Permanent Resident ("LPR") "without following the mandatory statutory and regulatory procedures governing the rescission of' that status. !d. at 81. INS moved to dismiss the complaint for lack of subject matter jurisdiction, and the district court granted the motion on the basis that § 1252(a)(2)(B)(ii) precluded review. !d. at 82. The Second Circuit reversed, holding that this provision did not bar the plaintiff's unlawful rescission claim
3 The agency formerly called INS is no longer in existence, and some of its functions are now performed by ICE. See Brito v. Mukasey, 521 F.3d 160, 162 n.2 (2d Cir. 2008).
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because "the alleged rescission was not performed in accordance with the mandatory rescission procedures.... Thus, the alleged rescission was not 'specified ... to be in the discretion of the Attorney General."' !d. at 86 (quoting First/and Int'l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir. 2004)).
Here, as in Zadvydas and Sharkey, Petitioners do not challenge the ultimate parole decision under§ 1182(d)(5)(A). Rather, Petitioners allege that Respondents have violated and continue to violate the ICE Directive that they claim to be following. (Dkt. 17 at 2). Petitioners contend that the parole rate has dramatically dropped since January 2017 (id.); that deportation officers told them that parole was no longer available (id. at 15); and Petitioners received denial notices that did not comply with the ICE Directive (id. at 6-7, 12-15). Petitioners do not ask the Court to consider whether any decision to deny parole was improper. Instead, Petitioners seek a ruling that Respondents' failure to follow their own policy directive is unlawful. In other words, Petitioners simply seek compliance with certain minimum procedural safeguards when parole decisions are made-they do not seek to have this Court interfere with the ultimate parole decision. Section 1252(a)(2)(B)(ii) does not bar that claim.
Respondents attempt to distinguish Zadvydas and Sharkey, argumg that the challenges in those cases were grounded in the statutory framework, as opposed to an internal memo. (Dkt. 49 at 8). Petitioners challenge the failure to follow procedures that flow from an internal directive, and Respondents contend that internal directives are not binding. (Dkt. 27-1 at 16-17). According to Respondents, because the procedures that Petitioners seek to enforce are not codified in a statute or regulation, and because the
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decision to grant or deny parole is discretionary, the procedures in the ICE Directive are also discretionary. Respondents argue that this fact divests this Court of jurisdiction because the case is brought under 28 U.S.C. § 2241, the habeas corpus statute, which limits the Court's habeas jurisdiction to reviewing for "statutory or constitutional errors." (!d. at 17-18); Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001).
Respondents are correct that courts in this Circuit have held that federal jurisdiction over § 2241 petitions does not extend to "review of factual or discretionary determinations." Sol, 274 F.3d at 651. However, Respondents improperly characterize Petitioners' claims. Although Petitioners have alleged facts in support of their claim that the Buffalo Federal Detention Facility is failing to abide by the ICE Directive, Petitioners ultimately contend that this failure violated their rights under 8 U.S.C. § 1182(d)(5)(A), 8 C.P.R. § 212.5, and the "Accardi doctrine" (as discussed below).
For the reasons explained below in the analysis of Respondents' motion to dismiss pursuant to Rule 12(b)(6), the Court concludes that Petitioners have asserted questions of law, and that Petitioners' claims therefore fall within this Court's habeas jurisdiction. Accordingly, Respondents' motion to dismiss Petitioners' parole claims under Rule 12(b)( 1) is denied.
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B. Motion to Dismiss Pursuant to Rule 12(b)(6) 1. Parole Claims
In addition to their jurisdictional challenge, Respondents assert that even if Petitioners' parole claims are not precluded by § 1252(a)(2)(B)(ii), those claims are meritless. A court should consider a Rule 12(b)(6) motion to dismiss for failure to state a claim "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor." Ruotolo v. City ofNew York, 514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). The Court "may only consider facts stated in the complaint or documents attached to the complaint." Spikes Bell v. Cont'l Sch. OfBeauty, 11 F. Supp. 3d 403, 406 (W.D.N.Y. 2014). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("The plausibility standard is not akin to a probability requirement. . . . [A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely." (citations, alterations, and internal quotation marks omitted)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration and
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citations omitted). Thus, "at a bare minimum, the operative standard requires the 'plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level."' Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (alteration and citations omitted).
Respondents argue that Petitioners fail to state a claim for relief because the ICE Directive is not binding, and any failure to follow its terms is not subject to legal challenge. (Dkt. 49 at 8-9). Respondents contend that the ICE Directive does not create any rights, privileges, or benefits enforceable against the United States. (!d. at 8). According to Respondents, Petitioners received the process that they are due and cannot assert otherwise on the basis of a failure to comply with the terms of an internal directive.
Petitioners respond that the "Accardi doctrine" dictates that Respondents are bound by the ICE Directive and the procedural steps and substantive criteria that it sets out. (Dkt. 48 at 20-21). In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), the Supreme Court held that "regulations with the force and effect of law supplement the bare bones" of federal statutes. !d. at 265. In that case, the Court vacated a deportation order on the ground that the procedure that preceded the order did not conform to the relevant regulations. !d. at 267-68; see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (striking down a Bureau of Indian Affairs determination that did not comply with procedures set forth in the agency's manual). The Second Circuit later held, in Smith v. Resor, 406 F.2d 141 (2d Cir. 1969), that the Accardi rationale applies even when a court is reviewing "the merits of decisions made within the area of discretion delegated to administrative agencies." !d. at 145. The court explained that courts "have insisted that where the
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agencies have laid down their own procedures and regulations, those procedures and regulations cannot be ignored by the agencies themselves even where discretionary decisions are involved." Id.
In Monti/la v. I.NS., 926 F.2d 162 (2d Cir. 1991), the Second Circuit interpreted the Accardi doctrine in the immigration context and concluded that "[i]ts ambit is not limited to rules attaining the status of formal regulations." !d. at 167. The court explained that "' [w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required,' and even though the procedural requirement has not yet been published in the federal register." !d. (quoting Morton, 415 U.S. at 235).
Following Monti/la, a district court in the Southern District ofNew York held that INS was required to adhere to internal directives in its Parole Project Memorandum, which listed criteria for INS district directors to apply to parole applications and established a process for evaluating detainees' claims. Zhang v. Slattery, 840 F. Supp. 292, 293-96 (S.D.N.Y. 1994). The court rejected the respondents' argument that the memorandum conferred no substantive rights on detainees and lacked the force of law, explaining that the important consideration was that the memorandum affected detainees' rights and was intended to benefit detainees seeking asylum. !d. at 294-95. The court relied on the Eleventh Circuit's decision in Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983), in which that court held that an INS internal operating instruction, while not providing the force and effect of substantive law, did confer "the procedural right to be considered for" deferred
action status. !d. at 663 n. * (internal quotation marks omitted).
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Respondents cite a number of different cases that they assert are controlling. (Dkt. 27-1 at 17). The Court disagrees and concludes that these cases are distinguishable. Respondents argue that in Schweiker v. Hansen, 450 U.S. 785 (1981), the Supreme Court retreated from the broadest reading of Morton when it held, in a per curiam opinion, that an internal manual had no legal force and did not bind the Social Security Administration. Id. at 789. Schweiker addressed the circumstances under which the federal government would be estopped from insisting upon compliance with valid regulations governing the distribution of welfare benefits, and held that a government employee's "minor breach" of a claims manual's internal guidelines did not justify invocation of the estoppel doctrine. !d. at 789-90; see also Edwards v. US. Dep 't ofAgr., 584 F. Supp. 2d 595, 598 (W.D.N.Y. 2008) (citing Schweiker and holding, without further explanation, that the plaintiff could not rely on agency's internal manuals in arguing that it had failed to comply with internal rules in handling his case). Neither Accardi nor Morton are cited in the Schweiker decision, and the Second Circuit has continued to follow the Accardi doctrine after Schweiker. See, e.g., Monti/la, 926 F.2d at 167 (recognizing that "the cases are not uniform in requiring that every time an agency ignores its own regulation its acts must subsequently be set aside," but holding that "[t]he doctrine has continued vitality, particularly where a petitioner's rights are 'affected"').
Respondents also rely on Binder & Binder P.C. v. Barnhart, 481 F.3d 141 (2d Cir. 2007), where the Second Circuit held that the Social Security Administration could not rely on its own internal document to vacate an award of attorney's fees. !d. at 151. However, that case was not governed by Accardi because the "rights of individuals" were not affected
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by the document at issue-the agency sought to rely on the document for its own benefit. !d. at 786. See also James v. US. Parole Comm 'n, 159 F.3d 1200 (9th Cir. 1998) (holding that the petitioner could not rely on an interpretive guideline intended to guide the Parole Commission in its calculation of release dates consistent with the Sentencing Guidelines). And in Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011), relied on by Respondents, the court held only that, in interpreting the phrase "paroled into the United States" in 8 U.S.C. § 1255(a)-the statute that identifies aliens who may seek "adjustment of status"-there was no statutory ambiguity. !d. at 200. The petitioners relied on internal agency memoranda in arguing that Congress intended the phrase "paroled into the United States" in § 1255(a) to include aliens released on "conditional parole" under § 1226(a)(2)(B). !d. The court concluded that the statute was unambiguous on that issue, rejecting the petitioners' attempt to rely on the internal documents to contradict the plain language of the statute. !d. Unlike in Cruz-Miguel, there is no statutory provision that unambiguously governs in this case. This is not a situation where a statute (or regulation) sets forth the procedures to be utilized in evaluating whether an asylum-seeker's "continued detention is not in the public interest," 8 C.F.R. § 212.5(b)(5); rather, the ICE Directive sets forth those procedures.
Nor do the cases that Respondents relied on most heavily at oral argument on this motion resolve the issue. Respondents argued that the court in Thevarajah v. McElroy, No. 01-cv-3009, 2002 WL 923914 (E.D.N.Y. Apr. 30, 2002), declined to hold that INS was bound by certain standards in a 1992 internal memorandum. !d. at *4-5. In reality, the court in Thevarajah did not decide whether the agency was bound to apply the standards
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in the memorandum; instead, the court was "satisfied that [the agency] took [the standards] into appropriate consideration." !d. at *5. The court "reject[ed] [the] petitioner's argument that the District Director failed to apply the proper legal standard in denying ... parole." !d. Similarly, in Naul v. Gonzales, No. 05-4627 (JAG), 2007 WL 1217987 (D.N.J. Apr. 23, 2007), another case cited by Respondents, the court found that the respondents had comported with the guidelines of an internal parole memorandum. !d. at *3 n.8. In that case, the petitioner argued that the internal memorandum "mandate[d] his parole," but the court concluded that it "provide[d] guidance to asylum pre-screening interviewers concerning the decision to recommend parole or not." !d. at *3. Thus, neither Thevarajah nor Naul holds that agencies cannot be bound by internal directives. See also Ferreras v. Ashcroft, 160 F. Supp. 2d 617, 624 (S.D.N.Y. 2001) (stating, without explanation, that "[w]hether the INS followed through on its directive ... is not a constitutional matter generally, nor is it determinative of the statutory provision governing Petitioner's detention").
Respondents also argue that the ICE Directive cannot create any enforceable rights because the document itself provides that it "is not intended to, shall not be construed to, may not be relied upon to, and does not create, any rights, privileges, or benefits, substantive or procedural, enforceable by any party against the United States." ICE Directive No. 11002.1, tj[ 10. Respondents cite In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006), a case that also concerned a regulation with a provision disclaiming the creation of any legally enforceable rights-in that case, Department of Justice ("DOJ") guidelines for issuing subpoenas to news media. The news media sought
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to set aside the finding of civil contempt on the ground that the subpoenas did not comply with the DOJ regulations. Distinguishing Morton, the court explained that the regulation in that case was intended to benefit potential beneficiaries of government assistance, whereas the DOJ guidelines in Judith Miller provided no enforceable rights to individuals and were merely intended to guide the discretion of prosecutors. !d. at 1152.4 Here, in contrast, the ICE Directive-like the procedure at issue in Morton-affects the rights of individuals. The ICE Directive does not simply guide the discretion of immigration officials in making parole determinations. Rather, it sets forth specific procedural rights for asylum-seekers in connection with the parole process, such as being informed in writing as to the reason parole was denied.
In short, Respondents cite no case law that would compel the conclusion that agencies can avoid application of Accardi by simply disclaiming any binding effect in the directive itself. To find otherwise would render the teachings of Accardi and its progeny meaningless. It is not the internal policy itself that creates (or eliminates) the rights of enforcement. Rather, the relevancy of the internal policy is to ascertain whether it pertains to individual rights. If so, under binding Supreme Court and Second Circuit precedent, that internal policy must be followed. In the words of the Supreme Court, "[w]here the

4

Respondents' citation to United States v. Loften, 518 F. Supp. 839 (S.D.N.Y. 1981),

is also not persuasive. There, the court briefly addressed the defendant's claim that the

government had not complied with the U.S. Attorney's Manual in initiating the

prosecution, and the court not only determined that the prosecution was properly

authorized, but also concluded that internal government policies could not thwart a criminal

prosecution. !d. at 857.

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rights of individuals are affected, it is incumbent upon agencies to follow their own
procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required...." Morton, 415 U.S. at 235.5
Here, Respondents represented to the Supreme Court in February 2017 that the ICE
Directive "remains in full force and effect." Supplemental Reply Brief for Petitioners, at
6 n.2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017). In their briefing
submitted in Jennings, Respondents touted the ICE Directive as a reason for their position
that bond hearings are not required for asylum-seekers detained under 8 U.S.C. § 1225(b).
!d. at 5-6. Respondents told the Supreme Court that "the existing framework provides
more than sufficient process" and stated that the ICE Directive "provides for notice to the
alien, an interview, the opportunity to respond and present evidence, a custody
determination ... supervisory review, and further parole consideration based upon changed
circumstances or new evidence." !d. at 6-7. Respondents cannot now contend in this Court
that the ICE Directive does not affect the rights of individuals. Plainly, the ICE Directive
affects the rights of individuals. As a result, Petitioners' contention that Respondents have
5 Petitioners also rely on Bertrandv. Strava, 684 F.2d204 (2d Cir. 1982), to support their argument that Respondents' parole determinations may be challenged for failing to comply with the ICE Directive because non-compliance indicates that the parole determination is not facially legitimate and bona fide. (Dkt. 38-1 at 22). Respondents contend that the "facially legitimate and bona fide" standard no longer applies, in light of the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(ii). (Dkt. 50 at 11-12). See Viknesrajah v. Koson, No. 09-CV-6442 CJS, 2011 WL 147901, at *2 (W.D.N.Y. Jan. 18, 2011) (enactment of§ 1252(a)(2)(B)(ii) limited the applicability of Bertrand by barring review of "discretionary decisions concerning parole"). The Court need not resolve Bertrand's continued applicability at this stage ofthe litigation, since it has determined that Petitioners may challenge the failure to comply with the procedures set forth in the ICE Directive under the Accardi doctrine.
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failed to comply with the procedures set forth in the ICE Directive when making discretionary decisions concerning parole states a valid claim for habeas corpus relief.
2. Bond Hearing Claims Respondents also seek dismissal of Petitioners' claims that their detention without a bond hearing violates 8 U.S.C. § 1225(b) and the Due Process Clause. (Dkt. 27-1 at 21). According to Respondents, Petitioners are arriving aliens and are treated, for constitutional purposes, as if stopped at the border. (!d.); see, e.g., Correa v. Thornburgh, 901 F.2d 1166, 1171 n.5 (2d Cir. 1990) ("Other than protection against gross physical abuse, the alien seeking initial entry appears to have little or no constitutional due process protection."). Therefore, Respondents contend, Petitioners are ineligible for the constitutional protections guaranteed to persons inside the United States. (Dkt. 27-1 at 21). Petitioners are detained pursuant to § 1225(b). Nothing in that statute or the associated regulations limits the length of detention. See Saleem v. Shananhan, No. 16CV-808 (RA), 2016 WL 4435246, at* 2 (S.D.N.Y. Aug. 22, 2016), appealfiled, No. 163587 (2d Cir. Oct. 21, 2016). Furthermore, neither the Supreme Court nor the Second Circuit has addressed whether indefinite detention under § 1225(b) violates the Due Process Clause, but the issue is currently pending before both courts.6 In Lora, the Second Circuit considered the question of indefinite detention in the context of § 1226(c), which mandates detention during the pendency of removal

6

The issue is before the Supreme Court in Jennings v. Rodriguez, No. 15-1204 (U.S.

argued Nov. 30, 2016), and before the Second Circuit in Arias v. Aviles, No. 16-3186 (2d

Cir. filed Sept. 12, 2016) (proceedings stayed pending the outcome of Jennings).

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proceedings of non-citizens who have committed certain criminal offenses. 804 F.3d at 613-16. The Second Circuit joined the Third, Sixth, and Ninth Circuits in concluding that, to avoid "serious constitutional concerns," § 1226(c) must be read to include a temporal limitation on detention. Id. at 613. The Second Circuit, following the reasoning of the Ninth Circuit in Rodriguez v. Robbins, 715 F.3d 1127, 1131 (9th Cir. 2013) ("Rodriguez IF'), held that "an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention." Lora, 804 F.3d at 616. The Court held that the detainee "must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Id. at 616 (quoting Rodriguez II, 715 F.3d at1131).
A number of courts in the Southern District of New York have considered cases involving detention pursuant to§ 1225(b), the statute under which Petitioners in this case are detained. Those courts are split on whether Lora extends to § 1225(b). In Cardona v. Nalls-Castillo, 177 F. Supp. 3d 815 (S.D.N.Y. 2016), the court held that an LPR detained under§ 1225(b) was not entitled to a bond hearing, regardless of the length of detention. Id. at 816. By way of analysis, the court stated only that Lora had addressed the issue in the context of§ 1226(c) and was therefore inapplicable to an individual detained under § 1225(b), and that § 1225(b) and accompanying regulations do not provide for an individualized bond hearing. Id. The court reached the same conclusion in Perez v. Aviles, 188 F. Supp. 3d 328 (S.D.N.Y. 2016). There, the court explained that there had been no
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"unreasonable delay" in pursuing or completing the petitioner's removal, and, thus, no violation of the petitioner's due process rights. !d. at 332.7
By contrast, in Arias v. Aviles, No. 15-CV-9249 (RA), 2016 WL 3906738 (S.D.N.Y. July 14, 2016), appeal filed, No. 16-3186 (2d Cir. Sept. 12, 2016), the district court extended the reasoning in Lora to an LPR detained under§ 1225(b). !d. at *10. The court explained that because the petitioner in that case was an LPR who had traveled abroad only briefly, he possessed "a right to due process just as would a continuously present alien." !d. at *8 (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)). Therefore, the court concluded that the petitioner was entitled to the same rights afforded the petitioner in Lora. !d.; Galo-Espinal v. Decker, No. 17 Civ. 3492, slip op at 4-5 (S.D.N.Y. June 30, 2017) (same, noting the "emerging consensus among courts in this district that due process requires that individuals detained pursuant to Section 1225(b) be provided an individualized bond hearing within six months of detention"); Morris v. Decker, 17-CV02224 (VEC), 2017 WL 1968314, at* 3 (S.D.N.Y. May 11, 2017) (holding that "section 1225(b) must be read to include a six-month limitation on the length of detention of an LPR without an individualized bond hearing"), appeal filed, No. 17-2121 (2d Cir. July 7, 2017); Heredia v. Shanahan, 245 F. Supp. 3d 521, 526 (S.D.N.Y. 2017) (holding LPR

7

Respondents also cite Manu v. Shanahan, 1:16-cv-7581, 2016 WL 5794000

(S.D.N.Y. Sept. 30, 2016), and Gomez v. Decker, 1:17-cv-1726, 2017 WL 1423959

(S.D.N.Y. Mar. 10, 20 17), in support of their argument that individuals detained under

§ 1225(b) are not entitled to bond hearings. Those cases are not on point. United States

District Judge Woods decided both cases and held, identically, that, assuming Lora applies

to detentions under § 1225(b), the petitioners failed to demonstrate that they were entitled

to relief because their detentions had not exceeded six months. Gomez, 2017 WL 1423959

at *2; Manu, 2016 WL 5794000 at *1.

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detained under § 1225(b) was entitled to a bond hearing after six months of detention), appealfiled sub nom. Heredia v. Decker, No. 17-1720 (2d Cir. May 26, 2017); Ricketts v. Simonse, No. 15 Civ. 6662, 2016 WL 7335675, at *4 (S.D.N.Y. Dec. 16, 2016) (same).
Later, in Saleem, the same judge who decided Arias concluded that, for the reasons articulated by the Ninth Circuit in Rodriguez II, the reasoning in Arias applied to a nonresident arriving alien detained under§ 1225(b). Saleem, 2016 WL 4435246 at* 4; see also Rodriguez v. Robbins, 804 F.3d 1060, 1070 (9th Cir. 2015) ("Rodriguez !IF') (rearticulating holding in Rodriguez II), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (20 16). In Rodriguez II, the Ninth Circuit cited to the Supreme Court's decision in Clark v. Martinez, 543 U.S. 371, 381 (2005), and applied the canon of constitutional avoidance to hold that individuals detained under § 1225(b) are entitled to a bond hearing after six months of detention. 715 F.3d at 1141-42; see also Rodriguez III, 804 F.3d at 1082. The court explained that "where one possible application of a statute raises constitutional concerns, the statute as a whole should be construed through the prism of constitutional avoidance." Rodriguez II, 715 F.3d at 1141; see also Rodriguez III, 804 F.3d at 1082. Because§ 1225(b) applies to several categories ofLPRs who are entitled to due process protections, the court explained, prolonged detentions under that statute would raise constitutional concerns. Rodriguez II, 715 F.3d at 1141. Consequently, the court construed the statutory scheme to require a bond hearing after six months for all individuals detained under § 1225(b). !d. at 1144. The Saleem court reached the same conclusion, stating that "[n]ow that this Court has construed§ 1225(b) to avoid constitutional concerns for certain LPRs ... it must apply that construction consistently to [the petitioner]
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irrespective of 'whether or not those constitutional problems pertain to the particular litigant before the Court."' 2016 WL 4435246, at * 4 (quoting Clark, 543 U.S. at 381 (2005)); see Osias v. Decker, 17-CV-02786 (VEC), 2017 WL 3242332, at *5 (S.D.N.Y July 28, 2017), vacated by Osias v. Decker, 2017 WL 3432685 (S.D.N.Y. Aug. 9, 2017)8 (holding "detention ofan asylum seeker ... pursuant to Section 1225(b)(1 )(B)(ii) for longer than six months without an individualized bond hearing violates due process"); see also Transcript of Oral Argument at 70-72, Jacques v. Decker, 17 Civ. 2040 (S.D.N.Y. Aug. 24, 2017) (same), appeal filed, No. 17-3409 (2d Cir. Oct. 23, 2017); Nord v. Decker, 17 Civ. 3679, slip op. at 7-8 (S.D.N.Y. Aug. 23, 2017) (same), appeal filed, No. 17-3412 (2d Cir: Oct. 23, 2017); Francois v. Decker, 17 Civ. 5809, slip op. at 2 (S.D.N.Y. Aug. 16, 2017) (same), appealfiled, No. 17-3316 (2d Cir. Oct. 16, 2017); Clerjuste v. Decker, 17 Civ. 4252, slip op. at 7-8 (S.D.N.Y. Aug. 12, 2017) (same), appeal filed, No. 17-3273 (2d Cir. Oct. 13, 2017); Transcript of Oral Argument at 49-51, Sammy v. Decker, 17 Civ. 2615 (S.D.N.Y. May 25, 2017) (same), appeal filed, No. 17-2260 (2d Cir. July 21, 2017); Celestin v. Decker, 17 Civ. 2419, slip op. at 2 (S.D.N.Y. Apr. 17, 2017) (same), appeal filed, No. 17-1895 (2d Cir. June 15, 2017).
Respondents argue that this court should not follow the lead of the overwhelming majority of courts in this Circuit because those decisions were based on Rodriguez II and III, which, Respondents contend, hinged on facts not relevant to this case. (Dkt. 49 at 14).

8

The decision in Osias was vacated on the grounds that the case was mooted by the

petitioner's release on parole conditioned on payment of a bond. 2017 WL 3432685 at* 1.

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In Rodriguez II and III, the petitioners alleged that some members of the class were LPRs,
not arriving aliens. 715 F.3d at 1142; 804 F.3d at 1083. According to Respondents,
because this case involves an entire proposed subclass of non-LPRs and only consists of
arriving aliens, Rodriguez II and III are inapplicable. (Dkt. 49 at 15).9
Respondents misinterpret Rodriguez II and III as well as Clark, the case on which
the Ninth Circuit relied. The Ninth Circuit noted that the class included LPRs but
ultimately held that the constitutional avoidance doctrine applies "where one possible
application of a statute raises constitutional concerns." Rodriguez III, 804 F.3d at 1082
9 Respondents also cite 8 C.F.R. § 1003.19(h)(2)(i)(B) in support of their argument that bond hearings should not be applied in this context. (Dkt. 27-1 at 24; Dkt. 50 at 29). Although they do not elaborate on the argument in their motion to dismiss or opposition to the preliminary injunction motion, in opposition to the class certification motion Respondents specifically contend that this regulation prohibits an immigration judge from releasing an arriving alien detained under § 1225(b) on bond. (Dkt. 55 at 14). The regulation provides that "an immigration judge may not redetermine conditions of custody imposed by the Service with respect to . . . [a]rriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5) of the Act." 8 C.F.R. § 1003.19(h)(2)(i)(B). It is unclear whether the text of that regulation means, as Respondents argue, that an immigration judge cannot provide a bond hearing for a § 1225(b) detainee who has been detained for more than six months. As is the case here, individuals subject to prolonged detention are unlikely to have been "paroled after arrival." Furthermore, Respondents cite no case law to support their argument, and none ofthe many courts in this Circuit that have required bond hearings under these circumstances have addressed that regulation.
Additionally, none of the courts outside this Circuit that have cited § 1003.19(h)(2)(i)(B) for the proposition for which Respondents cite the regulation have engaged in a textual analysis of its meaning. Moreover, those courts have concluded that due process requires a bond hearing once detention becomes "prolonged." See, e.g., Rodriguez v. Robbins, 715 F.3d 1127, 1143-44 (9th Cir. 2013); Salazar v. Rodriguez, 2017 WL 3718380 (D.N.J. Aug. 29, 2017) (holding that, despite the statutory limitation on bond hearings, an alien detained under§ 1225(b) is constitutionally entitled to a bond hearing once the length of detention becomes "unreasonable").
Accordingly, § 1003.19(h)(2)(i)(B) does not change the Court's analysis about Petitioners' right to a bond hearing once detained for six months.
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(emphasis added). Thus, for the constitutional avoidance doctrine to apply, this Court need not find that this particular class includes LPRs, but only that the statute applies to LPRs.
The majority of the courts in this Circuit that have considered the issue agree, and this Court finds their reasoning, and the reasoning articulated in Rodriguez II and III, persuasive. Section 1225(b) does not permit the indefinite detention of individuals detained under that statute. The courts in this Circuit that have reached the same conclusion have required a bond hearing within six months, and the Court agrees that this is an
appropriate length of time. See, e.g., Saleem, 2016 WL 4435246, at * 5 (interpreting
§ 1225(b) to include a reasonable temporal limitation of six months). The Court acknowledges that the issue is presently before the United States
Supreme Court, and a ruling in Jennings v. Rodriguez, No. 15-1204 (U.S. argued Nov. 30, 2016), could impact the appropriateness of this Court's ruling in this case. However, the Court cannot base its decision on predicting future rulings from higher courts; rather, it must decide this case based on the current state of the law. The Court concludes that, in the Second Circuit, an individual detained pursuant to § 1225(b) is entitled to a Lora bond hearing once detained for more than six months. Accordingly, Petitioners have stated a valid habeas corpus claim.
B. Justiciability Issues: Mootness Respondents argue that Petitioners' individual and class claims have been rendered moot by the release of Abdi and Barrios Ramos to parole supervision (on August 16, 20 17, and September 7, 2017, respectively), because that was the only relief sought by Petitioners in their habeas petition.. (Dkt. 27-l at 27-29; Dkt. 49 at 16). Petitioners respond that
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various exceptions to the mootness doctrine apply, and neither their individual nor their class claims are moot. (Dkt. 48 at 12-15). The Court concludes that the "voluntary cessation" exception to the mootness doctrine applies to Petitioners' individual claims, and as such, the putative class claims remain live controversies as well. Moreover, even if the individual claims were mooted, the putative class claims would survive under the inherently transitory exception to the mootness doctrine.
"The mootness doctrine is rooted in the 'case or controversy' requirement of Article III of the Constitution, which describes 'the principle that, at all times, the dispute before the court must be real and live, not feigned, academic, or conjectural."' Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008) (quoting Russman v. Bd. ofEduc. ofEnlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001)). "A case is moot, and accordingly the federal courts have no jurisdiction over the litigation, when 'the parties lack a legally cognizable interest in the outcome."' Fox v. Bd. of Trs. of State Univ. of NY, 42 F.3d 135, 140 (2d Cir. 1994) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). "When a habeas petitioner has been released from custody after filing a petition, the petition may be moot, and the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the U.S. Constitution." Denis v. DHS/ICE ofBuffalo, 634 F. Supp. 2d 338, 340 (W.D.N.Y. 2009); see Johnson v. Reno, 143 F. Supp. 2d 389, 391 (S.D.N.Y. 2001) ("A habeas corpus petition seeking release from (INS) custody is moot when the petitioner is no longer in (INS) custody."). "Thus, 'under the mootness doctrine, if an event occurs ... that makes it impossible for the court to grant any effectual relief whatever to a
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prevailing party,' [the court] must dismiss the case, rather than issue an advisory opinion." Farez-Espinoza v. Napolitano, No. 08-CV-11060(HB), 2009 WL 1118098, at *4 (S.D.N.Y. Apr. 27, 2009) (quoting ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004)).
"The Supreme Court has 'recognized an exception to the general rule [regarding mootness dismissals] in cases that are capable of repetition, yet evading review."' Lillbask ex rei. Mauclaire v. State of Conn. Dep 't of Educ., 397 F.3d 77, 84-85 (2d Cir. 2005) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).
The capable-of-repetition principle applies only "where the following two circumstances are simultaneously present: ( 1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Russman, 260 F.3d at 119 (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). "A recurrent dispute will 'evade review' if it could not be entirely litigated before again becoming moot, including prosecution of appeals as far as the Supreme Court." !d.
1. Voluntary Cessation Exception to Mootness Doctrine "The voluntary cessation ... exception[] can be thought of as [a] subset[] of a broader exception to mootness for cases that are capable of repetition, yet evading review." Jobie 0. v. Spitzer, No. 03 CIV. 8331(CM), 2007 WL 4302921, at *6 (S.D.N.Y. Dec. 5, 2007) (quotation marks and citation omitted). "It is well settled that 'a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice."' Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City ofMesquite v. Aladdin's Castle, Inc., 455 U.S. 283,289 (1982)). "Were it otherwise, 'courts would be compelled to leave
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the defendant free to return to his old ways."' Farez-Espinoza, 2009 WL 1118098, at *4

(quoting Laidlaw, 528 U.S. at 189).

"The voluntary cessation of allegedly illegal activities will usually render a case

moot if the defendant can demonstrate that (1) there is no reasonable expectation that the

alleged violation will recur and (2) interim relief or events have completely and irrevocably

eradicated the effects ofthe alleged violation." Granite State Outdoor Advert., Inc. v. Town

of Orange, 303 F.3d 450, 451 (2d Cir. 2002) (internal quotation marks and citation

omitted). "[A] party 'claiming that its voluntary compliance moots a case bears the

formidable burden of showing that it is absolutely clear the allegedly wrongful behavior

could not reasonably be expected to recur."' Seidemann v. Bowen, 499 F.3d 119, 128 (2d

Cir. 2007) (quoting NY. Pub. Interest Research Grp. v. Whitman, 321 F.3d 316, 327 (2d

Cir. 2003)). "At bottom, the 'rule traces to the principle that a party should not be able to

evade judicial review, or to defeat a judgment, by temporarily altering questionable

behavior."' Mhany Mgmt., Inc. v. Count of Nassau, 819 F.3d 581, 603 (2d Cir. 2016)

(quoting City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.l (2001)).

Here, Respondents argue that Petitioners' individual claims have been mooted

because both Abdi and Barrios Ramos have been released from detention, which was the

sole remedy requested by Petitioners' habeas petition. (Dkt. 27-1 at 27-29). In response,

Petitioners contend that the "voluntary cessation" exception to the mootness doctrine

applies to this action because Respondents could revoke Abdi's and Barrios Ramos' parole

and indefinitely detain Petitioners once again. (See Dkt. 48 at 13 ). Petitioners cite to the

following regulation:

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[U]pon accomplishment of the purpose for which parole was authorized or when in the opinion of one of the officials listed in paragraph (a) of this section, neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be restored to the status that he or she had at the time of parole. 8 C.F.R. § 212.5(e)(2)(i); see 8 U.S.C. § 1182(d)(5)(A) ("The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, ... and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled. . . ." (emphasis added)). Courts have interpreted the language set forth in this regulatory framework as providing the Attorney General with significant discretion to revoke parole. See, e.g., Samirah v. O'Connell, 335 F.3d 545, 548 (7th Cir. 2003); Centeno-Ortiz v. Culley, No. 11-CV-1970-IEG POR, 2012 WL 170123, at *3-4 (S.D. Cal. Jan. 19, 2012); Sillah v. Davis, 252 F. Supp. 2d 589, 597 (W.D. Tenn. 2003). Here, Petitioners were paroled after they filed this action. Respondents have since revoked Abdi's parole, but no explanation for this revocation appears in the record and he remains out of custody. Indeed, the declaration of Thomas Brophy, Acting Director of the ICE Buffalo Field Office, does not elaborate upon the circumstances underlying the revocation. (Dkt. 27-2 at~ 2 ("[Abdi's] parole was revoked by the St. Paul, MN ERO Field Office on August 23, 20 17. ICE, at this time, has no intention of taking Abdi back into custody.")).
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Respondents state that they do not intend to re-detain Abdi "at this time." (!d.).

Notably, the "voluntary cessation" exception will not apply if Respondents can

demonstrate that "subsequent events made it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189 (emphasis

added); see Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991) (finding the doctrine

of voluntary cessation to be inapplicable where "the government filed a declaration of the

director of the Los Angeles District Office of the INS who reiterated under oath" that the

petitioner "will be paroled for another year" absent the occurrence of certain circumstances

outside the government's control); Farez-Espinoza, 2009 WL 1118098, at *4

("[D]efendants have been found to satisfy their burden by, for example, submitting a sworn

affidavit disavowing any intent to ever repeat the challenged conduct."). Although Acting

Director Brophy's declaration avers that Respondents do not intend tore-detain Abdi "at

this time" (Dkt. 27-2 at ~ 2), this language leaves open the possibility that Respondents

could, on a whim, change course and decide to re-detain Abdi. Thus, the submitted

declaration fails to carry Respondents' heavy burden of demonstrating that the challenged

conduct will not reoccur. See Farez-Espinoza, 2009 WL 1118098, at *4 ("A general

disclaimer of intent to revive the allegedly unlawful conduct is insufficient in itself to

overcome the defendant's heavy burden."); see also Mhany Mgmt., Inc., 819 F.3d at 604

("We are unpersuaded that the County has committed to this course permanently."

(emphasis added)); Centeno-Ortiz, 2012 WL 170123, at *4-5 (distinguishingPircin-Peron

because the government declaration reserved the ability to re-detain the petitioner at its

discretion).

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Moreover, Petitioners correctly assert that Respondents have substantial discretion to revoke their parole. At oral argument, counsel for Respondents confirmed that Respondents believe they can re-detain Abdi or Barrios Ramos at a moment's notice for essentially any reason. In Farez-Espinoza, the Southern District ofNew York concluded that the voluntary cessation exception applied to the petitioner's habeas petition because "under the Government's view, it has full statutory authority to revoke the bond andredetain her." 2009 WL 1118098, at *7. Indeed, "the Government maintained that it was 'unquestionably permitted to detain [Farez-Espinoza] in any instance."' !d.; see Rodriguez v. Hayes ("Rodriguez!"), 591 F.3d 1105, 1117-18 (9th Cir. 2010) (applying the voluntary cessation doctrine in holding that the petitioner's release to parole did not moot his habeas petition).
Therefore, because Respondents assume the position that they may revoke Petitioners' parole at any time, for any reason-as Petitioners suggest happened to AbdiPetitioners' individual claims must receive the benefit ofthe "voluntary cessation" doctrine because the re-detention of Petitioners falls within Respondents' broad discretionary control. See Centeno-Ortiz, 2012 WL 170123, at *4-5; Farez-Espinoza, 2009 WL 1118098 at *7; cf Picrin-Peron, 930 F.2d at 776. A contrary holding would permit Respondents to "return to [their] old ways" by subjecting Petitioners to a second round of prolonged detention. Laidlaw, 528 U.S. at 189.
2. Inherently Transitory Exception to the Mootness Doctrine Here, because Petitioners' individual claims are not moot, Petitioners need not rely on the inherently transitory doctrine to save the viability of the putative class claims.
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Nonetheless, for purposes of completeness and because it is relevant to the Court's consideration of the preliminary injunction on a class-wide basis, the Court addresses the applicability ofthis doctrine and finds that, in the alternative, the claims are not moot under the inherently transitory doctrine.
The "inherently transitory" exception to the mootness doctrine applies to class actions where it is uncertain whether the court will be able to timely rule upon the certification of the class "before the proposed representative's individual interest expires." Comer v. Cisneros, 37 F.3d 775, 799 (2d Cir. 1994) (quotation marks and citation omitted); Reynolds v. Lifewatch, Inc., 136 F. Supp. 3d 503, 513 (S.D.N.Y. 2015) (same). Thus, where the named class representative no longer can maintain a personal interest in the litigation, the inherently transitory doctrine may still save the class action.
The Supreme Court has long recognized a "narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class." Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). This type of claim has been described as "inherently transitory." See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) ("We recognized in Gerstein that '[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires."' (quoting United States Parole Comm 'n v. Geraghty, 445 U.S. 388,399 (1980))).
It is well-established that "[a] prisoner's length of stay at a particular prison or within a prison system is 'inherently transitory and cannot be determined from the outset."' Clarkson, 783 F. Supp. at 799 (quoting Jane B. v. N.Y. C. Dep 't ofSoc. Servs., 117 F.R.D.
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64, 68 (S.D.N.Y. 1987)). Claims arising out of pretrial detentions, or detentions for "sentences of one year or less" are also "inherently transitory," Butler v. Suffolk County, 289 F.R.D. 80, 91 (E.D.N.Y. 2013); see Gerstein, 420 U.S. at 111 n.ll, as are claims asserted by persons waiting on federal housing lists, some for years at a time, Comer, 37 F.3d at 799.
While the temporal nature of a claim may suggest whether it is "inherently transitory" or not, the application of this exception is by no means restricted to "timelimited" assertions. Marisol A. v. Giuliani, No. 95-CV-10533 (RJW), 1998 WL 265123, at *6 (S.D.N.Y. May 22, 1998). In fact, the Second Circuit, in applying the exception to "housing discrimination suits," has stated that such actions "are acutely susceptible to mootness because ofthefluid composition ofthe public housing population." Comer, 37 F.3d at 797 (emphasis added); see Marisol A., 1998 WL 265123, at *6 (finding that "the population ofNew York City's child welfare system is equally fluid, ... [as c]hildren enter and leave the system all the time"); see also Zurakv. Regan, 550 F.2d 86,92 (2d Cir. 1977) (applying the exception to "inmates serving definite sentences of more than 90 days at Rikers Island ... who are or will become eligible for conditional release ... [b]ecause of the relatively short periods of incarceration involved and the possibility of conditional release"). Several out-of-circuit district courts have also held that claims arising out of immigration detentions are "inherently transitory." See, e.g., Rivera v. Holder, 307 F.R.D. 539, 548 (W.D. Wash. 2015); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 183 (D.D.C. 2015); Lyon v. US. Immigration & Customs Enf't, 300 F.R.D. 628, 639 (N.D. Cal. 2014),
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modified, 308 F.R.D. 203 (N.D. Cal. 2015); Moreno v. Napolitano, No. 11-CV-5452, 2012 WL 5995820, at *7 (N.D. Ill. Nov. 30, 2012).
The principles underlying these cases carry equal force in the instant matter. The provisions of 8 U.S.C. § 1225 mandate the detention of an arriving alien who successfully demonstrates a credible fear of persecution in his or her homeland. See id. § 1225(b)(1)(B)(ii). "The mandatory nature of this detention is tempered by statute as a matter of executive grace through the Attorney General's wholly discretionary parole authority under 8 U.S.C. § 1182(d)(5)(A) to release an alien temporarily on parole...." Ahad v. Lowe, 235 F. Supp. 3d 676, 686 (M.D. Pa. 2017). As such, the duration of the putative class members' detention is not clear from the outset, and there is a strong possibility that they could be released prior to class certification. See Gerstein, 420 U.S. at Ill n.ll ("The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance...."); Zurak, 550 F.2d at 92 (noting the "possibility of conditional release" in applying the inherently transitory claims exception); Lyon, 300 F.R.D. at 639 ("As in Gerstein, the length of detention cannot be ascertained at the outset and may be ended before class certification by various circumstances."); see also Olson v. Brown, 594 F.3d 577, 583 (7th Cir. 2010) (applying the exception where "[t]he duration of [the plaintiffs] claim was at the discretion of the Indiana Department of Correction" since "[a]n individual incarcerated in a county jail may be released for a number of reasons that he cannot anticipate"); Moreno, 2012 WL 5995820, at *7 ("[T]he duration of the 1-247 detainers could not be determined at the outset; they were subject to the discretion ofiCE officials and beyond [the p]laintiffs' control. ... [The p]laintiffs have
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no way of knowing what course an ICE investigation might take or when ICE might lift the detainers against them, if at all.").
Furthermore, despite months of detention and several form denials of Petitioners' parole requests, upon the filing of this action, Respondents swiftly requested additional information from Petitioners and granted parole to Abdi and Barrios Ramos. (See Dkt. 17 at 6-8, 12-15; Dkt. 27-1 at 27-28). Respondents' actions "illustrate the inherently transitory nature of [Petitioners'] claims." Moreno, 2012 WL 5995820, at *7 n.4; see White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977) ("Refusing to [apply the exception] would mean that the [Social Security Administration] could avoid judicial scrutiny of its procedures by the simple expedient of granting hearings to plaintiffs who seek, but have not yet obtained, class certification. We do not suggest that this occurred here, but we must take notice of the 'reality' of that possibility in the future."); see also Goetz v. Crosson, 728 F. Supp. 995, 1004 (S.D.N.Y. 1990) ("[T]he possibility that the defendants could intentionally moot the named plaintiffs' claims sufficiently justifies class certification.").
In addition, as members of the putative class are released to parole, more asylumseekers will undoubtedly arrive at the Buffalo Federal Detention Facility and successfully demonstrate the existence of a credible fear of persecution. Indeed, the monthly fluctuations in detainee population and the influx of new asylum-seekers provides good reason for the Court to "safely assume" that the composition of the putative class and subclass will remain fluid. (See Dkt. 19-3 at 2, 8; Dkt. 19-5); see, e.g., Gerstein, 420 U.S. at 111 n.ll; Comer, 37 F.3d at 797.
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As a result, even if the individual claims were moot (which, as noted above, they are not under the voluntary cessation doctrine), Petitioners' putative class action claims would continue to present a justiciable controversy pursuant to the inherently transitory doctrine. II. Petitioners' Motion for a Preliminary Injunction
Petitioners seek a preliminary injunction ordering Respondents "to adjudicate or, where appropriate, readjudicate parole applications for all putative class members in conformance with their legal obligations, including by adhering to all the requirements of the ICE Directive." (Dkt. 38 at 1). Additionally, Petitioners seek preliminary injunctive relief requiring all "putative class members at Batavia who have been detained for six months or more" to be provided individualized bond hearings at which "immigration judges shall order release on bond unless 'the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community."' (!d. (citing Lora, 804 F.3d at 616)).
In order to obtain a preliminary injunction, the moving party must establish the following: (1) a likelihood of irreparable harm absent preliminary relief; (2) a likelihood of success on the merits; (3) the balance of equities tipping in favor of the moving party; and (4) the public interest is served by an injunction. See Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008). Where the moving party is unable to demonstrate a likelihood of success on the merits, a court may still issue a preliminary injunction ifthe moving party demonstrates '"sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party
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requesting the preliminary relief."' Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)).
"Normally, the purpose of a preliminary injunction is to maintain the status quo ante pending a full hearing on the merits. Occasionally, however, the grant of injunctive relief will change the positions of the parties as it existed prior to the grant." Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985) (internal citations omitted), overruled on other grounds, O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). "A higher standard applies ... if the requested injunction is 'mandatory,' altering rather than maintaining the status quo, or if the injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if defendant prevails at a trial on the merits." People for Ethical Treatment ofAnimals v. Giuliani, 105 F. Supp. 2d 294, 303 (S.D.N.Y. 2000), adopted, No. 00 CIV. 3972 (VM), 2000 WL 1639423 (S.D.N.Y. Oct. 31, 2000), aff'd, 18 F. App'x 35 (2d Cir. 2001). The Second Circuit has "held that a mandatory injunction should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Tom Doherty Assocs. v. Saban Entm 't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (internal quotation marks and citation omitted).
Here, Petitioners have satisfied the standard for preliminary injunctive relief on behalf of themselves and the putative class members. Petitioners have plainly established on behalf of themselves and the putative class irreparable harm absent preliminary injunctive relief, and they have also established a likelihood of success on the merits.
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Although~ the grant of preliminary injunctive relief will alter the status of the parties in that Petitioners will be afforded certain procedural protections that they are not otherwise receiving, the relief is nonetheless warranted because, to act otherwise would mean that these individuals would be detained without any appropriate process, resulting in extreme or very serious irreparable damage. As a result, for the reasons discussed further below, Petitioners' motion for a preliminary injunction (Dkt. 38) is granted.
A. Granting Relief to Putative Class Prior to Class Certification A threshold issue that the Court must address is whether it is appropriate to grant preliminary injunctive relief to the putative class members prior to class certification. On August 25, 2017, before applying for a preliminary injunction, Petitioners moved to certify the class, seeking certification of the following class and subclass: Class: All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole. Subclass: All arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been or will be detained for more than six months without a bond hearing before an immigration judge. (Dkt. 19 at 1). The Court issued a briefing schedule concerning the class certification motion (Dkt. 20), but instead of filing responding papers by the deadline set by the Court, Respondents filed a motion to stay the class certification motion pending resolution of Respondents' subsequently-filed motion to dismiss (Dkt. 33). The Court issued a briefing schedule concerning the motion to stay, and held the schedule for briefing on the class certification motion in abeyance until further order of the Court. (Dkt. 35). In response,
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Petitioners opposed the motion to stay, but alternatively did not oppose a stay to the extent that the Court did not consider it necessary to wait for class certification before entering class-wide relief. (Dkt. 42). Petitioners argued that the absence of a final ruling on the class certification motion would not preclude class-wide relief at the preliminary injunction stage. (!d. at 3-4). After the oral argument on October 27, 2017, this Court issued a Text Order denying the motion to stay the class certification motion and setting a briefing schedule for the class certification motion. (Dkt. 52). As of the writing of this Decision and Order, Respondents have submitted their papers in opposition to the class certification motion (Dkt. 55), but the motion has not been decided.
Under appropriate circumstances, a court may grant preliminary injunctive relief in favor of putative class members before class certification, and correspondingly, assess the harm to putative class members when considering the preliminary injunction motion. See Ligon v. City ofNew York, 925 F. Supp. 2d 478, 539 (S.D.N.Y. 2013) (issuing preliminary injunctive reliefbefore class certification without any prior finding of liability); Strouchler v. Shah, 891 F. Supp. 2d 504, 518-19 (S.D.N.Y. 2012) (finding that class certification was likely and considering facts relating to putative class members when adjudicating preliminary injunction motion); Dodge v. County ofOrange, 209 F.R.D. 65, 77 (S.D.N.Y. 2002) (granting proposed class preliminary injunctive relief before certifying the class); William B. Rubenstein, Newberg on Class Actions§ 4:30 (5th ed. 2017) ("[A] court may issue a preliminary injunction in class suits prior to a ruling on the merits.").
In LaForest v. Former Clean Air Holding Co., 376 F.3d 48 (2d Cir. 2004), the Second Circuit affirmed the district court's grant of preliminary injunctive relief in favor
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of the putative class, which the district court granted in reliance on affidavits from unnamed plaintiffs. !d. at 57. Respondents argue that LaForest is not applicable here because, in that case, the district court issued a preliminary injunction only after it had found for the plaintiffs on the issue of liability. (Dkt. 50 at 32). Although the Second Circuit considered the procedural posture in LaForest "relevant," it did not hold that the prior finding of liability was determinative with respect to whether the district court properly permitted the plaintiffs "to adduce evidence of harm representatively." 376 F.3d at 57-58. The Second Circuit stated that plaintiffs "should" be permitted to do so as "long as they lay a foundation that the representative plaintiffs are similarly situated with regard to the issue of irreparable harm." !d. at 58. Respondents do not cite any authority that confines LaForest to the narrow application posited in their memorandum of law, and Respondents' attempt to distinguish LaForest is unpersuasive.
LaForest recognized a divergence of opinion among courts that have considered whether an appropriate foundation was laid for reliance on alleged irreparable harm to putative class members. !d. (citing Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000), and United Steelworkers v. Textron, Inc., 836 F.2d 6 (1st Cir. 1987)). The Second Circuit left open the issue concerning the governing approach, but indicated that "[d]etermining whether plaintiffs have laid such a foundation is a case-sensitive inquiry subject to review for abuse of discretion." !d.; cf Gardner v. CAN Fin. Corp., 3:13 CV 1918 (JBA), 2016 WL 96141, at *8 (D. Conn. Jan. 8, 2016) (discussing different approaches among courts in determining evidentiary proof required to demonstrate irreparable harm among putative class members, and concluding "this is not an appropriate
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situation in which to issue a broad preliminary injunction prior to the class being certified because plaintiffs have failed to provide adequate evidence that the putative class members are suffering from the irreparable harm that plaintiffs are alleging").
In this case, after considering the motion for class certification and Respondents' opposition, and while recognizing that the motion remains undecided, the Court finds that class certification is likely based upon a consideration of factors set forth in Federal Rule of Civil Procedure 23. Furthermore, the Court concludes that the irreparable harm alleged by the putative class members should be considered when assessing Petitioners' request for a preliminary injunction because the motion papers establish that the asylum-seekers who have been held in Batavia are similarly situated.
Specifically, this Court finds that Petitioners are likely to satisfy the Rule 23(a) prerequisites for class certification: "numerosity, commonality, typicality, and adequacy of representation." Sykes v. Mel S. Harris & Assocs., 780 F.3d 70, 80 (2d Cir. 20 15). Petitioners proposed class is sufficiently numerous, and Respondents have not disputed that point. (Dkt. 55 at 15 n.2). While Respondents challenge the commonality and typicality requirements, they largely base their opposition on their merits-based challenges to the underlying claims (id. at 18-24), which have been rejected by this Court, as discussed above. Respondents also contend that Petitioners' claims require individualized factual determinations and Petitioners cannot establish that common facts apply to each purported class member. (!d. at 21-22). That argument misconstrues the relief sought by Petitioners, which is not an individualized determination as to whether to grant parole or bond, but rather a request that certain procedural protections be applied across-the-board when
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making those individualized determinations. See Wal-Mart Stores, Inc. v. Dukes, 131 U.S. 338, 349-50 (2011) (commonality is satisfied where even a single issue of law or fact is common to the class, and where a classwide proceeding is capable of "generat[ing] common answers apt to drive the resolution of the litigation."); Johnson v. Nextel Commc'ns Inc., 780 F.3d 128, 137 (2d Cir. 2015) ("The claims for relief need not be identical for them to be common; rather, Rule 23(a)(2) simply requires that there be issues whose resolution will affect all or a significant number of the putative class members."); Robidoux v. Celani, 987 F.2d 931,936-37 (2d Cir. 1993) ("When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims."); V. W by and through Williams v. Conway, 236 F. Supp. 3d 554, 576 (N.D.N.Y. 2017) (typicality requirement satisfied because the claims of the class representatives and the members of the class and subclass were "based on the common application of certain challenged policies." (citing Sykes, 285 F.R.D. at 287)).
With respect to the adequacy of the class representative, Petitioners propose only Barrios Ramos as class representative. (Dkt. 19-1 at 17 n. 7). "Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members." Denney v. Deutsche BankAG, 443 F.3d 253,268 (2d Cir. 2006). Respondents argue that Barrios Ramos is not an adequate representative because he has been released to parole and his asylum proceeding has been transferred to another district. (See Dkt. 55 at 16-18).
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According to Respondents, Barrios Ramos will be unable to vigorously pursue the class claims because his claims have been mooted and he is no longer a part of the class he seeks to represent. (!d. at 18). As discussed above, Barrios Ramos' individual claims fall within the voluntary cessation exception to the mootness doctrine. However, even ifhis individual claims were moot, this would not adversely affect the class action claims or Barrios Ramos' capacity to continue litigating the class claims on behalf of the putative class and subclass because the inherently transitory doctrine applies, as also discussed above.
The individual and class claims are readily susceptible to exceptions to the mootness doctrine, which only further buttresses the justification for class certification. See Wagafe v. Trump, No. 17-CV-0094 (RAJ), 2017 WL 2671254, at* 15 (W.D. Wash. June 21, 2017) ("[The d]efendants' argument that the mooting of named [p]laintiffs' claims requires a finding that they are inadequate representatives, thus defeating class certification, does not have the desired effect. In fact, it counsels in favor of granting class certification."); Goetz, 728 F. Supp. at 1004.
Furthermore, the principles underlying the inherently transitory exception suggest that substitution of a new class representative is not required, even when the individual claims are moot. See White, 559 F.2d at 857-58 (permitting the class representative to continue litigating the class claims even after his individual claims were rendered moot); In re Thornburgh, 869 F.2d 1503, 1509 n.7 (D.C. Cir. 1989) (recognizing that "[s]ome courts ... have permitted the original named plaintiffs to represent the class even after their own claims were mooted prior to certification," but suggesting "that such treatment is proper only in special circumstances, such as where the alleged law violation is capable of
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repetition, yet evading review"). The core rationale of the inherently transitory exception is that the viability of the class action should not be tied to the viability of individual claims that may be rendered moot prior to class certification due to their inherent fluidity. Indeed, if Petitioners are required to name new representatives every time an individually-named party is released from custody, there is nothing stopping Respondents from attempting to moot this case by targeting each class representative for parole. See White, 559 F.2d at 857; Goetz, 728 F. Supp. at 1004.
Therefore, even if Barrios Ramos' individual claims are extinguished, he' may still be eligible to carry the mantle of class representative for the time being. See Monaco v. Stone, 187 F.R.D. 50, 60 (E.D.N.Y. 1999) (applying the "inherently transitory" exception and stating that "plaintiffGregory Monaco may still act as the named representative for the proposed plaintiff class despite the loss of his individual claims[, because a] named plaintiff may still litigate a class action despite the loss of their personal stake if the claims are 'capable of repetition, yet evading review."' (quoting Geraghty, 445 U.S. at 398)); cf Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980) (rejecting the argument that "the absence of any intervenor or substitute named plaintiff' would not moot the class claim because, among other things, Geraghty did not apply). Respondents rely on two cases where the courts found inadequate representation once the named representative was no longer part of the class he sought to represent. Norman v. Conn. State Bd. ofParole, 458 F.2d 497, 499 (2d Cir. 1972); Kenavan v. Empire Blue Cross & Blue Shield, No. 91-CV2393 (KMW), 1996 WL 14446, at *4 (S.D.N.Y. Jan. 16, 1996), aff'd sub nom. Schmookler
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v. Empire Blue Cross & Blue Shield, 107 F.3d 4 (2d Cir. 1997). However, these cases are inapposite as they do not apply either of the exceptions to mootness discussed here.
Of course, when the Court issues a decision on the motion to certify it "must assure itselfthat the named representative will adequately protect the interests ofthe class." Sosna v. Iowa, 419 U.S. 393,403 (1975); Basel v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977) ("Whether or not the challenged regulations raise a live controversy with regard to appellant's individual claim, it is clear that a live controversy exists with regard to class members who are currently being denied prior hearings as a result of the regulations. Of course, in order for appellant to serve as the class representative, the district court must assure itself that [she] will adequately represent the interests of the class." (internal quotation marks omitted)). Accordingly, Petitioners may be required to substitute a member of the putative class as the class representative if the Court determines that Barrios Ramos' representation "will [not] fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4).
However, at this stage of the proceedings, the Court concludes that class certification is likely and, as a result, Petitioners should be permitted to adduce evidence of harm representatively. 10 For the reasons set forth below, the Court finds that the
10 In addition to likely meeting the requirements of Rule 23(a), the Court concludes that Petitioners will also likely be able to demonstrate that Respondents have "acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). "The key to the (b)(2) class is the indivisible nature ofthe injunctive or declaratory remedy warranted-the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (internal quotation marks and citation
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individuals who have submitted sworn declarations in support of the preliminary injunction
motion have established a strong showing of irreparable harm, and the harms those
individuals face are representative of prospective class members generally. Accordingly,
the Court will consider the application for preliminary injunctive relief in the context of
the putative class members as a whole.
B. Irreparable Harm
The most important prerequisite to issuing a preliminary injunction is irreparable
harm. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009).
Plaintiffs seeking preliminary injunctive relief must affirmatively "demonstrate that absent
a preliminary injunction they will suffer an injury that is neither remote nor speculative,
but actual and imminent, and one that cannot be remedied if a court waits until the end of
trial to resolve the harm." !d. (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481
F.3d 60, 66 (2d Cir. 2007)). "The movant is required to establish not a mere possibility of
irreparable harm, but that it is 'likely to suffer irreparable harm if equitable relief is
denied."' Johnson Controls, Inc. v. A.P. T. Critical Sys., Inc., 323 F. Supp. 2d 525, 531
omitted). "Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of the types of actions authorized by Rule 23(b)(2). Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Although an evaluation of each putative class member's situation may produce circumstances unique to their particular detention, Petitioners have demonstrated deficiencies in the procedures employed by Respondents that "stem from central and systemic failures" and apply across-the-board to each putative class member. See Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) ("Defendants further claim that due to the unique circumstances of each plaintiffs experience with the child welfare system, the defendants have not acted on grounds generally applicable to the class. We disagree. Insofar as the deficiencies of the child welfare system stem from central and systemic failures, the district court did not abuse its discretion in certifying a 23(b)(2) class at this stage of the litigation.").
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(S.D.N.Y. 2004) (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990)).
1. Sworn Declarations Submitted by Petitioners Based on the record before the Court, Petitioners have established irreparable harm through the negative physical and mental health effects of prolonged detention and the fact that their continued detention has prevented putative class members from adequately preparing for their asylum hearings before an immigration judge. In support of their motion, Petitioners have attached numerous declarations detailing the ways that Respondents have violated the ICE Directive and the harm caused by the ongoing violations. Many of these putative class members affirm that they have been detained at the Buffalo Federal Detention Facility for months at a time. (See, e.g., Dkt. 38-4 at 3 (since February 2017); Dkt. 38-5 at 4 (since October 2016); Dkt. 38-6 at 2 (since January 2017); Dkt. 38-7 at 2 (since February 2017); Dkt. 38-8 at 2 (since May 2017); Dkt. 38-9 at 3 (since December 2016, and did not receive a credible fear interview until two months later); Dkt. 38-10 at 2 (since December 2016); Dkt. 38-11 at 2 (since January 2017); Dkt. 38-12 at 2 (since January 2017); Dkt. 38-13 at 2 (since October 2016); Dkt. 38-14 at 2 (since January 2017); Dkt. 38-15 at 2 (since January 2017); Dkt. 38-16 (from February 2017 to September 2017 when he was released)). The "average length of detention" for the detainees who allegedly form the putative subclass is 387 days, with the longest-recorded detention being 1,057 days. (Dkt. 51-1 at 2; see id. at 11 (since January 20 17), 19 (since November 20 16), 29 (since December 2016), 35 (since October 2016), 46 (since January 2017), 51 (since October 2016), 59 (since September 2016), 86 (since December 2016)). Having already
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determined that § 1225(b) contains an implicit time restriction requiring Respondents to hold a bond hearing for detained asylum-seekers after six months ofconfinement, the Court further concludes that the continued detention of these individuals for such prolonged durations directly contravenes this implied statutory right and constitutes irreparable harm.
The putative class members allege that they have been denied multiple requests for parole via perfunctory form denials, despite the fact that several declarants allege that they provided ICE with sufficient documentation. (Dkt. 38-4 at 3-4; Dkt. 38-5 at 5-6; Dkt. 386 at 3; Dkt. 38-7 at 3; Dkt. 38-8 at 3; Dkt. 38-9 at 3-4; Dkt. 38-10 at 3; Dkt 38-11 at 3; Dkt. 38-13 at 3; Dkt. 38-15 at 3; Dkt. 38-16 at 3; see also Dkt. 51-1 at 11-17,20,24,27,29-30, 33, 35-36, 51-52, 70-71). Furthermore, many declarants also aver that those form denials did not adequately explain the deficiencies in their applications or what documentary materials would be sufficient. (See Dkt. 51-1 at 12, 20, 30, 52, 60, 71). The ICE Directive requires Respondents to provide "a brief explanation of the reasons for any decision to deny parole." ICE Directive No. 11002.1, ~ 6.5. The Directive also requires that the letter notification inform the individual that "he or she may request redetermination of this decision based upon changed circumstances or additional evidence relevant to the alien's identity, security risk, or risk of absconding." !d. "[A]bsent reasonable justification for delay," written decisions are to be provided to the alien within seven days of the parole interview or the requested redetermination decision. ICE Directive No. 11002.1, ~ 6.6.
The Court has reviewed numerous two-sentence form denials issued by Respondents that were submitted as part ofPetitioners' papers. These letters do not provide a meaningful "explanation" setting forth "the reasons for denying parole." ICE Directive
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No. 11002.1, ,-r 6.5. Since each individual's application is analyzed "on its own merits and based on the facts of the individual alien's case," id. ,-r 6.2, blanket denials that forgo explaining the specific deficiencies in an individual's application is a derogation of the requirements of the ICE Directive.
Indeed, many of Petitioners' declarants allege that they were never provided with any paperwork explaining how to seek parole, and a number of those who were provided paperwork were not English speakers and did not receive the documents in their native languages. (Dkt. 38-6 at 3; Dkt. 38-7 at 2-3; Dkt. 38-8 at 2; Dkt. 38-9 at 3-4; Dkt. 39-10 at 2; Dkt. 38-12 at 2; Dkt. 38-15 at 3; see also Dkt. 51-1 at 11, 19, 46, 59). Pursuant to the ICE Directive, ICE "shall provide" an arriving alien with a "Parole Advisal and Scheduling Notification" "[a]s soon as practicable following a credible fear determination." ICE Directive No. 11002.1, ,-r 6.1. That form is intended to inform the alien that he or she "will be interviewed for potential parole ... and notifies the alien of the date of the scheduled interview and the deadline for submitting any documentary material supporting his or her eligibility for parole." !d. Furthermore, the notification "shall be explained to such aliens in a language they understand." !d.
In addition, several declarants further aver that their prolonged detention substantially burdened their ability to adequately prepare for an asylum hearing before an immigration judge. (See Dkt. 38-6 at 3; Dkt. 38-7 at 3; Dkt. 38-10 at 3; Dkt. 38-12 at 3; Dkt. 51-1 at 12, 30, 60). Detention under § 1225(b) is intended only as a temporary measure pending further review of the detainee's asylum application by an immigration judge. See 8 U.S.C. § 1225(b)(i)(B)(ii) ("[T]he alien shall be detained for further
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consideration of the application for asylum."). The prolonged nature of these detentions has limited the detainees' capacity to contact friends and family in their native countries. The restrictions have hampered the detainees' preparation for upcoming asylum hearings, which undermines the very purpose of providing asylum-seekers a hearing. See Celestin, 17 Civ. 2419, slip. op. at 5-6 (bench decision finding that administrative exhaustion was not required where the alien detainee was likely to suffer irreparable harm because "he [was] deprived of his liberty and specifically s[ought] relief from detention so that he c[ould] gather evidence for his asylum hearing," and noting that the communication challenges he faced while detained made it difficult to prepare for the hearing).
Many putative class members also allege various physical and psychological impairments that have resulted from or worsened due to their prolonged confinement. (See Dkt. 38-4 at 4 ("I have been diagnosed with PTSD."); Dkt. 38-5 at 6 (noting "anxiety and depression" and "trouble breathing"); Dkt. 38-11 at 2-3 (noting several hospitalizations for significant ear pain, and "no hearing in [his] right ear and a lot of pain in [hi]s left ear, because the eardrum is perforated and infected"); Dkt. 38-12 at 3 (noting asthma and "breathing problems and so much pain in [his] knees that [he] cannot stand," as well as "very bad headaches that make [him] dizzy and give [him] nose bleeds"); Dkt. 38-15 at 3 (noting a "hernia" and that he has "collapsed from abdominal pain"); Dkt. 51-1 at 12 (noting a "fractured bone in [his] hand" and that he is suffering from a "serious" condition of "thrombosis")). The allegations by Petitioners and members of the putative class of diminished physical and mental health conditions constitute significant burdens upon the detainees' well-being. See Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)
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(recognizing that immigration detention provides only "subpar medical and psychiatric care" and yields "economic burdens [that are] imposed on detainees and their families[, and] ... collateral harms to children of detainees whose parents are detained"); see also Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (finding that the plaintiff's "sworn statement that he suffers from headaches, hair loss, rashes, and an inability to walk without difficulty" indicated that he "has suffered physical effects of his confinement" and this "serve[d] as an independent basis" to establish the likelihood of irreparable harm).
Lastly, it is worth noting that Petitioners do not seek monetary judgments; rather, they ask to receive the full and fair process afforded to them under the law-procedural rights unduly denied them as detainees ofthe Buffalo Federal Detention Facility. See Jarpa v. Mumford, 211 F. Supp. 3d 706, 711 (D. Md. 20 16) ("[B]ecause the harm is loss ofliberty, it is quintessentially the kind of harm that cannot be undone or totally remedied through monetary relief."); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) (finding irreparable harm because the "injuries at stake ... are 'beyond remediation,"' and noting that "[u]nlike economic harm, the harm from detention pursuant to an unlawful policy cannot be remediated after the fact").
2. Respondents' Declarations Do Not Create Meaningful Issues of Fact
Respondents have submitted several declarations from ICE officials that contradict various allegations in Petitioners' declarations. Deportation Officers Ensminger, McCartan, and Muehlig deny discouraging any detainee from seeking parole or stating that parole was no longer available. (Dkt. 50-3 at 2-7; Dkt 50-4 at 2; Dkt. 50-5 at 2). Officer
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Ensminger also contradicts the declaration of Attorney Desiree Lurf. Attorney Lurf alleges, in her declaration, that Officer Ensminger informed her that the parole adjudication practices at the Buffalo Federal Detention Facility had changed under the new administration. (Dkt. 38-19). Officer Ensminger states that he never informed Attorney Lurfthat parole practices had changed. (Dkt. 50-3 at 7). Similarly, Officer Ball states that he does "not believe that [he] told [immigration attorney Siana McClean] the parole policy had changed." (Dkt. 50-1 at 1-2; see Dkt. 38-18 at 3 (stating that Officer Ball "informed [her] that parole adjudication practices have changed under the new administration")).
The officers also state that they provided Petitioners' declarants with information about how to apply for parole (Dkt. 50-3 at 2; Dkt. 50-4 at 2; Dkt. 50-5 at 1) and forwarded parole requests on behalf of those individuals (Dkt 50-3 at 2; Dkt. 50-5 at 2). They contend that the Buffalo Federal Detention Facility has simply begun to scrutinize parole documentation more closely. (Dkt. 50-1 at 1 (indicating that he informed Attorney McLean "that we are now more closely scrutinizing the validity of ... documents that are provided for consideration in the parole decision ... based on a general consensus ... about the parole process, our interpretation of Thomas Brophy's remarks regarding identity documents, as well as the changes in the general enforcement objectives under the Trump Administration"); Dkt. 50-3 at 7 (indicating that he informed Attorney Desiree Lurf "that the requirements for parole are being scrutinized more thoroughly than in the past, as directed by the new acting Field Office Director"); Dkt. 50-5 at 2-3 (indicating that he informed a detainee that "it was possible with the new administration that the requirements for release on parole have tightened up")).
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Although Respondents' declarations specifically contradict some of the factual allegations in the declarations submitted by Petitioners, Respondents never represent that they are adhering to the requirements of the ICE Directive. Indeed, Respondents' position is that the ICE Directive is not legally binding. Nor do Respondents' declarants contradict Petitioners' allegations regarding the diminishing mental and physical health of the putative class members, or the negative impact that detention has on the ability to prepare for asylum proceedings.
Acting Field Office Director Thomas Brophy asserts that parole practices did not change once President Trump came into office. (Dkt. 50-2 at 1). However, he does not state that the Buffalo Federal Detention Facility was following the ICE Directive before January 2017, or that it is following the Directive today. Director Brop~y also affirms that he uses "standard language in letters to attorneys when denying parole" and a "Notification Declining to Grant Parole" to notify detainees. (!d. at 1-2). Even so, Petitioners have provided photocopies of parole denial letters given to Petitioners and the members of the putative class, and many of those letters indisputably fail to conform to the requirements of paragraph 6.5 of the ICE Directive. That paragraph provides that officers "shall provide every alien subject to this directive with written notification of the parole decision, including a brief explanation of the reasons for any decision to deny parole." Many of Petitioners' declarants received letters notifying them that their parole request had been denied without explanation. (See, e.g., Dkt. 38-6 at 6; Dkt. 38-7 at 7; Dkt. 38-9 at 7; Dkt. 38-10 at 6; Dkt. 38-11 at 7; Dkt. 38-13 at 7; Dkt. 38-15 at 7; Dkt. 38-20 at 11).
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Director Brophy's declaration also states that the Buffalo Federal Detention Facility has eliminated its practice of accepting photocopies of government-issued identification, contending that the heightened scrutiny falls within the "spirit" of the ICE Directive. (!d. at 2-3). However, the ICE Directive plainly allows for alternatives to government-issued identification for individuals who "cannot reasonably provide valid government-issued evidence of identity" and contains no language requiring original documents. ICE Directive No. 11002.1, ~ 8.3(1).
Accordingly, Respondents' declarations do not create issues of fact concerning the failure to adhere to the requirements of the ICE Directive, the impairment that the prolonged detention of the putative class members has had on their ability to prepare for their asylum proceedings, and the impact of detention on the putative class members' physical and mental health. Moreover, there is no dispute that individualized bond hearings are not afforded to asylum-seekers after six months of detention, as Respondents contend they are not required for§ 1225(b) detentions.
3. Petitioners Have Established Irreparable Harm The uncontested factual allegations demonstrate that, absent a preliminary injunction, Petitioners and the putative class members "will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm." Grand River Enter. Six Nations, Ltd., 481 F.3d at 66. Those submitting declarations in support ofthe preliminary injunction motion face harms that are representative of prospective class members generally. Those harms include the negative physical and mental health effects of prolonged detention and the fact
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that their continued detention has prevented putative class members from adequately preparing for their asylum hearings before an immigration judge.
Of course, mandatory detention provisions in the immigration context are constitutionally permissible, see Demore v. Kim, 538 U.S. 510, 531 (2003), but that fact does nothing to diminish the crux of Petitioners' claims of an unlawfully "prolonged" and allegedly indefinite detention. See Lora, 804 F.3d at 616 (holding that§ 1226(c) contains an implicit time restriction to avoid "serious constitutional concerns" attendant to an alien's indefinite detention); Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006) (holding that§ 1225(b)(l)(B)(ii) and (b)(2)(A) do not permit indefinite detention); see also Demore, 538 U.S. at 532-33 (Kennedy, J., concurring) ("Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.").
Indeed, Petitioners do not argue that they cannot be detained at all; rather, Petitioners take issue with the manner in which they have been detained-indefinitely and without fair process. Petitioners' request, ultimately, asks this Court to require Respondents to adhere to their policies and procedures. That remedy would cure the alleged violations. See, e.g., Hernandez, 2017 WL 4341748, at* 13; Rodriguez II, 715 F.3d at 1145; Jarpa, 211 F. Supp. 3d at 711; R.I.L-R, 80 F. Supp. 3d at 191. Accordingly, the scope of the requested preliminary injunctive relief is appropriate.
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C. Likelihood of Success on Bond Hearing Claims Respondents also argue that Petitioners are not substantially likely to succeed on the merits of their bond hearing claims because neither Lora nor Rodriguez II applies in this case. (Dkt. 50 at 26-31 ). As already discussed, the Court disagrees with Respondents' position for the reasons stated above in the section addressing Respondents' Rule 12(b)(6) motion to dismiss. Here, Petitioners have provided numerous declarations averring that members of the putative class have been detained at the Buffalo Federal Detention Facility for six months or more without a bond hearing. Respondents have not disputed this fact. At oral argument, Petitioners and Respondents described the bond claims as presenting a legal issue, and the Court agrees with that characterization. Therefore, since Petitioners have provided the declarations of many detainees who are entitled to the sixmonth limitation in§ 1225(b), and Respondents have failed to set forth any facts weighing against the application ofthat implicit time restriction, the Court determines that Petitioners are likely to prevail on their bond hearing claims. Again, the Court acknowledges that the Supreme Court is poised to address this issue in Jennings v. Rodriguez, No. 15-1204 (U.S. argued Nov. 30, 2016), and the outcome of that case could change the legal landscape in this area. However, at this time, based on the law in this Circuit, the Court concludes that Petitioners have established a likelihood of success on their claims to a bond hearing. Respondents also briefly argue that 8 U.S.C. § 1252(f)(l) precludes class-wide injunctive relief for Petitioners' bond claims. Section 1252(t)(l) provides: Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the
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provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. !d. As Respondents note, the Supreme Court has stated that "[b]y its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231." Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999). However, contrary to Respondents' assertions, § 1252(f)(l) is inapplicable to Petitioners' request for relief. Where, as here, the moving party "does not seek to enjoin the operation of§§ 1221-1231," and instead, seeks to enjoin violations of the statutory and regulatory framework, the class-wide prohibition on injunctive relief is inapplicable.
Grimaldo v. Reno, 187 F.R.D. 643,648 (D. Colo. 1999); see Rodriguez L 591 F.3d at 1120
("Section 1252(f) prohibits only injunction of 'the operation or the detention statutes, not injunction of a violation ofthe statutes."); R.I.L-R, 80 F. Supp. 3d at 184 (determining that § 1252(f)(l) "poses no bar to relief' where the class-wide injunction would "merely enjoin conduct that allegedly violates [§ 1226(a)]"); Tefel v. Reno, 972 F. Supp. 608, 618 (S.D. Fla. 1997) ("Plaintiffs do not seek to enjoin the statute. They seek to enjoin constitutional violations and policies and practices of the Defendants that result in pretermission and deportation."); see also Gordon v. Johnson, 300 F.R.D. 31, 40 (D. Mass. 2014) ("[T]he court need not prohibit the operation of any part of the law to correct the government's incorrect application of it.").
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In order to avoid "serious constitutional concerns," the Court has construed § 1225(b) to contain a six-month time restriction for detentions permitted under its provisions without a bond hearing. Petitioners seek to enjoin Respondents' failure to adhere to this implied statutory term, and request that the Court remedy this violation by requiring Respondents to afford individualized bond hearings to those asylum-seekers who have been detained for six months or more. Because Petitioners do not seek to enjoin the operation ofthe statute, but rather Respondents' violation ofthis implicit term,§ 1252(f)(l) does not bar the requested class-wide injunctive relief.
D. Likelihood of Success on Parole Claims For the reasons set forth above in the discussion of Respondents' motion to dismiss, the Court concludes that Respondents are required to comply with the ICE Directive when considering applications for parole. Moreover, as discussed above in connection with the issue of irreparable harm, Petitioners have alleged sufficient uncontested facts to establish ongoing violations of the ICE Directive. While the extent of the violations and the underlying reasons for the violations may be disputed, Respondents have not offered facts contradicting the allegations that the ICE Directive has not been followed-indeed, Respondents' position (at least before this Court) is that the ICE Directive is not binding. As discussed in the context of the motion to dismiss, the ICE Directive plainly sets forth individual rights in the context of parole determinations, and the Accardi doctrine requires that those internal directives be followed. Respondents told the Supreme Court that the ICE Directive was being followed, and their attempts before this Court to disclaim any obligation to follow that Directive are, to say the least, unpersuasive.
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E. Public Interest and the Balance of Equities Petitioners ask the Court to follow the Ninth Circuit and hold that the public interest "benefits from a preliminary injunction that ensures that federal statutes are construed and implemented in a manner that avoids serious constitutional questions." Rodriguez II, 715 F.3d at 1146. Petitioners also contend that the "balance ofthe equities" tips in their favor. Schneiderman, 787 F.3d at 649. In Rodriguez II, the court held that the government "cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute to avoid constitutional concerns." 715 F.3d at 1145. Here, as in Rodriguez II, the only potential harm suggested by Respondents is that the order would enjoin "presumptively lawful government activity" and would be "contrary to the plain meaning of the statutes." !d. Respondents argue that a preliminary injunction on Petitioners' parole claims is not in the public interest because the public's interest in enforcement ofU.S. immigration laws is paramount. See United States v. Brignoni-Ponce, 422 U.S. 873, 878-79 (1975). According to Respondents, to disregard a statutory mandate that makes parole decisions discretionary cannot be in the public interest. Again, Respondents' position misconstrues the relief sought by Petitioners. Granting preliminary injunctive reliefwill simply require Respondents to comply with their legal obligations and afford Petitioners procedural protections in connection with Respondents' exercise of discretion. Under Lora, Respondents must provide bond hearings to individuals detained under§ 1225(b) for more than six months. Furthermore, contrary to Respondents' assertions, ordering compliance with the terms of the ICE Directive is consistent with Second Circuit case law and will not obviate the discretionary
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aspect of parole decisions. Respondents have affirmatively represented to the Supreme Court that they are following the ICE Directive and that it remains in full force and effect. Under the circumstances, this Court is hard-pressed to see how requiring compliance with an internal directive that Respondents so readily embraced before the Supreme Court could be against the public interest. Granting the preliminary injunction will not compel Respondents to release any detainees on parole or bond. Rather, it simply means that certain procedural safeguards must be followed when considering the detention of these individuals. As a result, the Court concludes that the balance of equities tips in favor of Petitioners and the public interest is served by an injunction.
F. Preliminary Injunction Respondents are hereby ordered to immediately adjudicate, or, in cases where there is a prior denial of parole, readjudicate the parole applications of all members of the putative class, 11 in conformance with their legal obligations, including their obligations under the ICE Directive, including by providing each arriving asylum-seeker an advisal setting forth the requirements to obtain parole; a translation of that information into a language understood by the asylum-seeker; a parole interview with an immigration officer; an individualized explanation of any denials; and notification of the opportunity to seek reconsideration, consistent with the requirements of the ICE Directive.
11 The "putative class" is as follows: All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility in Batavia, New York, and who have not been granted parole.
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In addition, Respondents are also ordered to provide members of the putative class who have been detained for six months or more with individualized bond hearings, in conformance with the Second Circuit's decision in Lora. At oral argument, Respondents contended that they should not be burdened with the heightened "clear and convincing" evidentiary standard with respect to denial of bond; that is, Respondents assert that they should not have to prove by clear and convincing evidence that an individual is a flight risk or a danger to the community to justify the denial of bond. Respondents argue that the Supreme Court has never imposed such an exacting burden in this context. However, as Petitioners noted, that standard has been imposed by the Ninth Circuit since at least 2013, see Rodriguez II, 715 F.3d at 1131, and the Second Circuit has since followed Rodriguez II in applying that standard to bond hearing claims arising out of§ 1226(c), Lora, 804 F.3d at 616. In fact, the district courts in this Circuit that have applied Lora to individuals detained under§ 1225(b) have also extended the clear and convincing evidentiary standard in this context. See, e.g., Morris, 2017 WL 1968314, at *2; Saleem, 2016 WL 4435246, at *5; Arias, 2016 WL 3906738, at* 10.
Rodriguez II adopted the clear and convincing evidence standard based on its prior decision in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), which held that "[g]iven the substantial liberty interest at stake[,] . . . the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond." !d. at 1203. The Court recognizes that the asylum-seekers at issue here enjoy few, if any, constitutional rights under the present state of the law. See Landon, 459 U.S. at 32 ("This Court has long held that an alien seeking initial admission to the United
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States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative."). Of course, it would also be incorrect to say that these individuals have no rights at all. See Correa, 901 F.2d at 1171 n.5 (noting that "[r]ights in such circumstances appear to be largely statutorily derived").
In any event, as discussed above, LPRs are subject to the mandatory detention provisions of§ 1225(b). When an LPR is involved, the rationale in Rodriguez II and Singh is particularly compelling given the significant due process liberty interest at stake. As Clark noted, the canon of constitutional avoidance applies to avoid an interpretation of a statute that would otherwise raise "serious constitutional doubts." 543 U.S. at 381. Regardless of whether a particular litigant is entitled to invoke due process in his own right, the litigant may invoke the canon of constitutional avoidance "to vindicate his own statutory rights." !d. at 382. Thus, under Singh, Respondents would be required to prove by clear and convincing evidence that continued detention is necessary when the bond applicant is an LPR; therefore, because non-LPRs also have an implicit right to a bond hearing under § 1225(b), the canon of constitutional avoidance requires Respondents to make the same showing when the particular detainee is a non-LPR.
It is worth mentioning that a clear and convincing evidence standard should not be as insurmountable as Respondents portend. Indeed, if Respondents execute their parole authority in accordance with the ICE Directive, there should be little cause for concern. Pursuant to the ICE Directive's provisions, "absent additional factors," arriving aliens who have demonstrated a credible fear of persecution "should' be released to parole. ICE Directive No. 11002.1, ,-r 6.2 (emphasis added). By its terms, the ICE Directive encourages
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release to parole supervision. To be sure, there will no doubt be occasions where continued detention is strongly desired, and, of course, this decision does nothing to erode the Attorney General's discretionary authority to grant or deny parole. See 8 U.S.C. § 1182(d)(5)(A). However, if Respondents follow the ICE Directive, individuals who are not likely to be a flight risk or a danger to the community will have been released on parole before six months have passed. Where an individual is detained for six months, Respondents should, under the ICE Directive, have a good reason for the continued detention and should therefore be able to readily meet the clear and convincing evidence standard of proof with respect to the denial ofbond. Conversely, ifRespondents are unable to meet their burden at the bond hearing, that failure should indicate that parole would have been appropriate at an earlier time.
CONCLUSION For the foregoing reasons, Respondents' motion to dismiss (Dkt. 27) is denied, and Petitioners' motion for a preliminary injunction (Dkt. 38) is granted. SO ORDERED.
Dated: November 17, 2017 Rochester, New York
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 U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE #: 1:17-cv-00721-EAW

Abdi v. Duke, et al. Assigned to: Hon. Elizabeth A. Wolford Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 07/28/2017 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Hanad Abdi

represented by Aadhithi Padmanabhan New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212 607-3343 Fax: 212 607-3318 Email: aadhithi@gmail.com TERMINATED: 05/22/2019

Antony Philip Falconer Gemmell New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212-607-3320 Fax: 212-607-3318 Email: agemmell@nyclu.org ATTORNEY TO BE NOTICED

Christopher T. Dunn NY Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 212-344-3005 Fax: 212-344-3329 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Deepa Alagesan International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 516-838-7044 Email: dalagesan@refugeerights.org ATTORNEY TO BE NOTICED
Heidi Lynne Levine Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212-839-7366 Fax: 212-839-5599 Email: hlevine@sidley.com ATTORNEY TO BE NOTICED
Kathryn S. Austin International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 Email: kaustin@refugeerights.org ATTORNEY TO BE NOTICED
Mariko Hirose International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 516-701-4620 Email: mhirose@refugeerights.org ATTORNEY TO BE NOTICED
Michael D. Mann Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212 839-5837 Fax: 212 839-5599 Email: mdmann@sidley.com ATTORNEY TO BE NOTICED

Petitioner Johan Barrios Ramos

Paige Austin New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212 607-3300 Fax: 212 607-3318 Email: paige.austin@maketheroadny.org TERMINATED: 02/13/2019
Robert Andrew Hodgson New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212 607-3317 Fax: 212 607-3318 Email: rhodgson@nyclu.org ATTORNEY TO BE NOTICED
Victoria Marie Roeck New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212-607-3368 Email: vroeck@me.com TERMINATED: 07/24/2020
represented by Aadhithi Padmanabhan (See above for address) TERMINATED: 05/22/2019
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
Deepa Alagesan (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
John Kelly Secretary of U.S. Department of Homeland Security TERMINATED: 08/10/2017

Heidi Lynne Levine (See above for address) ATTORNEY TO BE NOTICED
Kathryn S. Austin (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
Michael D. Mann (See above for address) ATTORNEY TO BE NOTICED
Paige Austin (See above for address) TERMINATED: 02/13/2019
Robert Andrew Hodgson (See above for address) ATTORNEY TO BE NOTICED
Victoria Marie Roeck (See above for address) TERMINATED: 07/24/2020
represented by Stacey Ilene Young U.S. Department of Justice P.O. Box 868 Washington, DC 20044 202-305-7171 Fax: 202-305-7000 Email: stacey.young@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tashiba Monique Peoples U.S. Department of Justice Office of Imigration Litigation-

Defendant
Thomas Brophy Acting Director of Buffalo Field Office of Immigration and Customs Enforcement

District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-598-8717 Fax: 202-305-7000 Email: Monique.Peoples@usdoj.gov ATTORNEY TO BE NOTICED
represented by Kevin Charles Hirst U. S. Department of Justice - Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-353-8536 Email: kevin.c.hirst@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub U. S. Department of Justice - Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-305-7551 Fax: 202-305-7000 Email: jacob.weintraub@usdoj.gov ATTORNEY TO BE NOTICED
Nicole N. Murley U.S. Department of Justice 450 5th Street, NW Washington, DC 20530 202-616-0473 Fax: 202-305-7000 Email: nicole.murley@usdoj.gov ATTORNEY TO BE NOTICED
Tashiba Monique Peoples

Defendant Jeffrey Searls Acting Administrator of the Buffalo Federal Detention Facility
Defendant Jefferson Sessions Attorney General of the United States

(See above for address) ATTORNEY TO BE NOTICED
represented by Kevin Charles Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Tashiba Monique Peoples (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin Charles Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED

Defendant
Elaine C Duke Acting, Secretary of the U.S. Department of Homeland Security

Tashiba Monique Peoples (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin Charles Hirst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Nicole N. Murley (See above for address) ATTORNEY TO BE NOTICED
Tashiba Monique Peoples (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/28/2017
07/31/2017 07/31/2017

# Docket Text
1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number 0209-2846185.), filed by Hanad Abdi. (Attachments: # 1 Civil Cover Sheet, # 2 Memorandum in Support of Petition, # 3 Affidavit of Petitioner Hanad Abdi with Supporting Exhibits, # 4 Affidavit of Siana McLean with Supporting Exhibits, # 5 Affidavit of Aadhithi Padmanabhan with Supporting Exhibits, # 6 Affidavit of Desiree Lurf)(Padmanabhan, Aadhithi) (Entered: 07/28/2017)
Case Assigned to Hon. Elizabeth A. Wolford. Notification to Chambers of on-line civil case opening. (NRE) (Entered: 07/31/2017)
Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is

07/31/2017 08/01/2017
08/02/2017 08/03/2017 08/03/2017 08/04/2017 08/04/2017

available for download at http://www.uscourts.gov/servicesforms/forms. (NRE) (Entered: 07/31/2017)
2 MOTION to Expedite Hearing on Petition for Writ of Habeas Corpus by Hanad Abdi. (Attachments: # 1 Memorandum in Support of Motion to Expedite, # 2 Affidavit of Robert Hodgson in Support of Motion to Expedite with Supporting Exhibits, # 3 Text of Proposed Order)(Padmanabhan, Aadhithi) (Entered: 07/31/2017)
3 TEXT ORDER re 2 Motion to Expedite. On or before Wednesday, August 2, 2017, Petitioner shall serve the Petition, the Motion to Expedite, and this Text Order on Respondents, with a copy sent by electronic mail to Mary Pat Fleming, Assistant United States Attorney, Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202 (mary.pat.fleming@usdoj.gov). Respondents shall file papers outlining their position with respect to the Motion to Expedite, and any proposed alternative schedule in the event the Motion to Expedite is granted, on or before Thursday, August 3, 2017, at which time the matter will be deemed submitted. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/1/17. (JPL) (Entered: 08/01/2017)
4 AFFIDAVIT of Service for Petition, Motion to Expedite, Text Order in Compliance with Court Order (Docket No. 3) served on John Kelly, Thomas Brophy, Jeffrey Searls, Jefferson Sessions, United States Attorney's Office for Western District of New York, Mary Pat Fleming on 8/1/2017, filed by Hanad Abdi. (Padmanabhan, Aadhithi) (Entered: 08/02/2017)
5 STIPULATION re 3 Text Order, Set Deadlines,,,, by Thomas Brophy, John Kelly, Jeffrey Searls, Jefferson Sessions. (Young, Stacey) (Entered: 08/03/2017)
6 TEXT ORDER re 5 Stipulation. A telephone status conference is hereby set for August 4, 2017, at 11:00 AM. Counsel will be sent callin instructions by email. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/3/17. (JPL) (Entered: 08/03/2017)
7 NOTICE of Appearance by Stacey Ilene Young on behalf of All Defendants (Young, Stacey) (Entered: 08/04/2017)
8 TEXT ORDER. Pursuant to 5 Stipulation, Respondents shall respond to the Petition by August 14, 2017. Petitioner shall file any reply by August 18, 2017. A Motion Hearing (oral argument) is hereby set for September 7, 2017, at 10:00 AM in U.S. Courthouse, 100 State Street, Rochester NY 14614 before Hon. Elizabeth A. Wolford. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/4/17. (JPL) (Entered: 08/04/2017)

08/04/2017 08/07/2017 08/10/2017
08/10/2017
08/11/2017 08/21/2017 08/21/2017 08/21/2017

9 Minute Entry for proceedings held before Hon. Elizabeth A. Wolford: Appearances: Aadhithi Padmanabhan, Esq,pl. Mariko Hirose, Esq./pl./Robert Hogson, Esq./pl. and Stacey Young, Esq./def. Telephone Status Conference held on 8/4/2017. Text order issued. (Court Reporter Karen Bush.) (LMD) (Entered: 08/04/2017)
10 TEXT ORDER. The Motion Hearing presently scheduled for September 7, 2017, at 10:00 AM is hereby adjourned to September 15, 2017, at 3:00 PM in U.S. Courthouse, 100 State Street, Rochester NY 14614 before Hon. Elizabeth A. Wolford. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/7/17. (JPL) (Entered: 08/07/2017)
11 TEXT ORDER. The Clerk of Court is directed to amend the docket to substitute Elaine C. Duke, Acting Secretary of the U.S. Department of Homeland Security, for Defendant John Kelly, Secretary of U.S. Department of Homeland Security, pursuant to Fed. R. Civ. P. 25(d). SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/10/17. (JPL)
-CLERK TO FOLLOW UP- (Entered: 08/10/2017)
12 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE held on 8/4/17, before Judge Wolford. Court Reporter/Transcriber Karen J. Bush, Telephone number 585-613-4312. 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 8/31/2017. Redacted Transcript Deadline set for 9/11/2017. Release of Transcript Restriction set for 11/8/2017. (SG) (Entered: 08/10/2017)
13 STIPULATION re 8 Text Order, Set Hearings,, to Stay Briefing Schedule by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Young, Stacey) (Entered: 08/11/2017)
14 NOTICE of Appearance by Tashiba Monique Peoples on behalf of All Defendants (Peoples, Tashiba) (Entered: 08/21/2017)
15 STATUS REPORT ON BEHALF OF THE PARTIES by Hanad Abdi. (Hodgson, Robert) (Entered: 08/21/2017)
16 TEXT ORDER re 15 Status Report. Pursuant to the joint request in the status report, the briefing deadlines previously set by the Court remain stayed. The parties shall provide the Court with a further status update on or before 8/28/17. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/21/17. (JPL) (Entered: 08/21/2017)

08/21/2017
08/24/2017 08/25/2017
08/28/2017
08/28/2017 08/29/2017 09/05/2017 09/06/2017 09/08/2017

17 AMENDED COMPLAINT First Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief against All Defendants, filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Affidavit of Johan Barrios Ramos, # 2 Affidavit of Desiree Lurf with supporting exhibits (1 of 2), # 3 Exhibit supporting exhibits of Desiree Lurf Declaration (2 of 2), # 4 Affidavit of Hanad Abdi with supporting exhibits, # 5 Affidavit of Siana McLean with supporting exhibits, # 6 Affidavit of Robert Hodgson, # 7 Affidavit of Aadhithi Padmanabhan with supporting exhibits)(Padmanabhan, Aadhithi) (Entered: 08/21/2017)
18 NOTICE of Appearance by Paige Austin on behalf of Hanad Abdi, Johan Barrios Ramos (Austin, Paige) (Entered: 08/24/2017)
19 MOTION to Certify Class by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Memorandum in Support of Motion for Class Certification, # 2 Affidavit of Christopher Dunn with supporting exhibits, # 3 Affidavit of Paige Austin with supporting exhibits, # 4 Affidavit of Robert Hodgson, # 5 Affidavit of Hanad Abdi (Supplemental), # 6 Affidavit of Siana McLean (Supplemental), # 7 Affidavit of Desiree Lurf (Supplemental), # 8 Affidavit of Anne Doebler, # 9 Affidavit of Matthew Borowski)(Padmanabhan, Aadhithi) (Entered: 08/25/2017)
20 TEXT ORDER re 19 Motion to Certify Class. Responses due 9/15/17. Replies due 9/22/17. Upon receipt of all papers, the Court will determine whether oral argument is necessary, and, if so, will inform the parties of the date and time of such oral argument. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/28/17. (JPL) (Entered: 08/28/2017)
21 STATUS REPORT ON BEHALF OF THE PARTIES by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 08/28/2017)
22 TEXT ORDER re 21 Status Report. The parties shall provide the Court with a further status update on or before 9/5/17. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/29/17. (JPL) (Entered: 08/29/2017)
23 STATUS REPORT ON BEHALF OF THE PARTIES by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 09/05/2017)
24 ORDER granting parties request to provide the court with a further status update due September 8, 2017. Signed by Hon. Elizabeth A. Wolford on 09/06/2017. (LMD) (Entered: 09/06/2017)
25 STATUS REPORT ON BEHALF OF THE PARTIES by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 09/08/2017)

09/11/2017
09/12/2017 09/13/2017 09/13/2017 09/13/2017 09/14/2017

26 TEXT ORDER. It is not clear from the parties' status update filed at Docket No. 25, whether the relief requested in the motion filed at Docket No. 2 has been mooted. In view of the staying of the briefing schedule previously set forth by the Court with respect to the motion filed at Docket No. 2, the Motion Hearing set for September 15, 2017, is hereby adjourned without date. The parties shall advise the Court on or before September 15, 2017, whether the petitioner continues to pursue the relief requested in the motion filed at Docket No. 2, and, if so, a mutually agreeable proposed schedule for the briefing of the same shall be proposed. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/11/2017. (EMS) (Entered: 09/11/2017)
27 MOTION to Dismiss by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. Responses due by 9/26/2017. (Attachments: # 1 Memorandum in Support, # 2 Declaration)(Young, Stacey) (Entered: 09/12/2017)
28 TEXT ORDER regarding 27 Motion to Dismiss. Responses are due on or before 10/4/2017. Replies are due on or before 10/11/2017. Upon receipt of all papers, the Court will determine if oral argument is necessary, and, if so, inform the parties of the date and time. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/13/17. (ZML) (Entered: 09/13/2017)
Set/Reset Deadlines as to 27 MOTION to Dismiss . Responses due by 10/4/2017. Replies due by 10/11/2017. (ZML) (Entered: 09/13/2017)
29 LETTER Providing Status Update by Hanad Abdi, Johan Barrios Ramos.(Hodgson, Robert) Modified on 9/15/2017 to correct title pursuant to 30 Text Order (NRE). (Entered: 09/13/2017)
30 TEXT ORDER. Pursuant to the letter from Petitioner's counsel dated September 13, 2017 29 , the Motion to Expedite Hearing on Petition for Writ of Habeas Corpus 2 should be designated as withdrawn. Petitioner's counsel has also designated that letter as a motion seeking expedited discovery. The letter does not comply with Local Rule of Civil Procedure 7 and should not be designated as a motion. The Clerk of Court is directed to redesignate the letter as simply providing a status update. If any party seeks affirmative relief from the Court, compliance with this Court's Local Rules and the Federal Rules of Civil Procedure is required, including filing a notice of motion setting forth the relief requested, a memorandum of law, and any affidavit in support of the motion. In addition, if a party seeks to have a motion determined on an expedited basis, a separate motion for an expedited hearing is required. At this time, the Court does not intend to conduct a telephone conference to discuss scheduling because scheduling orders have been

09/15/2017 09/15/2017 09/15/2017 09/15/2017 09/18/2017 09/18/2017

issued for any pending motions. In addition, the parties are reminded that, while the Court encourages cooperation between the parties and efforts to come to an agreement on a mutually acceptable schedule with respect to any pending motion in this case, it is the Court that sets the schedule - not the parties - and therefore, scheduling deadlines issued by the Court cannot be changed by agreement between the parties without the Court's approval. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/14/17. (ZML)
-CLERK TO FOLLOW UP- (Entered: 09/14/2017)
E-Filing Notification: regarding 29 MOTION for Discovery. The Clerk's Office changed the title pursuant to 30 Text Order. No further action required. (NRE) (Entered: 09/15/2017)
31 MOTION for Discovery by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Affidavit of Aadhithi Padmanabhan, # 2 Memorandum in Support)(Padmanabhan, Aadhithi) (Entered: 09/15/2017)
32 MOTION to Expedite Consideration of Motion for Expedited Discovery by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Motion for Expedited Discovery, # 2 Declaration of Aadhithi Padmanabhan, # 3 Memorandum in Support, # 4 Text of Proposed Order)(Padmanabhan, Aadhithi) (Entered: 09/15/2017)
33 MOTION to Stay re 19 MOTION to Certify Class by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions.(Young, Stacey) (Entered: 09/15/2017)
34 TEXT ORDER regarding 32 Motion to Expedite Consideration of Motion to Expedite Discovery. Opposition papers are due on or before 9/19/17 at 12:00 PM. The Court will resolve the motion on the papers and without oral argument. SO ORDERED. Signed Hon. Elizabeth A. Wolford on 9/18/17. (ZML) (Entered: 09/18/2017)
35 TEXT ORDER regarding 33 Motion to Stay Motion to Certify Class. Response is due on or before 9/29/17. The Court will resolve the motion on the papers and without oral argument. Respondents have failed to comply with Local Rule 7(a)(1) by failing to include a notice of motion. Compliance with the Court's Local Rules will be required going forward. The schedule set forth at Docket 20 concerning the 19 Motion to Certify the Class will be held in abeyance until further order of the Court. SO ORDERED. Signed Hon. Elizabeth A. Wolford on 9/18/17. (ZML) (Entered: 09/18/2017)

09/19/2017 09/19/2017
09/25/2017

36 RESPONSE in Opposition re 32 MOTION to Expedite Consideration of Motion for Expedited Discovery filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Affidavit of T. Monique Peoples)(Peoples, Tashiba) (Entered: 09/19/2017)
37 TEXT ORDER. Currently pending before the Court is a 32 Motion to Expedite Consideration of Motion for Expedited Discovery, wherein Petitioners seek to expedite the briefing and this Courts consideration of their 31 Motion for Discovery. Petitioners represent that the documents they seek in discovery will be used to support an anticipated Motion for Preliminary Injunction that will be filed no later than September 25, 2017. Also pending before the Court is Respondents 27 Motion to Dismiss wherein, among other arguments, Respondents contend that this Court lacks subject matter jurisdiction. As a result, a threshold issue that this Court will have to determine before considering the granting of any relief to Petitioners - whether it be in the form of discovery or preliminary injunctive relief - is whether the Court has jurisdiction to consider the claims.
Having considered the respective arguments by the parties, and the procedural posture of this case, the Court grants the 32 Motion to Expedite, in part, to the extent that the Court will set a briefing schedule for Petitioners 31 Motion for Discovery and consider the issues set forth therein on a more expedited basis than it might otherwise, but the motion is otherwise denied, including to the extent that Petitioners seek a determination on the 31 Motion for Discovery prior to the Court resolving the 27 Motion to Dismiss.
Accordingly, papers in response to the 31 Motion for Discovery are hereby due on or before October 2, 2017. Upon receipt of all papers, the court will determine if oral argument is necessary, and if so, inform the parties of the date and time. SO ORDERED. Signed Hon. Elizabeth A. Wolford on 9/19/17. (ZML) (Entered: 09/19/2017)
38 First MOTION for Preliminary Injunction by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Memorandum in Support, # 2 Exhibit First Amended Petition, # 3 Declaration of Paige Austin with Exhibits A-L, # 4 Declaration of Johan Barrios Ramos, # 5 Declaration of Hanad Abdi with Exhibits A-E, # 6 Declaration of Abdirashid Ahmed Musa with Exhibit A, # 7 Declaration of Muktar Muse Mohamed with Exhibit A, # 8 Declaration of Koffi Sewoul with Exhibit A, # 9 Declaration of Joseph Baptiste with Exhibit A, # 10 Declaration of Dieusauveur Flezinord with Exhibit A, # 11 Declaration of Saikou Touray with Exhibit A, # 12 Declaration of Salad Suraw Abdi, # 13 Declaration of Muhamed Hirsi with Exhibit A,

09/25/2017 09/26/2017

# 14 Declaration of Ahmed Mohamed Ahmed, # 15 Declaration of Abdirahman Nor with Exhibit A, # 16 Declaration of Dayron Hernandez with Exhibit A, # 17 Declaration of Michelle Shames with Exhibit A, # 18 Declaration of Siana McLean with Exhibits A-B, # 19 Declaration of Desiree Lurf with Exhibits A-F (part 1 of 2), # 20 Declaration of Desiree Lurf with Exhibits A-F (part 2 of 2), # 21 Declaration of Matthew Borowski, # 22 Declaration of Matthew Borowski Supp. with Exhibits A-C, # 23 Declaration of Anne Doebler, # 24 Exhibit Proposed Witness and Exhibit List, # 25 Text of Proposed Order)(Austin, Paige) (Entered: 09/25/2017)
39 First MOTION to Expedite by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Text of Proposed Order granting motion to expedite consideration of Preliminary Injunction, # 2 Exhibit Notice of Motion for Preliminary Injunction, # 3 Exhibit Memorandum of Law in Support of Preliminary Injunction, # 4 Exhibit First Amended Petition, # 5 Exhibit Austin Declaration, # 6 Exhibit Barrios Ramos Declaration, # 7 Exhibit H. Abdi Declaration, # 8 Exhibit Musa Declaration, # 9 Exhibit Mohamed Declaration, # 10 Exhibit Sewoul Declaration, # 11 Exhibit Baptiste Declaration, # 12 Exhibit Flezinord Declaration, # 13 Exhibit Touray Declaration, # 14 Exhibit S. Abdi Declaration, # 15 Exhibit Hirsi Declaration, # 16 Exhibit Ahmed Declaration, # 17 Exhibit Nor Declaration, # 18 Exhibit Hernandez Declaration, # 19 Exhibit Shames Declaration, # 20 Exhibit McLean Declaration, # 21 Exhibit Lurf Declaration (part 1 of 2), # 22 Exhibit Lurf Declaration (part 2 of 2), # 23 Exhibit Borowski Declaration, # 24 Exhibit Supplemental Borowski Declaration, # 25 Exhibit Doebler Declaration, # 26 Exhibit Proposed Witness and Exhibit List, # 27 Exhibit Proposed Preliminary Injunction Order)(Austin, Paige) (Entered: 09/26/2017)
40 TEXT ORDER regarding 38 Motion for Preliminary Injunction. As the Court previously indicated by Text Order (Dkt. 37), it will need to resolve the pending 27 Motion to Dismiss before considering the grant of any relief to Petitioners. The Court will therefore set a briefing schedule for the 38 Motion for Preliminary Injunction that will take into account the previously set briefing schedule for the 27 Motion to Dismiss, as well as the Court's ability in view of its schedule to resolve the pending issues in this case in as expeditious manner as possible. Therefore, responses to the 38 Motion for Preliminary Injunction are due on or before 10/10/17. Replies are due on or before 10/17/17. Oral argument on the 38 Motion for Preliminary Injunction and the 27 Motion to Dismiss will be held on 10/27/17 at 2:00 PM in U.S. Courthouse, 100 State Street, Rochester NY 14614 before Hon. Elizabeth A. Wolford. In view of the foregoing, the 39 Motion to Expedite in the manner specifically requested by Petitioners is denied.

09/26/2017 09/27/2017 09/27/2017 09/27/2017 09/29/2017
09/29/2017

SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/26/17. (ZML). (Entered: 09/26/2017)
CALENDAR EVENT. Set/Reset Deadlines as to 38 First MOTION for Preliminary Injunction , 27 MOTION to Dismiss . Motion Hearing set for 10/27/2017 02:00 PM in US Courthouse, 100 State Street, Rochester NY 14614 before Hon. Elizabeth A. Wolford. (ZML) (Entered: 09/26/2017)
41 MOTION to Stay re 38 First MOTION for Preliminary Injunction or, Alternatively, to Extend Briefing Deadlines and Hearing Date by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Memorandum in Support)(Peoples, Tashiba) (Entered: 09/27/2017)
42 RESPONSE in Opposition re 33 MOTION to Stay re 19 MOTION to Certify Class filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Affidavit of Robert Hodgson in support of the petitioners' response to the Government's motion to hold class certification briefing in abeyance)(Hodgson, Robert) (Entered: 09/27/2017)
43 TEXT ORDER regarding 41 Motion to Stay 38 Motion for Preliminary Injunction. Response is due on or before 9/29/17. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/27/17. (ZML) (Entered: 09/27/2017)
44 MEMORANDUM in Opposition re 41 MOTION to Stay re 38 First MOTION for Preliminary Injunction or, Alternatively, to Extend Briefing Deadlines and Hearing Date filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Affidavit in Support of Petitioners' Opposition to Respondents' Motion to Hold Preliminary Injunction Briefing and Hearing in Abeyance)(Austin, Paige) (Entered: 09/29/2017)
45 TEXT ORDER regarding 41 Motion to Stay Motion for Preliminary Injunction. The 41 Motion to Stay the Motion for Preliminary Injunction is denied. The 41 alternative Motion to Extend Briefing Deadlines and Hearing Date is granted in part, and denied in part. Response to the 38 Motion for Preliminary Injunction is due on or before 10/20/17. Reply is due on or before 10/26/17. Oral argument will remain scheduled for 10/27/17 at 2:00 PM in U.S. Courthouse, 100 State Street, Rochester, NY 14614 before Hon. Elizabeth A. Wolford. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/29/17. (ZML) (Entered: 09/29/2017)

09/29/2017 10/02/2017 10/03/2017 10/04/2017 10/11/2017 10/20/2017
10/26/2017 10/27/2017
10/30/2017

CALENDAR EVENT. Set/Reset Deadlines as to 38 First MOTION for Preliminary Injunction . Responses due by 10/20/2017. Replies due by 10/26/2017. (ZML) (Entered: 09/29/2017)
46 RESPONSE in Opposition re 31 MOTION for Discovery filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration Peoples Declaration)(Peoples, Tashiba) (Entered: 10/02/2017)
47 NOTICE of Appearance by J. Max Weintraub on behalf of All Defendants (Weintraub, J.) (Entered: 10/03/2017)
48 MEMORANDUM in Opposition re 27 MOTION to Dismiss filed by Hanad Abdi, Johan Barrios Ramos. (Hirose, Mariko) (Entered: 10/04/2017)
49 REPLY to Response to Motion re 27 MOTION to Dismiss filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Peoples, Tashiba) (Entered: 10/11/2017)
50 RESPONSE in Opposition re 38 First MOTION for Preliminary Injunction filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration Ball Declaration, # 2 Declaration Brophy Declaration, # 3 Declaration Ensminger Declaration, # 4 Declaration McCartan Declaration, # 5 Declaration Muehlig Declaration)(Peoples, Tashiba) (Entered: 10/20/2017)
51 REPLY to Response to Motion re 38 First MOTION for Preliminary Injunction filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Affidavit Austin Declaration and Exhibits)(Dunn, Christopher) (Entered: 10/26/2017)
53 Minute Entry for proceedings held before Hon. Elizabeth A. Wolford: Appearances: Mariko Hirose, Esq./pl.; Christopher Dunn, Esq./pl;. Aadhithi Padmanabhan, Esq./pl.; Robert Hogson, Esq./pl.; Austin Paige, Esq./pl.; Deepa Alagesan, Esq./pl., Scout Katovich, Law Graduate/pl.; Monique Peoples, USDOJ for def. and Kathryn Smith, AUSA. Motion Hearing held on 10/27/2017 re 38 First MOTION for Preliminary Injunction filed by Johan Barrios Ramos, Hanad Abdi, 27 MOTION to Dismiss filed by Elaine C Duke, John Kelly, Jefferson Sessions, Thomas Brophy, Jeffrey Searls. Court reserves decision. (Court Reporter KB.) (LMD) (Entered: 11/01/2017)
52 TEXT ORDER denying 33 Motion to Stay Motion to Certify Class. The briefing on on the 19 Motion to Certify Class is no longer held in abeyance. Response is due on or before 11/13/17. Reply is due on or

11/13/2017 11/13/2017 11/17/2017 11/17/2017 11/20/2017
11/27/2017 12/07/2017
12/07/2017 12/07/2017

before 11/17/17. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 10/30/17. (ZML) (Entered: 10/30/2017)
54 DECISION AND ORDER denying Petitioners' 31 Motion for Discovery without prejudice. Signed by Hon. Elizabeth A. Wolford on 11/13/2017. (NRE) (Entered: 11/13/2017)
55 RESPONSE in Opposition re 19 MOTION to Certify Class filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Exhibit A)(Weintraub, J.) (Entered: 11/13/2017)
56 DECISION AND ORDER denying 27 Motion to Dismiss; granting 38 Motion for Preliminary Injunction. Signed by Hon. Elizabeth A. Wolford on 11/17/2017. (LMD) (Entered: 11/17/2017)
57 REPLY to Response to Motion re 19 MOTION to Certify Class filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 11/17/2017)
58 TEXT ORDER regarding 19 Motion to Certify Class. Oral argument will be held on the 19 Motion to Certify Class on 12/7/17 at 10 AM at U.S. Courthouse, 100 State Street, Rochester, NY 14614 before Hon. Elizabeth A. Wolford. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 11/20/17. (ZML) (Entered: 11/20/2017)
59 NOTICE of Appearance by Deepa Alagesan on behalf of Hanad Abdi, Johan Barrios Ramos (Alagesan, Deepa) (Entered: 11/27/2017)
60 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/27/2017, before Judge Elizabeth A. Wolford. Court Reporter/Transcriber Karen J. Bush, Telephone number 585-613-4312. 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 12/28/2017. Redacted Transcript Deadline set for 1/8/2018. Release of Transcript Restriction set for 3/7/2018. (NRE) (Entered: 12/07/2017)
61 DECLARATION of Johan Barrios Ramos filed by Johan Barrios Ramos. (NRE) (Entered: 12/08/2017)
62 Minute Entry for proceedings held before Hon. Elizabeth A. Wolford: Appearances: Aadhithi Padmanabhan, Esq/pl; Christopher Dunn, Esq./pl.; Robert Hodgson, Esq./pl Tashiba Monique Peoples, Esq.def.; Kathryn Smith, AUSA. Motion Hearing held on 12/7/2017 re 19 MOTION to Certify Class filed by Johan Barrios Ramos, Hanad

12/14/2017 12/15/2017 12/18/2017 12/19/2017
01/08/2018

Abdi. Court reserves decision. (Court Reporter KB.) (LMD) (Entered: 12/13/2017)
63 STATUS REPORT by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration of Jack Bennett, # 2 Declaration of Darius Reeves, # 3 Exhibit IJ Order)(Peoples, Tashiba) (Entered: 12/14/2017)
64 REPLY/RESPONSE to re 63 Status Report filed by Hanad Abdi, Johan Barrios Ramos. (Hodgson, Robert) (Entered: 12/15/2017)
65 STATUS REPORT by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration of Carol Bridge)(Peoples, Tashiba) (Entered: 12/18/2017)
66 DECISION AND ORDER granting 19 Motion to Certify Class and the class and subclass are defined as follows:
Class: All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole.
Subclass: All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge.
Further, that pursuant to Fed. R. Civ. P. 23(c)(1)(B), the New York Civil Liberties Foundation and the International Refugee Assistance Project are hereby appointed as class counsel;
Further, that the November 17, 2017, Decision and Order is hereby modified insofar as the preliminary injunction now applies to members of the certified class and subclass, rather than members of the putative class. Signed by Hon. Elizabeth A. Wolford on 12/19/2017. (LMD) (Entered: 12/19/2017)
67 MOTION Motion for Clarification of Preliminary Injunction re 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Memorandum in Support of Motion for Clarification of Preliminary Injunction, # 2 Declaration of Kathryn Meyer, # 3 Declaration of Scout Katovich, # 4 Text of Proposed Order)(Padmanabhan, Aadhithi) (Entered: 01/08/2018)

01/08/2018
01/09/2018
01/09/2018 01/09/2018 01/09/2018 01/09/2018

68 MOTION to Expedite Consideration of Motion for Clarification of Preliminary Injunction by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Motion for Clarification of Preliminary Injunction, # 3 Exhibit Memorandum of Law in Support of Motion for Clarification of Preliminary Injunction, # 4 Exhibit Declaration of Kathryn Meyer, # 5 Exhibit Declaration of Scout Katovich, # 6 Exhibit Proposed Order for Motion for Clarification of Preliminary Injunction)(Padmanabhan, Aadhithi) (Entered: 01/08/2018)
69 TEXT ORDER re 68 MOTION to Expedite Consideration of Motion for Clarification of Preliminary Injunction. The Court intends to expedite the handling of Petitioners' 67 Motion for Clarification of Preliminary Injunction. Petitioners have proposed the deadline for Respondents to file any opposition papers as January 16, 2018, with any reply to be filed by January 19, 2018. By 5 PM today, Respondents shall advise as to their position with respect to this proposed schedule, and any proposed alternative schedule.
In addition, the Court intends to schedule a hearing on this motion as soon as practicable after the briefing is completed. Counsel for both parties must advise the Court by 5 PM today of any dates within the next several weeks where they are unavailable to appear in either Rochester or Buffalo.
The communications requested by this Text Order may be submitted to the Court by letter. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 1/9/18. (PFC) (Entered: 01/09/2018)
70 NOTICE of Appearance by Nicole N. Murley on behalf of All Defendants (Murley, Nicole) (Entered: 01/09/2018)
71 REPLY/RESPONSE to re 69 Text Order,,, Letter Informing Court of Petitioners' Counsel's Availability for a Hearing filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 01/09/2018)
72 REPLY/RESPONSE to re 69 Text Order,,, filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Young, Stacey) (Entered: 01/09/2018)
73 TEXT ORDER regarding 67 Motion for Clarification of Preliminary Injunction and 68 Motion to Expedite. The 68 Motion to Expedite is granted, in part. The Government's response to the 67 Motion for Clarification is due on or before 1/22/18. Petitioners' reply is due on or before 1/25/18 at 10 AM. Oral argument is set for 1/26/18 at 1 PM in US Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before

01/09/2018 01/11/2018 01/12/2018 01/17/2018
01/22/2018 01/23/2018

Hon. Elizabeth A. Wolford. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 1/9/18. (ZML) (Entered: 01/09/2018)
CALENDAR EVENT: Set/Reset Deadlines as to 67 MOTION Motion for Clarification of Preliminary Injunction re 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction. Responses due by 1/22/2018. Replies due by 1/25/2018. Motion Hearing set for 1/26/2018 01:00 PM in US Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Elizabeth A. Wolford. (ZML) (Entered: 01/09/2018)
74 INTERLOCUTORY APPEAL as to 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. Appeal Record due by 1/25/2018. (Peoples, Tashiba) Modified on 1/12/2018 to correct type of appeal (NRE). (Entered: 01/11/2018)
E-Filing Notification: regarding 74 NOTICE OF APPEAL; Incorrect event used to electronically file document. For future reference, use Interlocutory Appeal event. No action required. (NRE) (Entered: 01/12/2018)
75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 12/7/2017, before Judge Elizabeth A. Wolford. Court Reporter/Transcriber Karen J. Bush, Telephone number 585-613-4312. 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 2/7/2018. Redacted Transcript Deadline set for 2/20/2018. Release of Transcript Restriction set for 4/17/2018. (KM) (Entered: 01/17/2018)
76 RESPONSE in Opposition re 67 MOTION Motion for Clarification of Preliminary Injunction re 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration, # 2 Exhibit)(Young, Stacey) (Entered: 01/22/2018)
77 TEXT ORDER. Due to a conflict with the Court's criminal calendar, the 73 oral argument scheduled for January 26, 2018, at 1:00 P.M., is adjourned to January 26, 2018, at 2:00 P.M., and will be held at the U.S. Courthouse, 2 Niagara Square, Buffalo, N.Y., before the Hon. Elizabeth A. Wolford. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 1/23/2018. (Please note: The time is the only change to one hour later. The date of January 26, 2018, remains as originally scheduled.) (PFC) (Entered: 01/23/2018)

01/25/2018
01/26/2018
01/29/2018 02/04/2018 02/08/2018 02/09/2018

78 REPLY/RESPONSE to re 76 Response in Opposition to Motion, 67 MOTION Motion for Clarification of Preliminary Injunction re 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction (Reply in Support of Motion for Clarification) filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Declaration of Paige Austin in Support of the Petitioners' Motion for Clarification)(Hodgson, Robert) (Entered: 01/25/2018)
79 Minute Entry for proceedings held before Hon. Elizabeth A. Wolford: Motion Hearing held on 1/26/2018 re 67 MOTION Motion for Clarification of Preliminary Injunction re 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction filed by Johan Barrios Ramos, Hanad Abdi. Decision reserved. Appearances: Petitioner-Aadhithi Padmanabham, Deepa Alagesan, Christopher Dunn, Respondent-Nicole Murley, Stacey Young. (Court Reporter Karen Bush.) (SDW) (Entered: 01/26/2018)
80 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals (Attachments: # 1 Index)(NRE) (Entered: 01/29/2018)
81 MOTION to Seal Document by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions.(Young, Stacey) (Entered: 02/04/2018)
82 STIPULATED PROTECTIVE ORDER. Signed by Hon. Elizabeth A. Wolford on 2/8/2018. (NRE) (Entered: 02/08/2018)
83 DECISION AND ORDER granting 67 Motion for clarification. The Court clarifies that the November 17, 2017, Decision requires that once an IJ has determined that a detainee shall be released on bond, he or she must consider the financial circumstances of each subclass member and alternative conditions of release in setting the amount of bond. Accordingly,
IT IS HEREBY ORDERED that for all subclass members provided a bond hearing pursuant to the Court's November 17, 2017, Decision, the IJ, when setting the terms of any subclass member's release at a bond hearing, must consider alternative conditions of release and the individual's ability to pay; and it is further
ORDERED that for those subclass members who have already received a bond hearing pursuant to the November 17, 2017, Decision who remained detained notwithstanding an IJ's determination that release on bond would be appropriate, bond hearings must be recalendared and the

02/15/2018 02/20/2018 03/02/2018 04/13/2018
05/30/2018 05/30/2018

record reopened for the IJ to consider alternative conditions of release and the individual's ability to pay; and it is further
ORDERED that counsel for Respondents shall notify Class Counsel of the date and location of each bond hearing set pursuant to this Decision and Order at leave five days in advance of the hearing.
SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 02/09/2018. (LMD) Modified on 2/9/2018 (ZML). (Main Document 83 replaced on 2/9/2018) (LMD). (Entered: 02/09/2018)
84 NOTICE OF INTERLOCUTORY APPEAL as to 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction, 83 Order on Motion for Miscellaneous Relief,,,,, by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. Appeal Record due by 3/1/2018. (Peoples, Tashiba) (Entered: 02/15/2018)
85 RESPONSE to Motion re 81 MOTION to Seal Document filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 02/20/2018)
86 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals (Attachments: # 1 Supplemental/Amended Index to Record on Appeal)(NRE) (Entered: 03/02/2018)
87 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 1/26/2018, before Judge Elizabeth A. Wolford. Court Reporter/Transcriber Karen J. Bush, Telephone number 585-613-4312. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/4/2018. Redacted Transcript Deadline set for 5/14/2018. Release of Transcript Restriction set for 7/12/2018. (NRE) (Entered: 04/13/2018)
88 TEXT ORDER dismissing 81 Motion to Seal Document. The Government's attorney has informed the Court that the Government no longer wishes to pursue the relief requested in its 81 Motion to Seal Document. Accordingly, the Government's motion to seal is dismissed. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/30/2018. (PFC) (Entered: 05/30/2018)
89 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions (Related to Decision and Order on Motion for Clarification (ECF No. 83)). (Attachments: # 1 Exhibit Bond hearing transcript 1 of

10/30/2018 10/31/2018 11/02/2018 11/02/2018
11/07/2018

5, # 2 Exhibit Bond hearing transcript 2 of 5, # 3 Exhibit Bond hearing transcript 3 of 5, # 4 Exhibit Bond hearing transcript 4 of 5, # 5 Exhibit Bond hearing transcript 5 of 5)(Padmanabhan, Aadhithi) (Entered: 05/30/2018)
90 MANDATE of USCA as to 74 Notice of Interlocutory Appeal, 84 Notice of Interlocutory Appeal, filed by Elaine C Duke, John Kelly, Jefferson Sessions, Thomas Brophy, Jeffrey Searls; ORDERED that the appeal is REMANDED to the district court for further consideration. (NRE) (Entered: 10/30/2018)
91 MOTION to Vacate 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction, 83 Order on Motion for Miscellaneous Relief,,,,, by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Memorandum in Support)(Peoples, Tashiba) (Entered: 10/31/2018)
92 MOTION Requesting Status Conference by Hanad Abdi, Johan Barrios Ramos.(Padmanabhan, Aadhithi) (Entered: 11/02/2018)
93 TEXT ORDER denying without prejudice 92 Motion Requesting Status Conference. Petitioners have filed a motion requesting that the Court hold a status conference to determine an appropriate process by which to address the issues now before it upon remand by the United States Court of Appeals for the Second Circuit. (Dkt. 92; see Dkt. 90). While the Court agrees that formulating an orderly process is appropriate, due to the Court's criminal docket, it does not presently have time to schedule a status conference. However, in lieu of a status conference, the Court hereby orders that counsel confer and submit a joint proposal to address a briefing schedule and a proposed oral argument date for the pending 91 motion to vacate and any other related applications for relief by Wednesday November 7, 2018. If counsel are unable to agree upon a joint proposal, each side must submit its own competing proposal by November 7, 2018. Upon review of the parties' filings, the Court will issue an appropriate briefing schedule and will set a date for oral argument. Briefing on Respondents' 91 motion to vacate is held in abeyance until further order of the Court. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 11/02/2018. (PFC) (Entered: 11/02/2018)
94 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions with the petitioners' proposed schedule for remand proceedings. (Padmanabhan, Aadhithi) (Entered: 11/07/2018)

11/07/2018 11/08/2018
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95 REPLY/RESPONSE to re 93 Order on Motion for Miscellaneous Relief,,,,, filed by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Peoples, Tashiba) (Entered: 11/07/2018)
96 TEXT ORDER. The Court has reviewed the parties' submissions 94 95 in response to the Court's Text Order 93 . After considering the issues and the parties' respective positions, the Court is not inclined to hold briefing in abeyance with respect to any properlyfiled motion. This does not mean that the Court will deny Petitioners' anticipated motion for limited discovery, nor does it mean that Petitioners cannot oppose the pending Motion to Vacate on the ground that discovery is needed to adequately address the motion. If the Court ultimately determines that limited discovery is warranted, it may very well defer rendering a decision on any pending substantive motion and permit the parties to supplement their filings. But at this stage, the Court is not in a position to determine whether, indeed, it will permit limited discovery—particularly where no such motion has been filed.
While Respondents advance setting a briefing schedule in accordance with this Court's Local Rules, the briefing deadlines set forth in the Court's Local Rules apply only in the absence of a Court Order, and as a matter of practice this Court sets its own briefing schedules. Accordingly, the Court hereby sets the following briefing schedule for the Motion to Vacate 91 . Petitioners' papers in opposition are due on or before December 7, 2018, and any reply papers are due on or before December 21, 2018. The Court intends to schedule oral argument to address this motion, and a date and time for oral argument will be subsequently scheduled.
Upon the filing of any further motion as referenced in the parties' submissions, including any motion for discovery or motion to decertify the class, the Court will set a briefing schedule with respect to that motion. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 11/08/2018. (PFC) (Entered: 11/08/2018)
97 NOTICE of Appearance by Heidi Lynne Levine on behalf of Hanad Abdi, Johan Barrios Ramos (Levine, Heidi) (Entered: 12/03/2018)
98 NOTICE of Appearance by Michael D. Mann on behalf of Hanad Abdi, Johan Barrios Ramos (Mann, Michael) (Entered: 12/03/2018)
99 RESPONSE in Opposition re 91 MOTION to Vacate 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction, 83 Order on Motion for Miscellaneous Relief,,,,, filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Declaration of David Hausman, # 2 Declaration of Hon. Carol King, # 3 Declaration

of Nicholas J. Phillips, # 4 Declaration of Joseph Baptiste, # 5 Declaration of Ingrid Sydenstricker, # 6 Declaration of Victoria Roeck, # 7 Declaration of Amanda Blau)(Padmanabhan, Aadhithi) (Entered: 12/07/2018)

12/07/2018

100 DECLARATION re 99 Response in Opposition to Motion,, filed by Hanad Abdi, Johan Barrios Ramos filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 12/07/2018)

12/10/2018

101 DECLARATION signed by Joseph Baptiste re 99 Response in Opposition to Motion,, filed by Hanad Abdi, Johan Barrios Ramos (Amended ECF No. 99-4 to include Certificate of Translation) filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 12/10/2018)

12/13/2018

102 MOTION to Decertify the Bond Subclass by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Memorandum in Support)(Peoples, Tashiba) (Entered: 12/13/2018)

12/14/2018

103 TEXT ORDER re 102 Motion to Decertify the Bond Subclass. Responses are due on or before January 10, 2019. Replies are due on or before January 17, 2019. Upon receipt of all papers, the Court will determine whether oral argument is necessary, and if so, inform the parties of the date and time. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 12/14/18. (PFC) (Entered: 12/14/2018)

12/21/2018

104 REPLY to Response to Motion re 91 MOTION to Vacate 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction, 83 Order on Motion for Miscellaneous Relief,,,,, filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Young, Stacey) (Entered: 12/21/2018)

12/24/2018

105 MOTION for a Sur-Reply re 91 MOTION to Vacate 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction, 83 Order on Motion for Miscellaneous Relief,,,,, by Hanad Abdi, Johan Barrios Ramos.(Hirose, Mariko) (Entered: 12/24/2018)

12/26/2018

106 MOTION to Stay by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Memorandum in Support)(Young, Stacey) (Entered: 12/26/2018)

12/27/2018

107 TEXT ORDER re 106 Motion to Stay. Respondents request that the Court stay all deadlines currently pending in this action in light of the lapse in the Department of Justice's appropriations due to the partial government shutdown. Although Respondents indicate that Petitioners take no position on this motion, the Court requests that Petitioners file a response on or before Friday, January 4, 2019. In the meantime, all

other deadlines are held in abeyance pending resolution of this motion, and if necessary, new deadlines will be set once the motion to stay has been resolved. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 12/27/2018. (PFC) (Entered: 12/27/2018)

01/03/2019

108 REPLY/RESPONSE to re 107 Text Order,, on Respondents Motion for a Stay filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 01/03/2019)

01/04/2019

109 TEXT ORDER granting 106 Motion to Stay. Respondents have filed a motion requesting the Court to stay all deadlines currently pending in this action in light of the lapse in the Department of Justice's appropriations due to the partial government shutdown. Petitioners have filed a 108 response indicating that they do not oppose Respondents' motion. However, Petitioners wish to "reserve the right to petition the Court to lift the stay in the event that issues arise with the implementation of the preliminary injunction that require the Court's intervention." (Dkt. 108 at 1). Petitioners also "suggest that once the government's funding resumes, it notify the Court of its position on the petitioners' motion for a sur-reply within one business day of the end of the shutdown." (Id.).

Based upon a consideration of the parties' respective submissions, it is hereby ordered as follows: (1) Respondents' 106 motion is granted and all deadlines currently pending in this action are stayed. Respondents shall notify the Court as soon as Congress has appropriated funds for the Department of Justice so that counsel for Respondents are able to resume their normal work activities; (2) Nothing contained herein shall prevent Petitioners from seeking to lift the stay at any time or otherwise to seek the Court's intervention; and (3) Upon receiving notification as set forth in paragraph 1, or at such earlier time as directed by the Court, the Court will issue a scheduling order after receiving input from the parties wherein it shall set deadlines for various submissions, including a deadline for Respondents to respond to Petitioners' 105 motion for a sur-reply. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 1/4/19. (PFC) (Entered: 01/04/2019)
01/29/2019 110 NOTICE of Appearance by Kevin Charles Hirst on behalf of All Defendants (Hirst, Kevin) (Entered: 01/29/2019)

01/29/2019

111 NOTICE by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions of Restored Appropriations (Hirst, Kevin) (Entered: 01/29/2019)

01/29/2019 112 TEXT ORDER. On January 4, 2019, the Court granted Respondents' motion to stay all deadlines pending in this action in light of the lapse

in the Department of Justice's appropriations due to the partial government shutdown. (Dkt. 109). The Court also required Respondents to notify the Court as soon as Congress had appropriated funds for the Department of Justice. The Court indicated that it would issue a scheduling order setting deadlines for the pending motions in this matter after receiving input from the parties.

Respondents have filed a 111 notice alerting the Court that Congress has appropriated funds for the Department of Justice as of January 25, 2019, and its attorneys have resumed their usual civil litigation functions as of January 28, 2019. Accordingly, the Clerk of Court is directed to lift the stay in this action, and the Court hereby orders counsel to confer and submit a joint proposal—or, if counsel are unable to agree, individual proposals—by Monday, February 4, 2019, to address a further briefing schedule in this case. Counsel must also indicate their availability for oral argument after April 1, 2019. Upon review of the parties' filings, the Court will issue an appropriate briefing schedule and will set a date for oral argument. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 1/29/2019. (PFC)

-CLERK TO FOLLOW UP- (Entered: 01/29/2019)

02/04/2019

113 REPLY/RESPONSE to re 112 Text Order,,,,, Joint Letter Proposing Briefing and Oral Argument Schedule filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 02/04/2019)

02/04/2019

114 TEXT ORDER. On January 29, 2019, the Court 112 ordered counsel for both sides to submit a proposed briefing schedule for the pending motions in this case, and to apprise the Court of their availability for oral argument. On February 4, 2019, the parties submitted a 113 proposed joint briefing schedule to address these motions as well as several proposed oral argument dates that are amenable to both sides. The Court largely adopts the parties' proposed briefing schedule.

Accordingly, Respondents may submit opposition papers to Petitioners' 105 motion for a sur-reply on or before February 8, 2019. Petitioners may submit opposition papers to Respondents' 102 motion for decertification on or before March 1, 2019. Respondents' reply papers in further support of their motion for decertification are due on or before March 22, 2019. If the Court grants Petitioners leave to file a sur-reply, the Court will issue a further text order setting a deadline for Petitioners to file their sur-reply at that time. A Motion Hearing (oral argument) is set for May 15, 2019, at 2:00 PM in U.S. Courthouse, 100 State Street, Rochester NY 14614 before the undersigned. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 2/4/19. (PFC) (Entered: 02/04/2019)

02/08/2019

115 RESPONSE in Opposition re 105 MOTION for a Sur-Reply re 91 MOTION to Vacate 56 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction, 83 Order on Motion for Miscellaneous Relief,,,,, filed by Johan Barrios Ramos, Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Young, Stacey) (Entered: 02/08/2019)

02/13/2019 116 MOTION to Withdraw as Attorney For Petitioners by Hanad Abdi, Johan Barrios Ramos.(Austin, Paige) (Entered: 02/13/2019)

02/13/2019

117 TEXT ORDER granting 116 Motion to Withdraw as Attorney. Attorney Paige Austin is terminated. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 2/13/19. (PFC)

-CLERK TO FOLLOW UP- (Entered: 02/13/2019)

02/13/2019

118 TEXT ORDER denying 105 Motion for a Sur-Reply. After reviewing the parties' submissions, the Court does not see the need for an additional five-page sur-reply. Both sides have already provided comprehensive briefing on Respondents' 91 motion to vacate, and the Court has scheduled a motion hearing to further address that motion and Respondents' 102 motion to decertify. Additional briefing is also forthcoming on the 102 motion to decertify. The Court expects that it will be fully apprised of the parties' respective positions after a thorough consideration of the parties' written briefs and oral arguments. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 2/13/19. (PFC) (Entered: 02/13/2019)

03/01/2019 119 NOTICE of Change of Address by Mariko Hirose (Hirose, Mariko) (Entered: 03/01/2019)

03/01/2019 120 NOTICE of Change of Address by Deepa Alagesan (Alagesan, Deepa) (Entered: 03/01/2019)

03/01/2019

121 RESPONSE in Opposition re 102 MOTION to Decertify the Bond Subclass filed by Hanad Abdi, Johan Barrios Ramos. (Padmanabhan, Aadhithi) (Entered: 03/01/2019)

03/18/2019

122 MOTION Motion to Enforce Preliminary Injunction and Class Reporting Order by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Memorandum in Support of Motion to Enforce, # 2 Declaration of Aadhithi Padmanabhan, # 3 Declaration of Ingrid Sydenstricker, # 4 Declaration of Carla Prez, # 5 Declaration of Margret Lindstrom, # 6 Declaration of Joseph Moravec, # 7 Text of Proposed Order)(Padmanabhan, Aadhithi) (Entered: 03/18/2019)

03/19/2019

123 TEXT ORDER re 122 Motion to Enforce Preliminary Injunction and Class Reporting Order. Responses are due on or before April 9, 2019. Replies are due on or before April 16, 2019. If upon receipt of all the papers, the Court determines that oral argument is necessary, it will take place during the previously scheduled motion hearing set for May 15, 2019, at 2:00 PM, and the parties should plan for oral argument on that date. However, nothing in this Text Order should be construed as precluding the Court from resolving the motion on the papers in advance of May 15, 2019, if the Court deems it appropriate based upon its review of all the papers. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 3/19/19. (PFC) (Entered: 03/19/2019)

03/21/2019

124 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions informing the Court of March 19 Supreme Court decision in Nielsen v. Preap. (Hodgson, Robert) (Entered: 03/21/2019)

03/22/2019

125 REPLY to Response to Motion re 102 MOTION to Decertify the Bond Subclass filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Peoples, Tashiba) (Entered: 03/22/2019)

04/09/2019

126 NOTICE of Appearance by Antony Philip Falconer Gemmell on behalf of Hanad Abdi, Johan Barrios Ramos (Gemmell, Antony) (Entered: 04/09/2019)

04/09/2019

127 RESPONSE in Opposition re 122 MOTION Motion to Enforce Preliminary Injunction and Class Reporting Order filed by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration, # 2 Declaration)(Young, Stacey) (Entered: 04/09/2019)

04/16/2019

128 REPLY to Response to Motion re 122 MOTION Motion to Enforce Preliminary Injunction and Class Reporting Order filed by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Declaration of Victoria Roeck, # 2 Declaration of Margret Lindstrom)(Padmanabhan, Aadhithi) (Entered: 04/16/2019)

04/30/2019

129 DECISION AND ORDER granting in part 122 Petitioners' Motion to Enforce Preliminary Injunction and Class Reporting Order by Hanad Abdi, Johan Barrios Ramos to the extent that Respondents are hereby ordered to produce a witness or witnesses for deposition within thirty (30) days of this Court's Decision and Order who has personal knowledge of the methodology being used by Respondents to identify and report class members and who can testify concerning any changes made or that will be made by Respondents to address the recurring errors in the identification of class members. The Court otherwise reserves decision on the remaining aspects of the motion and all parties

shall plan on addressing these issues at the upcoming oral argument scheduled for May 15, 2019. Signed by Hon. Elizabeth A. Wolford on 4/30/2019. (DPS) (Entered: 04/30/2019)

04/30/2019

130 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions informing the Court of April 25 Second Circuit decision in Ragbir v. Homan. (Hirose, Mariko) (Entered: 04/30/2019)

05/01/2019 131 NOTICE of Appearance by Victoria Marie Roeck on behalf of Hanad Abdi, Johan Barrios Ramos (Roeck, Victoria) (Entered: 05/01/2019)

05/03/2019

132 TEXT ORDER. Due to a conflict with a criminal jury trial, the Motion Hearing (oral argument) set for May 15, 2019, at 2:00 P.M., is hereby rescheduled. The Motion Hearing (oral argument) will now take place on Wednesday, May 29, 2019, at 3:45 P.M. in US Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before the undersigned. PLEASE NOTE THE LOCATION CHANGE TO THE BUFFALO COURTHOUSE. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/3/19. (PFC) (Entered: 05/03/2019)

05/03/2019

133 Letter filed by Jeffrey Searls, Elaine C Duke, Thomas Brophy, Jefferson Sessions as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions regarding Ragbir v. Homan. (Peoples, Tashiba) (Entered: 05/03/2019)

05/14/2019

134 MOTION to Adjourn Oral Argument by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Mariko Hirose, # 3 Declaration of Ingrid Sydenstricker, # 4 Text of Proposed Order)(Hirose, Mariko) (Entered: 05/14/2019)

05/15/2019

135 TEXT ORDER re 134 Motion to Adjourn Oral Argument. Opposition papers, if any, are due on or before May 17, 2019. Upon receipt of all papers, the motion will be deemed submitted. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/15/19. (PFC) (Entered: 05/15/2019)

05/17/2019

136 MEMORANDUM in Opposition re 134 MOTION to Adjourn Oral Argument filed by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Peoples, Tashiba) (Entered: 05/17/2019)

05/17/2019

137 TEXT ORDER granting in part 134 Motion to Adjourn Oral Argument. Petitioners request that the Court adjourn the motion hearing currently set for May 29, 2019, because Petitioners' attorneys who had been preparing for oral argument will be unavailable. Petitioners request for oral argument to be adjourned until after July 8, 2019. Respondents argue that Petitioners have not established good cause for their requested adjournment, and that Respondents would be prejudiced if

the Court entertained any further adjournment of the oral argument date. However, the primary reasons for the delay up to this point have been the partial government shutdown and the Court's criminal calendar. Petitioners have not engaged in dilatory tactics to stall the Court's consideration of the pending motions, and it is likely that oral argument would have already taken place had the Court not had to reschedule briefing deadlines and the initial oral argument date in light of the government shutdown. The Court considers Petitioners' general request for an adjournment to be reasonable, and thus, the Court grants Petitioners' 134 motion to adjourn oral argument.

Nonetheless, adjourning oral argument to a date after July 8, 2019, is not warranted under the circumstances. Petitioners and Respondents have suggested alternative dates for oral argument that would be amenable to both sides. In balancing Petitioners' need for additional time to prepare and Respondents' concern for delaying the resolution of the pending motions, the Court hereby adjourns oral argument to June 10, 2019, at 12:30 PM in US Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before the undersigned. The motion hearing will be held at the federal courthouse in Buffalo because the undersigned will be there on trial in a criminal case. If for some reason that changes, the parties will be so advised. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/17/19. (PFC) (Entered: 05/17/2019)

05/21/2019

138 MOTION to Withdraw as Attorney by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Declaration of Aadhithi Padmanabhan)(Padmanabhan, Aadhithi) (Entered: 05/21/2019)

05/22/2019

139 TEXT ORDER granting 138 Motion to Withdraw as Attorney. Attorney Aadhithi Padmanabhan is terminated. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/22/19. (PFC)

-CLERK TO FOLLOW UP- (Entered: 05/22/2019)

06/06/2019 140 STATUS REPORT by Hanad Abdi, Johan Barrios Ramos. (Roeck, Victoria) (Entered: 06/06/2019)

06/10/2019

141 Minute Entry for proceedings held before Hon. Elizabeth A. Wolford: Appearances: Mariko Hirose, Esq., Robert A. Hodgson, Esq., Christopher T. Dunn, Esq. and Victoria M. Roeck, Esq. on behalf of Petitioners; Kevin C. Hirst, Esq. and Stacey I. Young, Esq. on behalf of Respondents. Oral Argument held on 6/10/2019 regarding pending motions 91 , 102 , and 122 . Court reserves decision with regard to 91 and 102 . The Court advises that the Preliminary Injunction is still in place and orders a verbal directive that government counsel confer with petitioners' counsel. Petitioners are to advise the Court by

6/14/2019 as to any outstanding issues. The government will have one week to respond, after which time the Court will issue a decision with regard to remaining aspects of motion 122 . (Court Reporter Karen Bush.) (DPS) (Entered: 06/10/2019)

06/14/2019

142 REPLY/RESPONSE to re 141 Oral Argument,,, Regarding Outstanding Issues on Petitioners' Motion to Enforce filed by Hanad Abdi, Johan Barrios Ramos. (Roeck, Victoria) (Entered: 06/14/2019)

06/21/2019

143 STATUS REPORT by Thomas Brophy, Elaine C Duke, Jeffrey Searls, Jefferson Sessions. (Attachments: # 1 Declaration Declaration of Christopher Hess, # 2 Declaration Declaration of Jeffrey Searls)(Hirst, Kevin) (Entered: 06/21/2019)

06/27/2019

144 AMENDED DOCUMENT by Thomas Brophy, Elaine C Duke, John Kelly, Jeffrey Searls, Jefferson Sessions. Amendment to 143 Status Report . (Attachments: # 1 Declaration Declaration of Christopher Hess, # 2 Declaration Declaration of Jeffrey Searls, # 3 Declaration Declaration of Emily Barry-Murphy)(Hirst, Kevin) (Entered: 06/27/2019)

06/28/2019

145 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions informing the Court of decisions unavailable on Westlaw. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirose, Mariko) (Entered: 06/28/2019)

07/02/2019

146 Letter filed by Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions . (Hirst, Kevin) (Entered: 07/02/2019)

07/25/2019 147 NOTICE of Appearance by Kathryn S. Austin on behalf of Hanad Abdi, Johan Barrios Ramos (Austin, Kathryn) (Entered: 07/25/2019)

08/05/2019

148 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Proceedings held on 6/10/2019, before Judge Elizabeth A. Wolford. Court Reporter/Transcriber Karen J. Bush, Contact Info (585) 6134312. 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 8/26/2019. Redacted Transcript Deadline set for 9/5/2019. Release of Transcript Restriction set for 11/4/2019. (KM) (Entered: 08/05/2019)

08/09/2019 149 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson

Sessions informing the Court of Clerveaux v. Searls. (Attachments: # 1 Exhibit A)(Hirose, Mariko) (Entered: 08/09/2019)

08/13/2019

150 Letter filed by Jeffrey Searls, Elaine C Duke, Thomas Brophy, Jefferson Sessions as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions regarding Clerveaux v. Searls. (Peoples, Tashiba) (Entered: 08/13/2019)

09/24/2019

151 DECISION AND ORDER granting 102 Motion to Decertify Subclass; denying as moot 91 Motion to Vacate Preliminary Injunction; denying as moot 122 Motion to Enforce Preliminary Injunction. Signed by Hon. Elizabeth A. Wolford on 09/24/2019. (CDH) (Entered: 09/24/2019)

09/26/2019

152 TEXT ORDER. Pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of Court is directed to substitute Kevin McAleenan, Acting Secretary of the U.S. Department of Homeland Security for the named Defendant Elaine C. Duke; and William Barr, Attorney General of the United States for the named Defendant Jefferson Sessions. "An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party." Fed. R. Civ. P. 25(d). SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/26/2019. (KAC)

-CLERK TO FOLLOW UP- (Entered: 09/26/2019)

07/10/2020

153 TEXT ORDER. The parties are instructed to submit a joint status report as to whether there are outstanding claims that require resolution by the Court or whether the case should be closed. The status report must be filed on or before July 31, 2020. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on July 10, 2020. (JT) (Entered: 07/10/2020)

07/24/2020

154 MOTION to Withdraw as Attorney by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Declaration of Victoria Roeck)(Roeck, Victoria) (Entered: 07/24/2020)

07/24/2020

155 TEXT ORDER granting 154 Motion to Withdraw as Attorney. The Clerk of Court shall terminate Victoria Roeck as counsel of record for Petitioner. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on July 24, 2020. (JT)

-CLERK TO FOLLOW UP- (Entered: 07/24/2020)

07/31/2020

156 STATUS REPORT The Parties' Joint Status Report submitted pursuant to the Court's July 10 text order (ECF153) by Hanad Abdi, Johan Barrios Ramos. (Hodgson, Robert) (Entered: 07/31/2020)

07/31/2020

157 TEXT ORDER. Counsel for the parties indicate that they are in the process of meeting and conferring regarding a potential settlement that would resolve the case in its entirety. (Dkt. 156 at 1). Accordingly, the parties are hereby ordered to file a further status update on or before August 21, 2020, as to the status of their negotiations. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on July 31, 2020. (JT) (Entered: 07/31/2020)

08/21/2020

158 STATUS REPORT Joint Status Update Regarding Ongoing Negotiations by Hanad Abdi, Johan Barrios Ramos. (Hodgson, Robert) (Entered: 08/21/2020)

08/21/2020

159 TEXT ORDER. Counsel for the parties indicate that they need additional time to review the proposed terms of settlement and to obtain approval for any agreement reached. (Dkt. 158 at 2). Accordingly, the parties are hereby ordered to file a further status update on or before September 11, 2020, as to the status of their negotiations. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on August 21, 2020. (JT) (Entered: 08/21/2020)

09/11/2020 160 STATUS REPORT Parties' Joint Status Update by Hanad Abdi, Johan Barrios Ramos. (Hodgson, Robert) (Entered: 09/11/2020)

09/24/2020

161 TEXT ORDER. Counsel for the parties now indicate that they no longer intend to reach a settlement. Counsel also indicate that they need additional time to continue their negotiations regarding stipulations that would streamline discovery or render it unnecessary. (Dkt. 160). Accordingly, the parties are hereby ordered to file a further status update on or before October 2, 2020, which may include a joint proposed schedule or each party's respective proposed schedule. Should the parties agree that discovery is necessary, the matter will be then referred to a Magistrate Judge. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on September 24, 2020. (JT) (Entered: 09/24/2020)

10/02/2020 162 STATUS REPORT Joint Status Update by Hanad Abdi, Johan Barrios Ramos. (Hodgson, Robert) (Entered: 10/02/2020)

10/02/2020

163 TEXT ORDER re 162 Status Report. The Court grants the parties' request that they be permitted to continue negotiations as to the necessary scope of discovery. The parties shall provide a status update regarding such negotiations to the Court by no later than October 23, 2020. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 10/02/2020. (CDH) (Entered: 10/02/2020)

10/23/2020 164 STATUS REPORT AND JOINT STIPULATION by Hanad Abdi, Johan Barrios Ramos. (Attachments: # 1 Exhibit EXHIBIT A: Joint

Stipulation of Facts Regarding Summary Judgment Briefing)(Hodgson, Robert) (Entered: 10/23/2020)

11/17/2020

165 Letter filed by Hanad Abdi, Johan Barrios Ramos as to Jeffrey Searls, Elaine C Duke, Thomas Brophy, John Kelly, Jefferson Sessions Joint Letter Regarding Amended Proposed Deadlines. (Hodgson, Robert) (Entered: 11/17/2020)

11/18/2020

166 TEXT ORDER. Pursuant to the parties' joint proposal (see Dkt. 165), the Court sets the following deadlines: Petitioners shall file their motion for summary judgment by no later than January 28, 2021. Respondents shall file their combined opposition to Petitioners' summary judgment motion and cross-motion for summary judgment by no later than February 25, 2021. Petitioners shall file their combined opposition to Respondents' motion for summary judgment and reply in further support of their motion for summary judgment by no later than March 18, 2021. Respondents shall file their reply in further support of their cross-motion for summary judgment by no later than April 1, 2021. There shall be a 25-page limit for supporting and opposing memoranda and a 10-page limit for Respondents' reply. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 11/18/2020. (CDH) (Entered: 11/18/2020)

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 Case 1:17-cv-00721-EAW Document 66 Filed 12/19/17 Page 1 of 24

UNITED STATES DISTRJCT COURT WESTERN DISTRJCT OF NEW YORK

HANAD ABDI and JOHAN BARRJOS RAMOS, on behalf of himself and all other similarly situated,
Petitioners, v.

DECISION AND ORDER 1: 17-CV-0721 EAW

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office oflmmigration and Customs Enforcement; JEFFREY SEARLS, in his official Capacity as Acting Administrator of the Buffalo Federal Detention Facility; and JEFFERSON SESSIONS , in his official capacity as Attorney General of the United States,

Respondents.

INTRODUCTION Petitioners Hanad Abdi ("Abdi") and Johan Barrios Ramos ("Barrios Ramos") brought this action seeking relief on behalf of themselves individually and on behalf of a proposed class of similarly situated asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York. (Dkt. 17). On August 25 , 2017, Petitioners moved to certify a proposed class of all arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole, as well as a proposed subclass of all arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview,

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Case 1:17-cv-00721-EAW Document 66 Filed 12/19/17 Page 2 of 24
and have been or will be detained for more than six months without a bond hearing before an immigration judge. (Dkt. 19 at 1).
On September 12, 2017, Respondents moved to dismiss for lack ofjurisdiction and failure to state a claim. (Dkt. 27). Respondents then moved to stay the motion to certify the class, pending resolution of the motion to dismiss (Dkt. 33). On September 18, 2017, the Court issued a Text Order holding the briefing on the motion to certify in abeyance until further order of the Court. (Dkt. 35). On September 25, 2017, Petitioners moved for a preliminary injunction. (Dkt. 38). The Court heard argument on the motion to dismiss and the motion for a preliminary injunction on October 27,2017. On October 30,2017, the Court issued a Text Order denying the motion to stay the motion to certify and ordering that the briefing on the motion to certify was no longer held in abeyance. (Dkt. 52). Respondents filed their response in opposition to the motion to certify on November 13, 2017 (Dkt. 55), and Petitioners filed their reply on November 17, 2017 (Dkt. 57).
On November 17, 2017, the Court issued a Decision and Order (Dkt. 56) denying Respondents' motion to dismiss (Dkt. 27) and granting Petitioners' motion for a preliminary injunction (Dkt. 38) (the "November 17, 2017, Decision and Order"). The Court ordered Respondents to immediately adjudicate or readjudicate the parole applications of all members of the putative class, in conformance with their legal obligations, including their obligations under ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear ofPersecution or Torture (Dec. 8, 2009) (the "ICE Directive"). (Dkt. 56 at 65). The Court also ordered Respondents to provide individualized bond hearings to members of the putative subclass who have been detained
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Case 1:17-cv-00721-EAW Document 66 Filed 12/19/17 Page 3 of 24
for six months or more, as required by 8 U.S.C. § 1225(b). (!d. at 66). Familiarity with the November 17, 20 17, Decision and Order is presumed for purposes of this Decision and Order.
On December 7, 2017, the Court held argument on the motion to certify the class. At the argument, the Court asked Respondents to submit supplemental briefing addressing where individuals taken into ICE custody are housed. On December 14, 2017, Respondents submitted a filing addressing that issue. (Dkt. 63). On December 15, 2017, Petitioners submitted a responsive filing. (Dkt. 64). Respondents submitted a reply on December 18, 2017. (Dkt. 65).
For the following reasons, the motion to certify the class (Dkt. 19) is granted. DISCUSSION
Although the Second Circuit has held that "the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by [Federal Rule of Civil Procedure 23]," US. ex rei. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), courts have held that "[h]abeas class actions are an appropriate procedural vehicle in certain limited situations," Wang v. Reno, 862 F. Supp. 801, 811 (E.D.N.Y. 1994). In Sero, the court concluded that a habeas class action was appropriately certified due to the fact that many of the class members were illiterate or poorly educated; most would not otherwise have had the benefit of counsel; and it was therefore not improbable that more than a few would not otherwise have received the relief sought. 506 F.2d at 1126. The court also considered judicial economy as a compelling reason for proceeding with a class action. !d.
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Case 1:17-cv-00721-EAW Document 66 Filed 12/19/17 Page 4 of 24
Those reasons for class certification are also present in this case, and the Court concludes that certification is appropriate.
Courts that have proceeded with class claims in habeas cases have applied the Rule 23 requirements in determining whether to certify the multiparty action. See id. at 112627 (setting out and applying requirements of Rule 23(a)); Bertrand v. Sava, 684 F.2d 204, 219 (2d Cir. 1982) (finding no error in lower court's decision, based upon requirements of Rule 23, "to certify a class of all Haitian aliens ... who have requested political asylum and parole, but have remained in [the] respondent's custody" (internal quotation marks omitted)); US. ex rei. Walker v. Mancusi, 338 F. Supp. 311, 315-16 (W.D.N.Y. 1971) (employing Rule 23 to certify class of38 inmates seeking habeas relief), aff'd, 467 F.2d 51 (2d Cir. 1972).
Here, the parties agree that, "[i]n determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Rule 23(a)...." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008). Specifically, the court must conclude that the claims meet the following requirements:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions oflaw or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the
interests of the class. Fed. R. Civ. P. 23(a). Then, the court may consider granting class certification where one of the scenarios set forth under Fed. R. Civ. P. 23(b)(l)-(3) is satisfied. "The party seeking
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class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). I. Rule 23(a) Class Criteria
A. Implied Requirement of Ascertainability The Court begins with Respondents' argument that Petitioners' proposed class definitions do not satisfy the implied requirement of ascertainability. See, e.g., Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125, 135 (S.D.N.Y. 2003); People Unitedfor Children, Inc. v. City ofNew York, 214 F.R.D. 252, 256 (S.D.N.Y. 2003). "[T]he requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." Mike v. Safeco Ins. Co. ofAm., 223 F.R.D. 50, 52-53 (D. Conn. 2004) (internal quotation marks omitted) (alteration in original). Furthermore, a class should be narrowly tailored to include only aggrieved parties. See Colozzi v. St. Joseph's Hosp. Health Ctr., 275 F.R.D. 75, 86 (N.D.N.Y. 2011). First, Respondents argue that Petitioners' class definitions are overbroad, imprecise, and unascertainable insofar as they contemplate future class members. (Dkt. 55 at 25-26). Petitioners have defined the proposed class and subclass as follows: Proposed class: All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole. Proposed subclass: All arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and
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have been or will be detained for more than six months without a bond hearing before an immigration judge. (Dkt. 19-1 at 11-12). According to Respondents, the inclusion of individuals who "will be detained," in both the proposed class and the proposed subclass, is problematic because it includes "countless persons who will be detained at [the Buffalo Federal Detention Facility] at some unidentified point in the future," as well as "any asylum-seeker detained [at the facility] who passed a credible fear interview-on the basis that he or she might be detained for more than six months." (Dkt. 55 at 26). In general, the fact that future members are included in a proposed class does not pose an obstacle to certification. See, e.g., Duprey v. Conn. Dept. ofMotor Vehicles, 191 F.R.D. 329, 338 (D. Conn. 2000) ("It is not at all uncommon for a class to include future members, who may generally avail themselves of the same relief available to class members who have already sustained damages."); Ashe v. Bd. OfElections in City ofN.Y., 124 F.R.D. 45, 47 (E.D.N.Y. 1989) ("Nor does the fact that future members are included pose an obstacle [to certification]."). Even so, courts routinely limit class definitions. In In re Currency Conversion Fee Antitrust Litig., 229 F.R.D. 57, 63 (S.D.N.Y. 2005), the court declined to include in the certified class one ofthree proposed categories of putative class members, because "there was no cognizable injury when this action commenced." The third category included "cardholders whose first foreign exchange transaction on their credit card occurred after the arbitration clause was added to their cardholder agreement during this litigation." !d. The court explained that, "[w]hile a class may contain future members, ... an individual cannot be a putative class member if he suffers no injury or is
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not under imminent threat of injury." !d. The individuals in the third category could not have suffered an injury because "before these cardholders' rights in this action could have materialized, they agreed to forego those rights" when an arbitration clause was added to the cardholder agreement. !d. That case is distinguishable because, here, there has been no intervening change in immigration law or policy that would prevent future class members from suffering a cognizable injury.
At oral argument, Respondents cited Strouchler v. Shah, 286 F.R.D. 244 (S.D.N.Y. 20 12) in support of their argument that the phrase "will be" should not be included in the class definitions. In Strouchler, an action for improper termination of Medicaid home care services, the petitioners sought to certify a class of individuals "whose care has been reduced or discontinued ... because the City Defendant has determined or will determine that they do not meet the medical criteria for these services." !d. at 245-46 (emphasis added). The court agreed with the defendant that that language was overbroad and instead certified a class of individuals "whose care has been unlawfully reduced or discontinued because the City Defendant has determined that they do not meet the medical criteria for these services." !d. at 247 (emphasis added). In that case, the reason for the change in the class definition was that the class, as proposed, could have included individuals whose services were lawfully reduced or terminated. !d. That reasoning does not apply here and does not pertain to Respondents' argument regarding future class members. 1 The Court
Respondents also cite Rappaportv. Katz, 62 F.R.D. 512 (S.D.N.Y. 1974), in support of their argument that future members should not be included in the certified class. In that case, the court held that the proposed class was "too amorphous and imprecise" and therefore "neither distinguishable nor definable." !d. at 513-14 (internal quotation marks
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concludes that the inclusion of future class members is appropriate in this case because they are under threat of imminent injury. See Arey v. Providence Hospital, 55 F.R.D. 62, 64 (D.D.C. 1972) (certifying class brought on behalf of "all black and female employees who have sought, might have sought, seek or might seek, employment and promotion by the defendant and who have been, might have been, continue to be or might be adversely affected because of their race and/or sex by defendant's employment practices"). In other words, if allowed to continue, Respondents' practice, at the Buffalo Federal Detention Facility, of failing to follow the ICE Directive when adjudicating parole requests and detaining asylum-seekers for longer than six months without a bond hearing, would necessarily impact not only those asylum-seekers presently housed at the Buffalo Federal Detention Facility, but also any future detainees.
Respondents made an additional, related argument before the Court. Respondents contend that class certification is inappropriate because members of the proposed classboth present and future detainees-are no longer under imminent threat of injury, in light of the preliminary injunction. The November 17, 2017, Decision and Order extended preliminary injunctive relief to "all members of the putative class." (Dkt. 56 at 65). However, after a decision on class certification, "the class is no longer putative: having been subjected to a legal decision, the class is either extant or not, and once a class is rendered nonexistent, then no members of that nonexistent class may reasonably rely on
omitted). There, the proposed class consisted of"all married and divorced men in the State of Illinois." !d. at 514. That proposed class is far broader and more imprecise than the proposed class in this case.
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the filed action to protect their rights." Giovanniello v. ALM Media, LLC, No. 3:09cv1409
(JBA), 2010 WL 3528649, at *5 (D. Conn. Sept. 3, 2010), aff'd, 660 F.3d 587 (2d Cir.
2011), vacated and remanded, 568 U.S. 801 (2012), and aff'd, 726 F.3d 106 (2d Cir.
2013).2 Similarly, once this Court issues its decision on the motion to certify the class, the
putative class will no longer exist and the members of the once-putative class will not be
able to rely on the November 17, 2017, Decision and Order to protect their rights.3
Therefore, the fact that reliefhas flowed from this Court's Decision and Order is not a basis
for denying class certification or limiting certification to individuals presently detained.
However, the Court will exercise its inherent power to modify the definition of the
proposed subclass. See Ruzhinskaya v. Healthport Techs., LLC, 311 F.R.D. 87, 108
(S.D.N.Y. 2015); Fed. R. Civ. P. 23(c)(4). At oral argument, Petitioners agreed to the
Court's proposed alteration of the class definitions that partially addresses Respondents'
concerns. The proposed subclass will be modified as follows:
Proposed subclass: All arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and
2 Although the Supreme Court vacated the judgment in Giovanniello in light of a more recent Supreme Court decision, on remand to the United States Court of Appeals for the Second Circuit, that court affirmed the District of Connecticut's decision and noted its agreement with the district court's reasoning with respect to what becomes of a putative class, post-decision on a motion to certify. Giovanniello v. ALM Media, LLC, 726 F.3d 106, 117 (2d Cir. 2013).
3 The Court will exercise its inherent authority to modify the preliminary injunction so that it applies, after certification, to the certified class and subclass. See Museum Boutique Intercontinental, Ltd. v. Picasso, 880 F. Supp. 153, 161 (S.D.N.Y. 1995) ("In this Circuit, when modifying or vacating a preliminary injunction, a court is charged with the exercise of the same discretion it exercised in granting or denying injunctive relief in the first place.... Thus, a district court may modify or vacate a preliminary injunction when, based on principles of equity, the modification is necessary to preserve the status quo.").
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have been or will be detained for more than six months without a bond hearing before an immigration judge. Modified subclass: All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge. The Court concludes that this change will ensure that the bond hearing requirement applies only to those individuals (both current and future detainees) who have been detained for more than six months, and therefore partially addresses Respondents' objection to the inclusion of future class members. That limitation is appropriate because, as explained in the November 17, 2017, Decision and Order, only those individuals who have been detained, pursuant to 8 U.S.C. § 1225(b), for more than six months are entitled to a bond hearing. (Dkt. 56 at 30). B. Numerosity "For a court to certify a class, Rule 23(a) requires a finding that the numerosity of injured persons makes joinder of all class members 'impracticable."' Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 70 (E.D.N.Y. 2000) (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993)). "Impracticability does not mean impossibility, but rather difficulty or inconvenience." Primavera Familienstiftung v. Askin, 178 F.R.D. 405, 409 (S.D.N.Y. 1998). '"There is no magic minimum number that will breathe life into a class, but generally, courts will find a class sufficiently numerous when it comprises forty or more members."' Assifv. Titleserv, Inc., 288 F.R.D. 18, 23 (E.D.N.Y. 2012) (quoting Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001)).
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[T]he numerosity inquiry is not strictly mathematical but must take into account the context of the particular case, in particular whether a class is superior to joinder based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class members. Penn. Pub. Sch. Emps. 'Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir.), as amended (Nov. 12, 2014). Respondents have put forth no argument in their papers with respect to the numerosity requirement, and they made no such assertions at oral argument. Respondents assert in their motion papers, and reiterated before the Court, that they reserve their right to put forth a numerosity argument in the future. (Dkt. 55 at 15 n.2). The Court concludes that Petitioners have demonstrated sufficient numerosity. In their motion to certify, Petitioners identify at least 20 asylum-seekers who received form denials following their parole requests, and who have been detained for six months or more. (See Dkt. 19-6 (5 detainees); Dkt. 19-7 (2 detainees); Dkt. 19-8 (3 detainees); Dkt. 19-9 (10 detainees); but see Dkt. 19-1 at 8 (noting that at least 25 putative class members were identified)). In their reply papers in support of the motion for a preliminary injunction, Petitioners identify "28 current members of the putative class," 22 of whom are also members of the proposed subclass. (Dkt. 51-1 at 2). Although Petitioners have not established an exact number of 40 or more class or subclass members, numerosity does not rise and fall merely by the laws ofaddition. See Robidoux, 987 F.2d at 936 ("Determination of practicability depends on all the circumstances surrounding a case, not on mere numbers.").
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Between May 2016 and April 2017, the number of detainees held at the Buffalo Federal Detention Facility fluctuated between 519 and 620. (Dkt. 19-3 at 2, 8). Furthermore, in July 20 17, about 65 detainees arrived, many of whom are believed to be asylum-seekers. (Dkt. 19-5). "The fluid composition of a prison population is particularly well-suited for class status, because, although the identity of the individuals involved may change, the nature of the wrong and the basic parameters of the group affected remain constant." Dean v. Coughlin, 107 F.R.D. 331, 332-33 (S.D.N.Y. 1985). "Class actions therefore generally tend to be the norm in actions such as this." Clarkson v. Coughlin, 783 F. Supp. 789, 797 (S.D.N.Y. 1992). Although the proposed class members in this case are not prisoners, their situation is analogous to that of prison detainees.
Furthermore, "the Second Circuit has relaxed the numerosity requirement where the putative class seeks injunctive and declaratory relief pursuant to Rule 23(b)(2)." Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (citing Robidoux, 987 F.2d at 935-36); see Bruce v. Christian, 113 F.R.D. 554, 557 (S.D.N.Y. 1986) (determining that numerosity was satisfied in an action involving "present and future tenants of the New York City Housing Authority," even though only 16 class members were identified because of "the fluid composition of the public housing population"). As the Fifth Circuit has succinctly stated, "[s]mailer classes are less objectionable where ... the plaintiff is seeking injunctive relief on behalf of future class members as well as past and present members." Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975); see Penn. Pub. Sch. Emps. 'Ret. Sys., 772 F.3d at 120 (noting this factor as a proper consideration when reviewing numerosity). Moreover, as here, "the ability of any one individual member of the class or the subclass
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to maintain an individual suit will necessarily be limited by the simple reality that they are being detained" as part of the immigration process. V W by and through Williams v. Conway, 236 F. Supp. 3d 554, 574 (N.D.N.Y. 2017).
Therefore, the Court is satisfied that Petitioners have demonstrated the impracticality ofjoinder as it relates to the proposed class and subclass.
C. Commonality Rule 23(a)(2) requires a showing of"questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). That requirement is satisfied where even a single issue oflaw or fact is common to the class, and where a classwide proceeding is capable of "generat[ing] common answers apt to drive the resolution of the litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011). "The claims for relief need not be identical for them to be common; rather, Rule 23(a)(2) simply requires that there be issues whose resolution will affect all or a significant number of the putative class members." Johnson v. Nextel Commc 'ns Inc., 780 F.3d 128, 137 (2d Cir. 2015). According to Petitioners, resolution of the legal implications of the ICE Directive would resolve the central issue of the proposed class, and a decision regarding the interpretation of 8 U.S.C. § 1225(b) and the legality of the prolonged detentions would resolve the claims ofall members ofthe proposed subclass. (Dkt. 19-1 at 16). Respondents disagree and contend that Petitioners cannot establish common questions of law because no alien has a right to parole (Dkt. 55 at 20), and because bond hearings are not required for arriving aliens detained under§ 1225(b)(2)(A) (id. at 21). Respondents misunderstand the request for relief. The relief requested by Petitioners in this litigation is not the ultimate
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release on parole or bond; rather, as the Court explained in its November 17, 2017, Decision

and Order, Petitioners seek compliance with certain procedural safeguards when

adjudicating parole and bond determinations. (Dkt. 56 at 46-47). Those same procedural

safeguards are sought on behalf of all asylum-seekers.

Respondents also contend that there is no commonality with respect to Petitioners'

parole claims because the members of the proposed class have no statutory or regulatory

basis for the relief they seek. (Dkt. 55 at 20). This Court has also rejected that argument

pursuant to the Accardi doctrine. (Dkt. 56 at 63); United States ex rei. Accardi v.

Shaughnessy, 347 U.S. 260 (1954).

Next, Respondents contend that Petitioners' request to certify the class fails because

the claims require individualized factual determinations and Petitioners cannot establish

that common facts apply to each purported class member. (Dkt. 55 at 21-22). Respondents

are incorrect in asserting that Petitioners do not demonstrate that common questions will

"generate common answers apt to drive resolution of the litigation." Wal-Mart Stores,

Inc., 564 U.S. at 350. In fact, this Court's conclusion that the Buffalo Federal Detention

Facility is violating the ICE Directive would resolve the parole claims of all members of

the proposed class regardless of the fact that proposed class members allege violations of

various provisions of the Directive. The same is true for the bond claims ofthe prolonged-

detention subclass. The conclusion that the Buffalo Federal Detention Facility is failing to

provide required bond hearings would resolve the claims of those individuals.

Accordingly, this Court concludes that Petitioners satisfy the commonality requirement of

Rule 23(a)(2).

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D. Typicality Rule 23(a) also requires a showing that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed R. Civ. P. 23(a)(3). That requirement is satisfied where "it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented[.]" Robidoux, 987 F.2d at 936-37; see also Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 597 (2d Cir. 1986) (typicality requirement satisfied where evidence indicated that employer discriminated "in the same general fashion" against class representatives and other members of class). "[M]inor variations in the fact patterns underlying individual claims" do not vitiate typicality. Robidoux, 987 F.2d at 937. In V. W., the court found that the typicality requirement was satisfied because the claims of the class representatives and the members of the class and subclass were "based on the common application of certain challenged policies." 236 F. Supp. 3d at 576 (citing Sykes v. Mel Harris and Assocs., LLC, 285 F.R.D. 279, 287 (S.D.N.Y. 2012)). Petitioners argue that Barrios Ramos shares claims with the class and subclass that are based on Respondents' failure to follow the ICE Directive and failure to provide members of the proposed subclass with bond hearings after more than six months of detention. (Dkt. 19-1 at 17). Respondents contend that the typicality requirement is not met because Petitioners cannot demonstrate that "each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove []liability." Easterling v. Conn. Dept. ofCorr., 265 F.R.D. 45, 52 (D. Conn. 2010); (Dkt. 55 at 23). As they argue with respect to commonality, Respondents contend that the
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typicality requirement is not satisfied because there are factual variations between the individual cases. However, as previously noted, "minor variations in the fact patterns underlying individual claims" are not enough to negate typicality. Robidoux, 987 F.2d at 93 7. Furthermore, as discussed above, Respondents mischaracterize Petitioners' request for relief as seeking release on parole or bond.
Petitioners are correct that the claims of Barrios Ramos and the members of the proposed class and subclass arise out of Respondents' failure to follow the dictates of the ICE Directive and the implicit bond hearing requirement in 8 U.S.C. § 1225(b). The Court finds that Petitioners' claims satisfy the typicality requirement.
E. Adequacy of Representation "Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members." Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). Respondents argue that Barrios Ramos is not an adequate named representative because he has already been released on parole and his immigration proceeding has been transferred to another district. (See Dkt. 55 at 16-18). According to Respondents, Barrios Ramos will be unable to vigorously pursue the class claims because his claims have been mooted and he is no longer part of the class he seeks to represent. (!d. at 18). As discussed in the November 17, 2017, Decision and Order, Barrios Ramos's claims are not moot because they fall within the voluntary cessation exception to the mootness doctrine, and, even if his individual claims were moot, that would not adversely affect the class action claims or Barrios Ramos's capacity to
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continue litigating the class claims on behalf of the proposed class and subclass. (Dkt. 56 at 30-41); see Monaco v. Stone, 187 F.R.D. 50, 60 (E.D.N.Y. 1999) (applying the "inherently transitory" exception and stating that "plaintiff ... may still act as the named representative for the proposed plaintiff class despite the loss of his individual claims[, because a] named plaintiff may still litigate a class action despite the loss of [his or her] personal stake if the claims are 'capable of repetition, yet evading review."' (quoting US. Parole Comm 'n v. Geraghty, 445 U.S. 388, 398 (1980))).
At oral argument on this motion, Respondents argued that Barrios Ramos is not an adequate representative because he voluntarily removed himself from the proposed class and subclass by relocating to Miami, Florida, after his release on parole. According to Respondents, the likelihood that Barrios Ramos would be redetained and returned to the jurisdiction of the Buffalo Federal Detention Facility is exceedingly small, making him an inappropriate class representative. Petitioners responded that, when individuals are released to parole, the parole decision is based, in part, on the fact that an individual has a support system to both ensure that the asylum-seeker will attend future proceedings and satisfy ICE that the individual is not a flight risk. Indeed, Barrios Ramos asserts in his most recent declaration that he is currently living in Miami with family members. (Dkt. 61 at 2).
At the oral argument, the Court asked Respondents to submit supplemental briefing addressing where individuals taken into ICE custody are housed. Respondents have submitted a status report that includes ICE Policy 11022.1, Detainee Transfers (Jan. 4, 2012) (the "Transfer Policy"). (Dkt. 63-1 at 3-16). Respondents contend that there is
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nothing in the Transfer Policy that would counsel ICE to transfer Barrios Ramos, if the need for transfer arose, to the Buffalo Federal Detention Facility, and that it is therefore "highly unlikely that ... ICE would transfer him back" to that facility. (Dkt. 63 at 2).
Although it might be unlikely that Barrios Ramos will be transferred to the Buffalo Federal Detention Facility in the future, the Transfer Policy gives ICE significant discretion in that regard. It provides that "a transfer may be deemed necessary" "[t]o transfer to a more appropriate detention facility based on the detainee's individual circumstances and risk factors." ICE Policy 11022.1, ~ 5.2(3)(e). Furthermore, were the Court to conclude that Barrios Ramos is not an appropriate class representative, it could prove nearly impossible to find a satisfactory class representative. Detainees at the Buffalo Federal Detention Facility who fall within the proposed class and subclass definitions are unlikely to have family or a support system in the Western District ofNew York. In light of the fact that Respondents can elect to release a detainee to parole at any given time, it would be impracticable to require the class representative to remain in the Western District of New York, or somewhere nearby, after release, and would give Respondents significant opportunity to impede litigation of this matter.
Respondents also argue that Barrios Ramos, now that he has been released on parole and is living in Miami, does not have a vigorous interest in this litigation because he would not benefit from a resolution of this case in favor of the proposed class and subclass. However, in his most recent declaration, Barrios Ramos affirms his interest in pursuing this litigation. (Dkt. 61). He states that he "derive[s] a strong sense of purpose from being a class representative in this case" and "want[s] to help everyone in [his] situation who is
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suffering because they do not have a fair opportunity for release on parole or bond." (!d. at ~ 4). Barrios Ramos was imprisoned in Cuba as a result of his human rights activism, and he asserts that this litigation "is a continuation of [his] struggle for human rights." (!d.). The Court is satisfied that Barrios Ramos "will adequately protect the interests of the class." Sosna v. Iowa, 419 U.S. 393, 403 (1975).
The Court also concludes that counsel in this case are capable of adequately representing the class.4 Respondents have not offered any reason why Petitioners' counsel are not adequate to represent the class, nor does it appear that they could. Petitioners' counsel are experienced and competent. Indeed, Petitioners' counsel are familiar with and experienced in litigating federal civil rights cases in general, as well as the immigration issues specific to this case. (See Dkt. 19-2 at 1-2). Petitioners' counsel have also clearly been in frequent communication with the detainees at the Buffalo Federal Detention Facility (see Dkt. 19-6; Dkt. 19-7; Dkt. 19-8; Dkt. 19-9; see also Dkt. 38; Dkt. 51-1), which demonstrates substantial investigative work in developing this case. Furthermore, the Court has had the benefit of reviewing counsel's written and oral arguments thus far, and finds that counsel have, without question, demonstrated qualified and experienced legal representation in this matter.
4 In the past, this analysis occurred under Rule 23(a)(4). However, as a result of the 2003 amendments to the Federal Rules of Civil Procedure, the issue of the adequacy of class counsel is now guided by Rule 23(g). Regardless, the analysis remains the same. Kulig v. Midland Funding, LLC, No. 13-CV-4175 (PKC), 2014 WL 5017817, at *2 (S.D.N.Y. Sept. 26, 2014) (citations omitted); accord, e.g., City of Westland Police & Fire Ret. Sys. v. MetLife, Inc., No. 12-CV-0256 (LAK)(AJP), 2017 WL 3608298, at *7 (S.D.N.Y. Aug. 22, 2017).
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Therefore, the Court concludes that Petitioners have sufficiently demonstrated adequacy of representation and adequacy of counsel on the merits of their motion to certify. II. Rule 23(b)(2) Class Certification Rules
"A class action may be maintained if Rule 23(a) is satisfied and if ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). "The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted-the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Wal-Mart Stores, Inc., 564 U.S. at 360 (internal quotation marks and citation omitted). "Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of the types of actions authorized by Rule 23(b)(2). Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
Petitioners allege that Respondents have systematically violated the ICE Directive by failing to provide the required process, and have subjected all members of the proposed subclass to an unlawfully prolonged detention of more than six months without a bond hearing. Respondents argue that parole adjudications are "fact-specific inquiries," and that the denial of parole could rest on a number of different grounds. (Dkt. 55 at 28). Respondents also contend that the Court would be forced to "weed out" subclass members who have extended their detention during the pendency of this action as a litigation strategy, which would entail various individual adjudications. (!d.).
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The Court disagrees with Respondents' position. Although an evaluation of each proposed class member's unique situation is necessary when adjudicating detention decisions, that is not the relief sought in this proceeding. Petitioners have demonstrated deficiencies in the procedures employed by Respondents' parole system that "stem from central and systemic failures" and apply across-the-board to each proposed class member. See Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) ("Defendants further claim that due to the unique circumstances of each plaintiffs experience with the child welfare system, the defendants have not acted on grounds generally applicable to the class. We disagree. Insofar as the deficiencies of the child welfare system stem from central and systemic failures, the district court did not abuse its discretion in certifying a 23(b)(2) class at this stage ofthe litigation."); MG. v. NY. City Dep 't ofEduc., 162 F. Supp. 3d 216, 242 (S.D.N.Y. 2016) ("Systemic violations like those asserted here present a classic case for Rule 23(b)(2) certification."); Briggs v. Bremby, No. 12-CV-324 (VLB), 2013 WL 1987237, at *5 (D. Conn. May 13, 2013) ("Courts have long recognized that in cases, like the present one, 'alleging systemic failure of governmental bodies to properly fulfill statutory requirements, have been held to be appropriate for class certification under Rule 23(b)(2)."' (quoting Brooklyn Center for Indep. ofthe Disabledv. Bloomberg, 287 F.R.D. 240, 250 (S.D.N.Y. 2012))).
Accordingly, injunctive relief requiring Respondents to conform to the strictures of the ICE Directive will be applicable to all proposed class members. Again, the Court is not ordering the release of any particular detainee, which would certainly require a factspecific inquiry. By contrast, the procedures set forth within the ICE Directive apply
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equally to all proposed class members and injunctive relief ordering compliance with those procedures would bring all proposed class members relief from the systemic process violations inflicted by Respondents.
Similarly, ordering individualized bond hearings for detainees who have been confined for longer than six months would also apply across-the-board to all proposed subclass members. See Rodriguez v. Hayes, 591 F.3d 1105, 1126 (9th Cir. 2010) ("The particular statutes controlling class members' detention may impact the viability of their individual claims for relief, but do not alter the fact that relief from a single practice is requested by all class members."). Respondents have cited to Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) and Viknesrajah v. Koson, No. 09-CV-6442 (CJS), 2011 WL 147901, at *6 (W.D.N.Y. Jan. 18, 2011) in arguing that multiple individual adjudications would be necessary to determine whether each individual subclass member intentionally prolonged his or her detention as a litigation strategy. (Dkt. 55 at 28). Those cases are inapposite; they arise out of claims sounding in substantive due process. As the Court held in its November 17, 2017, Decision and Order (Dkt. 56), the availability of an implicit bond hearing requirement is based upon the constitutional avoidance doctrine, which is a canon ofstatutory construction that enables a litigant to vindicate his or her statutory rights; it does not create constitutional rights. See Clark v. Martinez, 543 U.S. 371, 382 (2005). In any event, the implicit bond hearing requirement is a time-restricted process right, arising only after the passage of six months' time, and requires no particular substantive outcome at the hearing before the immigration judge. In other words, the proposed subclass members have no responsibility to justify the availability of the bond hearing
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itself; once the six-month time limit has expired, it becomes Respondents' statutory obligation to hold a hearing and carry the burden of demonstrating-by clear and convincing evidence-why continued detention is warranted.
Therefore, the Court finds that the class claims satisfy the requirements of Rule 23(b)(2).
CONCLUSION IT IS HEREBY ORDERED that Petitioners' motion to certify the class (Dkt. 19) is granted, and the class and subclass are defined as follows: Class: All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole. Subclass: All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge. FURTHER, that, pursuant to Fed. R. Civ. P. 23(c)(l)(B), the New York Civil Liberties Foundation and the International Refugee Assistance Project are hereby appointed class counsel; FURTHER, that the November 17, 20 17, Decision and Order is hereby modified insofar as the preliminary injunction now applies to members of the certified class and subclass, rather than members of the putative class.
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Case 1:17-cv-00721-EAW Document 66 Filed 12/19/17 Page 24 of 24 SO ORDERED. Dated: December 19, 2017 Rochester, New York
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 Case 1:17-cv-00721-EAW Document 83 Filed 02/09/18 Page 1 of 30

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all other similarly situated,
Petitioners,
V.

DECISION AND ORDER
1:17-CV-0721 EAW

KIRSTJEN NIELSEN,1 in her official capacity as Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official Capacity as Acting Administrator of the Buffalo Federal Detention Facility; and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

PROCEDURAL BACKGROUND
Petitioners Hanad Abdi ("Abdi") and Johan Barrios Ramos ("Barrios Ramos") brought this action seeking relief on behalf of themselves individually and on behalf of a proposed class of similarly situated asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York. (Dkt. 17). On November 17, 2017, the Court issued a Decision and Order denying Respondents ' motion to dismiss and granting Petitioners' motion for a preliminary injunction (the "November 17, 2017, Decision"). (Dkt. 56). The Court ordered Respondents to immediately adjudicate or readjudicate the parole

Kirstjen Nielsen is the current United States Secretary of Homeland Security. Accordingly, she is substituted as a respondent in this action. See Fed. R. Civ. P. 25(d).
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applications of all members of the putative class of asylum-seekers detained at the Buffalo Federal Detention Facility in conformance with their legal obligations, including their obligations under ICE Directive No. 11002.1: Parole ofArriving Aliens Found to Have a Credible Fear ofPersecution or Torture (Dec. 8, 2009) (the "ICE Directive"). (!d. at 65). The Court also ordered Respondents to provide individualized bond hearings to members of the putative subclass who have been detained for six months or more, as required by 8 U.S.C. § 1225(b). (!d. at 66). Familiarity with the November 17, 2017, Decision is presumed for purposes of this Decision and Order.
Thereafter, on December 19, 2017, the Court issued a Decision and Order granting Petitioners' motion for class certification. (Dkt. 66). Specifically, the Court defined the certified class as follows: "All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole." (!d. at 23). The Court also defined the certified subclass as follows: "All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge." (!d.).
On January 8, 2018, Petitioners filed a motion to clarify the preliminary injunction (Dkt. 67), and a motion to expedite consideration of their motion to clarify (Dkt. 68). The Court granted, in part, Petitioners' motion to expedite, setting a briefing schedule for response and reply papers as well as a motion hearing date of January 26, 2018. (Dkt. 73). On January 11, 2018, Respondents filed an interlocutory appeal from this Court's November 17, 2017, Decision. (Dkt. 74). Respondents have since submitted response
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papers in opposition to Petitioners' motion to clarify (Dkt. 76), and Petitioners have submitted reply papers (Dkt. 78). On January 26, 2018, the Court held argument on the motion to clarify and reserved decision.
During oral argument, Respondents contended that the Court should not decide the motion without reviewing transcripts of the bond proceedings held before the Immigration Judges ("IJ"), which Respondents had neither submitted nor prepared in connection with this motion. The Court granted Respondents an opportunity to file a supplemental submission containing these transcripts. The Court has since received and reviewed the transcripts of the bond hearings of five subclass members.
Before turning to the substantive issues raised by Petitioners' motion for clarification, the Court emphasizes the narrow scope ofPetitioners' motion. Petitioners do not argue that any particular subclass member is entitled to alternative conditions ofrelease or a reduction in the amount of bond. The sole question put to this Court is whether the November 17, 2017, Decision requires an IJ conducting a Lora-style bond hearing to consider alternative conditions of release and a detainee's ability to pay in setting bond after determining that release of the subclass member is appropriate. The Court answers that question in the affirmative, and, for the following reasons, the motion to clarify the preliminary injunction (Dkt. 67) is granted.
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DISCUSSION I. Jurisdiction Pending Interlocutory Appeal
The Court first addresses its jurisdiction to entertain Petitioners' motion in view of Respondents' pending appeal. "Generally, the filing of an effective notice ofappeal divests the court ofjurisdiction over the case." Exp.-Imp. Bank ofRepublic ofChina v. Cent. Bank ofLiberia, No. 1:15-CV-09565 (ALC), 2017 WL 6398726, at *2 (S.D.N.Y. Dec. 13, 2017) (citing Negron v. United States, 394 F. App'x 788, 792 (2d Cir. 2010)). "[O]nce a notice of appeal has been filed, a district court ... may not 'adjudicate substantial rights directly involved in the appeal.'" Int 'I Ass 'n ofMachinists & Aerospace Workers, AFL-CIO v. E. Air Lines, Inc., 847 F.2d 1014, 1017 (2d Cir. 1988) (quoting Newton v. Consol. Gas Co., 258 U.S. 165, 177 (1922)). However, "[a] trial court has a long established right to make orders appropriate to preserve the status quo while a case is pending on appeal. This right is codified by Fed. R. Civ. P. 62(c)." Barringer v. Griffes, 810 F. Supp. 119, 120 (D. Vt. 1992) (citation and footnote omitted); see Cullman Ventures, Inc. v. Columbian Art Works, Inc., No. 89 CIV. 312(KC), 1989 WL 94902, at *3 (S.D.N.Y. July 28, 1989) ("[T]his Court has jurisdiction, notwithstanding the Notice of Appeal, to supervise the enforcement of its injunction and to preserve the status quo pending appeal."); 11 Charles A. Wright, et al., Federal Practice & Procedure§ 2904, at 675 (3d ed. 2012) (stating that Rule 62(c) "codifies the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness ofthe eventual judgment").
Rule 62(c) ofthe Federal Rules of Civil Procedure provides that "[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies
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an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights." "The district court's power to modify an injunction to preserve the status quo necessarily includes the lesser power to clarify the injunction to supervise compliance." Wash. Metro. Area Transit Comm 'n v. Reliable Limousine Serv., LLC, 985 F. Supp. 2d 23, 29 (D.D.C. 2013); see Meinhold v. US. Dep 't ofDef, 34 F.3d 1469, 1480 n.14 (9th Cir. 1994)("[The defendant] also contends that the district court lacked jurisdiction to issue its amended order, which broadened the scope of injunctive relief, because an appeal had already been taken from the original order. As the district court issued the amended order to clarify its original injunction and to supervise compliance in the wake of [the plaintiff]'s motion for contempt, it did not lack jurisdiction.").
Although the parties' submissions do not discuss the effect of Respondents' interlocutory appeal on this Court's jurisdiction to entertain Petitioners' motion to clarify, the Court finds that it has jurisdiction to resolve Petitioners' motion pursuant to its intrinsic authority to supervise compliance with its original order, and "to ensure the effectiveness of the eventual judgment." Wright, et al., § 2904, at 675; see Wash. Metro. Area Transit Comm 'n, 985 F. Supp. 2d at 29; Cullman Ventures, Inc., 1989 WL 94902, at *3; see also Does 1-10 v. Univ. of Wash., No. C16-1212JLR, 2018 WL 453451, at *2 (W.D. Wash. Jan. 17, 2018) (applying Rule 62(c) to a motion to clarify). As will be discussed below, Petitioners' motion to clarify does not raise new claims, but rather seeks clarification of the scope and effect of the Court's November 17, 2017, Decision. (Dkt. 67). Whether the Court's original order requires an IJ to consider the financial circumstances of each
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subclass member or alternatives to detention so as to properly effectuate the injunctive relief granted therein is a question fully within this Court's jurisdiction to answer in order "to supervise the enforcement of its injunction and to preserve the status quo pending appeal." Cullman Ventures, Inc., 1989 WL 94902, at *3; see also Sys. Fed'n No. 91, Ry. Emp. Dep't, AFL-C/0 v. Wright, 364 U.S. 642,647 (1961) ("There is also no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief."); Meinhold, 34 F.3d at 1480 n.14 (determining that the district court "did not lack jurisdiction" to issue an "amended order to clarify its original injunction and to supervise compliance").
Furthermore, a decision on this clarification motion will not "adjudicate substantial rights directly involved in the appeal." Newton, 258 U.S. at 177. The Court finds that an IJ's consideration of the subclass members' financial circumstances and alternatives to detention is imperative to the effective enforcement of the injunctive relief set forth in its November 17, 2017, Decision. Indeed, permitting the calculation of bond without requiring consideration of the detainee's ability to pay effectively erodes any legitimate governmental interests justifying continued detention that are set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), and Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). In light of Petitioners' submissions demonstrating that IJs have not taken these factors into account
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in several of the Lora-style bond hearings conducted after this Court's November 17, 2017, Decision (see Dkt. 67-3), this Court is obligated to clarify what it had assumed went part and parcel with its original order.
Therefore, the Court has jurisdiction over Petitioners' motion to clarify notwithstanding Respondents' interlocutory appeal of the November 17, 2017, Decision, pursuant to its inherent authority to supervise compliance with the injunctive relief granted therein. II. The Issues Raised in Petitioners' Motion are Related to the Claims Asserted in
the Amended Petition and the Motion for Preliminary Injunction and are Meritorious Petitioners contend that, although it is not explicitly stated in the Court's November 17, 2017, Decision, the preliminary injunction requires Us, in setting bond, to consider alternative conditions of release as well as the detainee's ability to pay once the IJ has determined that release is appropriate. Petitioners ask the Court to clarify as much. (Dkt. 67-1 at 12). Respondents argue that Petitioners are not asking for clarification of the preliminary injunction, but rather are seeking entirely new relief based on facts that occurred only after this Court issued the preliminary injunction. (Dkt. 76 at 9). According to Respondents, Petitioners have raised new claims and facts that are beyond the scope of the amended petition, are outside the requirements of the preliminary injunction, and are unrelated to the requirements that the Second Circuit imposed in Lora, the case on which this Court largely based the bond portion of its preliminary injunction decision. (!d. at 10). Respondents further argue that the requested relief would not have been available to Petitioners even if raised in their motion for a preliminary injunction, because there is no
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relationship between the injury claimed here and the conduct that gave rise to the petition. (!d. at 10-11 ).
Respondents also argue, in the alternative, that Petitioners' motion for clarification fails on the merits because there is no requirement that an IJ consider an asylum-seeker's ability to pay or alternatives to detention in setting bail. (!d. at 15-17). Respondents take the position that an IJ may consider an alien's ability to pay, as well as alternative conditions of release, but that there is no Supreme Court, Second Circuit, or Board of Immigration Appeals ("BIA") precedent that requires the IJ to do so. (!d. at 15). Because the Court's resolution of that argument is inextricably linked with Respondents' argument that the relief requested in the motion for clarification is outside the scope of the preliminary injunction and the amended petition, the Court will address those arguments together.
In its November 17, 2017, Decision, the Court ordered Respondents to provide members of the class who have been detained for six months or more with individualized bond hearings, in conformance with Lora. (Dkt. 56 at 66). The Court found persuasive the reasoning of the majority of the courts in this Circuit, as well as the reasoning articulated by the Ninth Circuit in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ("Rodriguez IF'), and Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) ("Rodriguez IIF'). (!d. at 30). That case law recognizes that prolonged detention is permissible only when it serves legitimate governmental interests. The failure to consider alternative conditions of release and ability to pay undermines the connection between the bond amount and the legitimate governmental interests that might weigh against release.
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Accordingly, for the following reasons, the Court now concludes that implicit in its November 17, 2017, Decision is a requirement that once an IJ has determined that release is appropriate and bond should be set, the IJ must consider the detainee's ability to pay, as well as alternative conditions of release, in setting the amount of bond. Thus, Petitioners' motion to clarify does not raise new claims and facts beyond the scope of the amended petition.
In Lora, the Second Circuit held that, "in order to avoid serious constitutional concerns raised by indefinite detention, an immigrant detained pursuant to [8 U.S.C. § 1226(c)] must be afforded a bail hearing before an immigration judge within six months of his or her detention." 804 F.3d at 616. The court quoted Justice Kennedy's concurrence in Demore v. Kim, 538 U.S. 510, 532-33 (2003), which observed that, "[w]ere there to be an unreasonable delay by the [government] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons." Lora, 804 F.3d at 613 (alteration in original). After Lora, the majority of district courts in this Circuit, including this Court, determined that prolonged detention of an asylum-seeker held under 8 U.S.C. § 1225(b) raises similar concerns and therefore interpreted Lora to extend to cases pertaining to the detention of asylum-seekers held under that statute. (See Dkt. 56 at 27-28 (gathering cases)).
The court in Lora did not address the question of whether an IJ, in setting bond, must consider a detainee's ability to pay, arid neither did most of the district courts that subsequently relied on Lora. However, a district judge in the Southern District of New
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York answered that question in a ruling from the bench, interpreting Lora to require that "an immigration judge ... consider a detainee's financial circumstances in setting bail." Transcript of Oral Argument at 8, Celestin v. Decker, 17 Civ. 2419 (S.D.N.Y. June 14, 20 17). The Celestin court reasoned that "setting bond in an amount a person cannot pay would essentially be a denial of bond," and "[d]enial of bond not due to evidence that the immigrant poses a risk of flight or a risk of danger to the community contravenes the mandates and the logic of Lora. ..." !d.; see also Leslie v. Holder, 865 F. Supp. 2d 627, 630 n.1 (M.D. Pa. 2012) (stating imposition ofbail which the agency knows cannot be met is tantamount to detention). The Celestin court further noted that the "failure to consider [ability to pay] creates a significant risk that detainees will be deprived of liberty solely based on indigence," Transcript of Oral Argument at 8, Celestin, 17 Civ. 2419, which is prohibited in the criminal context, see Williams v. Illinois, 399 U.S. 235, 244 (1970) (holding "that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status"); see also Bearden v. Georgia, 461 U.S. 660, 668 (1983) (holding it is "fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available" when the defendant cannot pay his fine or restitution "through no fault of his own"); Pugh v. Rainwater, 572 F.2d 1053, 1058 (5th Cir. 1978) (holding detention of an indigent "for inability to post money bail" is impermissible if the individual's "appearance at trial could reasonably be assured by one of the alternate forms of release"); Coleman v. Hennessy, No. 17-CV-06503-EMC, 2018 WL 541091, at *1 (N.D. Cal. Jan. 5, 2018)
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(holding state court erred in "failing to inquire into [the petitioner's] ability to pay the $200,000 bond" or other alternatives to pretrial incarceration); United States v. Polouizzi, 697 F. Supp. 2d 381, 388 (E.D.N.Y. 2010) ("The Supreme Court has defined 'excessive bail' under the Eighth Amendment as 'bail set at a figure higher than an amount reasonably calculated to fulfill [its] purpose."' (quoting Stack v. Boyle, 342 U.S. 1 (1951 )));Lyman v. City of Albany, 536 F. Supp. 2d 242, 251 (N.D.N.Y. 2008) (bail not excessive where amount was set at $400 and the plaintiff was able to secure release on bail on day of arrest).
In reaching its conclusion, the court in Celestin cited the Ninth Circuit's decision in Rodriguez III. Transcript of Oral Argument at 11, Celestin, 17 Civ. 2419. In that case, the Ninth Circuit considered whether the district court had erroneously held-in its order entering a permanent injunction-that immigration judges must consider alternatives to detention in setting the amount of bond. Rodriguez III, 804 F.2d at 1087. The court affirmed the permanent injunction and stated that the immigration judge "must decide whether any restrictions short of detention would further the government's interest in continued detention." !d. at 1088.
More recently, in Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017), decided in October 2017, the government appealed the district court's grant of a preliminary injunction against the government's policy of failing to consider a detainee's financial circumstances in setting the amount of a bond or non-monetary alternative conditions of release. !d. at 982. The Ninth Circuit affirmed, explaining that the detainees had been determined to be "neither dangerous nor so great a flight risk as to require detention without bond," and held that, under those circumstances, "consideration of the detainees' financial
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circumstances, as well as ofpossible alternative release conditions," is "necessary to ensure
that the conditions of their release will be reasonably related to the governmental interest
in ensuring their appearance at future hearings." !d. at 990-91. The court acknowledged
the government's "legitimate interests in protecting the public and in ensuring that
noncitizens in removal proceedings appear for hearings" but cautioned that "any detention
incidental to removal must 'bear[] [a] reasonable relation to [its] purpose."' !d. at 990
(quoting Zadvydas, 533 U.S. at 690). The court then made the following observation:
Since the government's purpose in conditioning release on the posting of a bond in a certain amount is "to provide enough incentive" for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person's appearance.
!d. at 991.
Respondents argue that Hernandez is distinguishable because that case involved a
class of aliens detained under§ 1226(a).2 (See Dkt. 76 at 16-17 n.6). In Lora, the Second
Circuit interpreted a different statute-§ 1226(c)-to contain an implicit time restriction
of six months, after which an alien detained under that provision is entitled to a bond

2

Section 1226 "regulates the detention of aliens who are facing removal due to past

criminal convictions. Generally, immigration detention is authorized by § 1226(a), which

provides for individualized review of detention decisions. Aliens detained pursuant to

§ 1226(a) may be released on bond or conditional parole while their immigration case is
resolved." Figueroa v. Aviles, No. 14 Civ. 9360(AT)(HBP), 2015 WL 464168, at *1

(S.D.N.Y. Jan. 29, 2015); see Guerra v. Shanahan, 831 F.3d 59, 62 (2d Cir. 2016) ("8

U.S.C. § 1226(a) authorizes the detention of an alien 'pending a decision on whether the

alien is to be removed from the United States'; under this section, ICE may detain an alien

or release him subject to parole or a bond. If ICE elects to detain the alien, the alien may

request a bond hearing before an IJ." (quoting 8 C.F.R. § 1236.1(d)(l))).

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hearing, "in order to avoid the constitutional concerns raised by indefinite detention." Lora, 804 F.3d at 616. Unlike Lora, the holding in Hernandez is based directly on the dictates of due process rather than the constitutional avoidance doctrine. See Hernandez, 872 F.3d at 982 n.4 ("The § 1226(a) claim is presented exclusively in terms of constitutional avoidance, a doctrine which is inapplicable here.").
As this Court noted in its November 17, 2017, Decision, the constitutional rights of the asylum-seekers at issue in the instant matter are limited. (Dkt. 56 at 66); see Landon v. Plasencia, 459 U.S. 21, 32 (1982); Correa v. Thornburgh, 901 F.2d 1166, 1171 n.5 (2d Cir. 1990). However, the Court also determined that because both non-resident arriving aliens and lawful permanent residents ("LPRs") can be detained under § 1225(b), the constitutional avoidance doctrine requires Lora-style bond hearings for aliens detained under § 1225(b) in order to avoid "serious constitutional concerns." (Dkt. 56 at 63 ). Accordingly, Respondents' argument that Hernandez is distinguishable because it addressed a class of aliens detained under § 1226(a) is inconsistent with this Court's determination in its November 17, 20 17, Decision. The same due process concerns implicated by a detainee's prolonged detention under§ 1226(a) are also raised by an LPR's prolonged detention under § 1225(b). See Nguti v. Sessions, 259 F. Supp. 3d 6, 14 (W.D.N.Y. 2017) (applying Lora to § 1226(a) and relying on decisions applying the constitutional avoidance doctrine to extend Lora to detention pursuant to § 1225(b) to "confirm th[e c]ourt's conclusions"), appeal withdrawn, No. 17-2086, 2018 WL 286590 (2d Cir. Jan. 3, 2018); see also Brevi/ v. Jones, No. 17 Civ. 1529 (LTS) (GWG), 2018 WL 514670, at *6 (S.D.N.Y. Jan. 22, 2018) (noting that the government's argument that Lora
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did not apply to § 1226(a) "ignores the Second Circuit's express adoption of the Ninth Circuit's due process analysis in [Rodriguez 11], a case which extended Lora-like procedural protections to§ 1226(c) detainees after doing so for§ 1226(a) detainees"). By extension, in clarifying its original preliminary injunction order, the Court finds that the constitutional avoidance doctrine mandates that the Court construe§ 1225(b) in a similar manner here. In other words, the Court clarifies the November 17, 2017, Decision to "avoid" the due process concerns discussed in Hernandez, which are equally applicable to detentions pursuant to§ 1225(b).
Next, Respondents contend that this Court should not require Us to consider ability to pay and alternative conditions ofrelease because Us have significant discretion in setting bond. They primarily cite to BIA cases to support their position. In Matter ofGuerra, 24 I. & N. Dec. 37, 40 (BIA 2006)-the leading BIA case on this issue-the BIA explained that "[a]n Immigration Judge has broad discretion in deciding the factors that he or she may consider in custody redeterminations." See also 8 C.P.R.§ 1003.19(d) ("The determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or [ICE]."). Those factors "may include any or all ofthe following":
(1) whether the alien has a fixed address in the United States; (2) the alien's length of residence in the United States; (3) the alien's family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien's employment history; (5) the alien's record of appearance in court; (6) the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien's history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise
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escape from authorities; and (9) the alien's manner of entry to the United States. Guerra, 24 I. & N. Dec. at 40. In Guerra, the BIA concluded that it was reasonable for the IJ to deny bond on the basis that evidence of the individual's serious criminal activity, although it had not resulted in a conviction, outweighed other factors. Id. However, read in their entirety, the BIA cases cited by Respondents support the notion that IJs should consider ability to pay and alternative conditions of release in setting bond. Although the BIA certainly has not required IJs to consider ability to pay (see administrative exhaustion section, below), based on its discussion of the factors that IJs should consider, coupled with the Second Circuit's decision in Lora, the Court concludes that it is reasonable to hold that IJs must consider the detainee's financial situation in setting bond. In Guerra, the BIA explained that "Immigration Judges may look to a number of factors in determining whether an alien merits release from bond, as well as the amount of bond that is appropriate." ld. (emphasis added). In Matter ofUrena, 25 I. & N. Dec. 140 (BIA 2009), the BIA explained that the "setting of bond is designed to ensure an alien's presence at proceedings." Id. at 141. Once the detainee has established that he "would not pose a danger to property or persons," the IJ "decide[s] the amount of bond necessary to ensure the [individual's] presence at proceedings" in the future. Jd. at 141-42. Those cases suggest that IJs have significant discretion to determine whether release on bond is appropriate. Once such a determination is made, the IJ's next task is to set bond in an
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amount that is "appropriate" and "necessary" to effectuate the government's interest in deterring flight while protecting the detainee's liberty interests.
Although most of the factors that IJs consider in making bond determinations are discretionary, the Court concludes that once an IJ determines that release of the detainee is appropriate, an IJ must consider ability to pay and alternative conditions of release in setting bond for an individual detained under § 1225(b). Constitutional concerns compel that conclusion. As the Ninth Circuit explained in Hernandez, "[w]hile the temporary detention of non-citizens may sometimes be justified by concerns about public safety or flight risk, the government's discretion to incarcerate non-citizens is always constrained by the requirements of due process: no person may be imprisoned merely on account of his poverty." 872 F.3d at 981. As explained above, the constitutional avoidance doctrine requires the Court to reach the same conclusion in the context of the detention of a noncitizen asylum-seeker pursuant to § 1225(b).
The cases cited by both Petitioners and Respondents make clear that the purpose of bond is to effectuate the government's legitimate purpose of ensuring the detainee's presence at future hearings, and that there must be a connection between the bond amount and that purpose. When a judge fails to consider ability to pay and alternative conditions of release and sets a bond amount plainly outside the reach of an individual's financial resources, such a decision amounts, for all practical purposes, to a denial of bond. The Court rejects Respondents' argument that Petitioners are requesting relief beyond clarification ofthe preliminary injunction. Petitioners have brought to the Court's attention conduct on the part of Respondents that amounts to a denial of bond for reasons estranged
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from the government's interest in mitigating the risk of flight or danger to the community. As the court recognized in Celestin, denial of bond under such circumstances "contravenes the mandates and the logic of Lora." Transcript of Oral Argument at 8, Celestin, 17 Civ. 2419. For the reasons explained above, an IJ' s failure to consider ability to pay and alternative conditions of release in setting bond also raises serious due process concerns.
The Court concludes that a requirement that IJs consider ability to pay and alternative conditions of release in setting the bond amount is implicit in the November 17, 2017, Decision. Because Lora and the Due Process Clause require such considerations, Petitioners' motion for clarification does not raise new claims and facts beyond the scope of the amended petition and the preliminary injunction. II. Petitioners' Motion is not Barred by 8 U.S.C. § 1226(e), and Petitioners are not
Required to Satisfy Administrative Exhaustion Requirements A. Section 1226(e) Does Not Preclude Petitioners' Motion Respondents argue that Petitioners' request for clarification is barred by 8 U.S.C. § 1226(e) because "an immigration judge's bond determination is not subject to judicial review." (Dkt. 76 at 11). Section 1226(e) provides that "[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." "Although 8 U.S.C. § 1226(e) bars judicial review of certain 'discretionary judgment[s],' that section does not deprive the Court of jurisdiction over [a detainee's] constitutional and statutory challenges to his detention." Gordon v. Shanahan, No. 15 CV. 261,2015 WL 1176706, at *2 (S.D.N.Y. Mar. 13, 2015); see Bogle v. DuBois, 236 F. Supp. 3d 820, 822 (S.D.N.Y.
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2017) ("If he were merely disputing the IJ's judgment, judicial review would be barred under 8 U.S.C. § 1226(e), which provides that the Attorney General's detention decisions are not subject to judicial review and may not be set aside by a court.").
Respondents mischaracterize Petitioners' request for relief. Petitioners are not seeking judicial review of the IJs' decisions; rather, Petitioners ask this Court to clarify whether, per the Court's November 17, 2017, Decision, an IJ, once he or she has determined that release on bond is appropriate, must consider the financial circumstances of each subclass member and alternatives to detention in setting the amount of bond. (See Dkt. 67-1 ). In other words, the question is not whether the IJ could or should have considered those factors in setting the amount of bond, but whether the IJ must have done so to properly carry out the Lora-style hearings required by this Court's preliminary injunction. This request does not challenge a "discretionary judgment" encompassed by § 1226(e). Demore, 538 U.S. at 516. Rather, Petitioners are either entitled to these considerations pursuant to this Court's interpretation of the bond hearing requirement implicit in 8 U.S.C. § 1225(b), or they are not. Since the Court premised its November 17, 2017, Decision upon the constitutional avoidance doctrine, Petitioners' current motion to clarify seeks to vindicate these statutorily-derived process rights, and thus falls outside the scope of§ 1226(e).
At oral argument, Respondents' counsel represented that the transcripts of the IJ bond hearings demonstrated that Petitioners had raised the issues of alternative release conditions and ability to pay at the Lora bond hearings, and thus, to the extent the issue was raised, the Court is without jurisdiction to review this application. Petitioners' counsel
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responded that the IJs presiding over the Lora bond hearings did not inquire into these issues, and rejected counsel's attempts to request reconsideration of the bond amount on this ground once the bond amount was set. (See Dkt. 67-4).
As noted above, Respondents have filed transcripts from the Lora-style bond hearings of five subclass members. The Court has reviewed those transcripts and has determined that Petitioners raised the issue of whether the respective subclass members could afford the bond amount at several of these hearings. However, the question of whether that issue was "raised" is wholly different from the question ofwhether the IJ gave it meaningful consideration. In setting the bond amount in each case, the IJ made no mention of the detainee's ability to pay the bond. Accordingly, the Court does not find that the submitted transcripts rebut Petitioners' contention that the IJs did not consider alternative conditions of release or the subclass members' financial circumstances in setting the bond amount.
Therefore, the Court concludes that § 1226(e) does not bar the relief sought by Petitioners' motion to clarify.
B. Petitioners Were Not Required to Exhaust Administrative Remedies Respondents contend that even if§ 1226(e) does not operate as a bar to Petitioners' request for relief, Petitioners are foreclosed from making this motion because they have failed to exhaust their administrative remedies. (Dkt. 76 at 12-15). In reply, Petitioners argue that the doctrine of administrative exhaustion is not applicable to their motion for clarification, and, even if it were, any failure to exhaust administrative remedies should be
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excused because exhaustion would have been futile. (Dkt. 78 at 10-12). The Court agrees with Petitioners in both respects.
1. Petitioners' Request for Clarification is Appropriately Before this Court in the First Instance
Petitioners' reply papers rely upon the recent decision in Enoh v. Sessions, No. 16CV-85(LJV), 2017 WL 2080278 (W.D.N.Y. May 15, 2017), appeal withdrawn, No. 171236, 2017 WL 6947858 (2d Cir. Dec. 7, 2017), in which the district court had previously issued a "conditional order" upon the petitioner's habeas petition requiring "the government to comply with certain conditions, including providing the petitioner with a Lora bond hearing...." !d. at *2. After a bond hearing was held-and the petitioner was denied bond-he returned to federal court, claiming that the IJ had applied the wrong legal standard of proof during the hearing. !d. at *1. Ultimately, the district court reached the merits of the petitioner's claim, concluding that "the IJ failed to apply the clear and convincing standard." !d. at *10. The district court also concluded that the petitioner was not required to exhaust his administrative remedies. Although the petitioner had appealed his denial of release on bond to the BIA, the court recognized that the petitioner's application challenged the government's compliance with the prior conditional writ order, which did not raise any new claim in federal court. !d. at *3. As the district court aptly stated, "if exhaustion or a new petition were required simply to challenge compliance with an order requiring a Lora bond hearing, it would result in the very harm that Lora should prevent: 'prolonged' detention without due process during lengthy and backlogged removal proceedings." !d.; see Argueta Anariba v. Shanahan, No. 16-CV-1928 (KBF),
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2017 WL 3172765, at *4 n.3 (S.D.N.Y. July 26, 2017) (stating that exhaustion of administrative remedies was not required where the petitioner challenged the adequacy of the Lora bond hearing that had been previously ordered by the court).
The Court finds the Enoh court's rationale equally applicable to the instant matter. Here, as already noted above, Petitioners' motion does not raise any new claim for relief. Petitioners have merely challenged Respondents' compliance with this Court's November 17, 20 17, Decision by requesting explicit clarification of its scope and effect. Without question, this Court has jurisdiction to clarify its own orders. See Meinhold, 34 F.3d at 1480 n.l4; Wash. Metro. Area Transit Comm 'n, 985 F. Supp. 2d at 29; see also Sys. Fed'n No. 91, Ry. Emp. Dep't, AFL-C/0, 364 U.S. at 647; Cullman Ventures, Inc., 1989 WL 94902, at *3. Requiring Petitioners to appeal a bond determination to the BIA in order to argue that the IJ misinterpreted the scope and effect of this Court's own November 17, 20 17, Decision would not serve any of the purposes of administrative exhaustion. See Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003) (noting that the purposes of the "judicial exhaustion doctrine ... include protecting the authority of administrative agencies, limiting interference in agency affairs, developing the factual record to make judicial review more efficient, and resolving issues to render judicial review unnecessary"). Indeed, it would be fair to conclude that such a requirement would only serve to undermine the principles of due process outlined in Lora, see Enoh, 2017 WL 2080278, at *3-the very same conceptual underpinnings that form the foundation of this Court's November 17, 2017, Decision.
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Therefore, because Petitioners do not ratse any new claims in this action, administrative exhaustion is not required before this Court can entertain a motion requesting that it clarify its own prior grant of injunctive relief.
2. In the Alternative, Administrative Exhaustion is Excused Due to Futility
"There is no statutory requirement of administrative exhaustion before immigration detention may be challenged in federal court by a writ of habeas corpus; however, such exhaustion is generally required as a prudential matter." Paz Nativi v. Shanahan, No. 16CV-8496 (JPO), 2017 WL 281751, at* 1 (S.D.N.Y. Jan. 23, 2017) (citing Araujo-Cortes v. Shanahan, 35 F. Supp. 3d 533, 538 (S.D.N.Y. 2014)); see 8 C.F.R. § 1236.1(d)(3) ("An appeal relating to bond and custody determinations may be filed to the Board of Immigration Appeals...."). Where, as here, "an exhaustion requirement is judicially imposed instead of statutorily imposed, a number of exceptions apply that allow courts to excuse a party?s failure to exhaust administrative remedies." Beharry, 329 F.3d at 62. Exemption from prudential administrative exhaustion requirements is permitted where "'(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question."' !d. (quoting Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996)).
Indeed, "courts may waive a judicially created exhaustion requirement where pursuing administrative remedies would be futile or where the agency has predetermined the issue before it." Araujo-Cortes, 35 F. Supp. 3d at 538; see Cave v. E. Meadow Union
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Free Sch. Dist., 514 F.3d 240, 249 (2d Cir. 2008) ("The exhaustion requirement is excused when exhaustion would be futile because the administrative procedures do not provide an adequate remedy."). Where the pursuit of "available administrative remedies would be futile, the purposes behind the requirement of exhaustion are no longer served, and thus a court will release the [petitioner] from the requirement." Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993).
The Court finds that even if Petitioners were required to exhaust their administrative remedies, their failure to do so is excused because exhaustion would be futile. The Ninth Circuit was recently faced with the same question in Hernandez. In that case, the court determined that the BIA had previously held that a detainee's ability to pay the bond amount was not relevant to the bond calculation. Hernandez, 872 F.3d at 989. Based on a review of several BIA decisions, this Court agrees that the BIA has predetermined that a detainee's financial circumstances is not a required consideration when setting the bond amount. See In Re: Manuel Balbuena Rivera A.K.A. Manuel Rivera-Balbuena, A091 878 213,2010 WL 691275, at *1 (BIA Feb. 16, 2010) ("[T]he test for determining the proper bond amount is not whether the respondent is financially capable of posting bond, but whether the amount of bond is reasonably calculated to assure his appearance for future proceedings or, if necessary, for removal."); In re Castillo-Cajura, A089 853 733, 2009 WL 3063742, at *1 (BIA Sept. 10, 2009) ("[A]n alien's ability to pay the bond amount is not a relevant bond determination factor."); In Re: Mario Sandoval-Gomez, A092 563 965, 2008 WL 5477710, at *1 (BIA Dec. 15, 2008) (same). Moreover, Hernandez also notes that another recent unpublished BIA decision indicates that '"an Immigration Judge is not
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required to consider an alien's ability to pay when setting a bond."' Hernandez, 872 F.3d at 1003 n.15; see Araujo-Cortes, 35 F. Supp. 3d at 538 (finding that an appeal to the BIA would have been futile where the BIA had rejected the petitioner's arguments in prior cases); Sulayao v. Shanahan, No. 09 Civ.7347(PKC), 2009 WL 3003188, at *3 (S.D.N.Y. Sept. 15, 2009) ("Appealing this decision to the BIA would be futile because the BIA recently reaffirmed the interpretation of section 1226(c) which subjects aliens like petitioner to mandatory detention."); see also Rivera v. Holder, 307 F.R.D. 539, 552 (W.D. Wash. 2015) (finding that "[o]ther courts have found unpublished BIA holdings highly probative of whether the Board has come to a decision on an issue").
The Court recognizes that the district court in Paz Nativi v. Shanahan, No. 16-CV8496 (JPO), 2017 WL 281751 (S.D.N.Y. Jan. 23, 2017), reached the opposite conclusion. In that case, the petitioner also argued that the exhaustion of administrative remedies would be futile, citing "several BIA decisions rejecting the relevance of ability-to-pay considerations in bond determinations." !d. at *2. However, the district court was persuaded by the respondents' citation to "multiple cases in which the BIA has reduced bond amounts on appeal," and the fact that the factors used in calculating bond amounts are "nonexclusive"; thus, the "ability to pay" could be reviewed by the BIA in determining whether bond is excessive. !d. However, Paz Nativi is distinguishable from the circumstances of the present action.
Unlike Paz Nativi, where the court ruled directly upon the petitioner's habeas petition and request for injunctive relief, the unique procedural posture of Petitioners' motion undermines the necessity ofprudential administrative exhaustion. Here, Petitioners
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seek clarification of an existing preliminary injunction order issued by this Court. (Dkt. 67). It would be counterintuitive to require Petitioners to appeal a bond determination to the BIA in order to argue, in the first instance, that the IJ misinterpreted the scope and effect of this Court's own November 17, 2017, Decision. As stated above, such a requirement would not serve any of the purposes of prudential exhaustion.
In addition, the Paz Nativi decision indicates that "the immigration judge relied on the bond determination factors outlined in [Guerra]; she did not take into account [the petitioner]'s ability to pay." Paz Nativi, 2017 WL 281751, at* 1. Nowhere in that decision does the court mention the mandates set forth in Lora. As noted above, Guerra appears to be the leading BIA decision relating to bond calculations. However, while the Guerra factors may be sufficiently broad to permit the IJ's consideration of alternatives to detention and a detainee's ability to pay, the case law certainly does not require the IJ to consider those factors. See Guerra, 24 I. & N. Dec. at 40. Instead, the Guerra standard simply sets forth nine factors that, in the IJ's "broad discretion," may or may not receive consideration in any given instance. See id.; see also Hernandez v. Lynch, No. EDCV 1600620-JGB (KKx), 2016 WL 7116611, at *29 n.16 (C.D. Cal. Nov. 10, 2016) ("[E]ven if the ability to pay is a discretionary factor Immigration Judges may consider when determining bond[,] ... this is irrelevant to [the p]laintiffs' contention that both the ability to pay and alternatives to detention must be considered in bond determinations."), aff'd sub nom. Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) (emphasis in original). The issue presented by Petitioners' motion is whether Respondents were obligated to take such considerations into account in setting bond during a Lora-style hearing.
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Furthermore, to the extent that the Paz Nativi court reasoned that the BIA "could consider the ability-to-pay issue more broadly" or "could consider ability to pay as a factor in bond determinations" under the Guerra standard, the BIA decisions cited above demonstrate that Guerra has not yet been construed so expansively. See Hernandez, 872 F.3d at 1003 n.15 (rejecting "the government's contention that the cases cited above do not reflect current policy as well as its speculation that the BIA 'may decide to further clarify the Guerra standard"'). In addition, the cases cited by Respondents for the proposition that the BIA may reduce the amount set for bond do not suggest that the BIA considers a detainee's financial circumstances as a relevant factor; rather, they merely reiterate that the "amount of bond should be reasonably calculated to insure an alien's presence at future proceedings." In Re: Jesus Gomez A.K.A. Carlos Alvarez, A095 811 474, 2010 WL 1607087, at *1 (BIA Mar. 23, 201 0) (noting also that bond calculations "should not be used as a punitive measure"); In Re: Garaycochea, Javier Santiago, A79-616-114, 2006 WL 901383, at* 1 (BIA Feb. 22, 2006) ("[A] bond is set by an immigration judge according to the assessment of the amount needed to motivate the respondent to appear in light of relevant considerations."); In Re: Mahmoud Mohamed Harkous, A77 070 695, 2004 WL 2943563, at* 1 (BIA Nov. 2, 2004) (reducing the bond as generally excessive "[g]iven the respondent's lack of danger to the community and the lack of flight risk").3

3

Respondents do not specifically contend that Petitioners' argument for the

mandatory consideration of alternative conditions of release should also have been made,

in the first instance, in an appeal before the BIA. However, Respondents take the position

that IJs "are not required to consider ... alternatives to detention when setting bail" as well

as a detainee's "ability to pay." (Dkt. 76 at 17 (citing In Re: Luis Navarro-Solajo A.K.A.

Luis Solajo-Navarro A.K.A. Solano Solao-Navarro, A087 966 841, 2011 WL 1792597, at

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Therefore, the Court holds, in the alternative, that Petitioners are excused from satisfying the prudential administrative exhaustion requirement because any appeal to the BIA would have been futile in this case. III. Barrios Ramos is Not Precluded From Seeking Clarification of the Court's
Original Order Under Standing Principles Respondents argue that Barrios Ramos does not have standing to assert the "new claims" set forth in Petitioners' motion because he "has not had a bond hearing" and thus, "he cannot claim to have suffered the injury that supports Petitioners' new question for relief." (Dkt. 76 at 18). Respondents also argue that Barrios Ramos never had a "personal interest" in these "new claims," and thus, the "voluntary cessation exception and inherently transitory exceptions to the mootness doctrine" are inapplicable. (!d. at 18 n. 7). To establish standing under Article III of the United States Constitution, "a plaintiff must, generally speaking, demonstrate that he has suffered 'injury in fact,' that the injury is 'fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Lujan v. Deft. of Wildlife, 504 U.S. 555, 560-61 (1992)). "The Second Circuit has stated that to determine whether a party has standing, the court 'must look to the facts and circumstances as they existed at the time [the] suit was initiated."' Digizip.com, Inc. v.
*1 n.2 (BIA Apr. 13, 2011))). Therefore, it appears that an administrative appeal contending that alternative conditions of release must have been considered in setting bond would have been futile as well. See Hernandez, 2016 WL 7116611, at *29 n.16. Furthermore, for the same reasons stated above regarding the subclass members' ability to pay, requiring Petitioners' request for clarification of this Court's own November 17,2017, Decision to be heard before the BIA in the first instance fails to serve any ofthe principles underlying the application of prudential exhaustion. See Beharry, 329 F.3d at 62.
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Verizon Servs. Corp., 139 F. Supp. 3d 670, 675 (S.D.N.Y. 2015) (quoting Etuk v. Slattery, 936 F.2d 1433, 1440-41 (2d Cir. 1991)); see Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (standing "must exist at the commencement of the litigation"). The principles of mootness and standing both arise from the "case or controversy" requirement of Article III. Etuk, 936 F.2d at 1441. "While standing focuses on the status of the parties when an action is commenced, the mootness doctrine requires that the plaintiffs' claims remain alive throughout the course of the proceedings." !d.
Respondents' standing argument rests upon an erroneous premise: that Petitioners' motion raises "new claims" separate and apart from those asserted in the amended petition or the motion for preliminary injunction. (Dkt. 76 at 18). As already noted, Petitioners do not make any new or unrelated requests for relief. At the time this action was commenced, Barrios Ramos had passed a credible fear interview and had been detained for over six months. (Dkt. 17-1 at 2). As such, the fact that Barrios Ramos has since been released from custody "has no impact on his standing to seek injunctive relief." See Hernandez, 2016 WL 7116611, at* 12; Clarkson v. Coughlin, 783 F. Supp. 789, 794 & n.5 (S.D.N.Y. 1992) (noting "no dispute" as to whether standing was established at the commencement of the action where the plaintiff was incarcerated at the time she filed her class action complaint, and was then paroled); see also Maphorisa v. Dist. Dir., ICE, No. CIV. 3:CV09-0298, 2010 WL 598451, at *2 (M.D. Pa. Feb. 17, 2010) ("When a habeas petitioner has been released from custody after filing a petition, the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the United States Constitution." (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998))).
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Therefore, the Court concludes that Article III standing principles do not preclude Barrios Ramos from asserting the relief sought by Petitioners' motion to clarify.
CONCLUSION For the foregoing reasons, Petitioners' motion for clarification (Dkt. 67) is granted. The Court clarifies that the November 17, 2017, Decision requires that once an IJ has determined that a detainee should be released on bond, he or she must consider the financial circumstances of each subclass member and alternative conditions of release in setting the amount of bond. Accordingly, IT IS HEREBY ORDERED that for all subclass members provided a bond hearing pursuant to this Court's November 17, 2017, Decision, the IJ, when setting the terms of any subclass member's release at a bond hearing, must consider alternative conditions of release and the individual's ability to pay; and it is further ORDERED, that for those subclass members who have already received a bond hearing pursuant to the November 17, 2017, Decision, and who remain detained notwithstanding an IJ' s determination that release on bond would be appropriate, bond hearings must be recalendared and the record reopened for the IJ to consider alternative conditions of release and the individual's ability to pay; and it is further ORDERED, that counsel for Respondents shall notify Class Counsel of the date and location of each bond hearing set pursuant to this Decision and Order at least five days in advance of the hearing.
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Case 1:17-cv-00721-EAW Document 83 Filed 02/09/18 Page 30 of 30 SO ORDERED. Dated: February 9, 2018 Rochester, New York
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 Case 1:17-cv-00721-EAW Document 129 Filed 04/30/19 Page 1 of 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

FILED
APR 3 0 2019

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all other similarly situated,
Petitioners,
V.

DECISION AND ORDER I:I7-CV-0072I EAW

KEVIN MCALEENAN,'in his official capacity as
Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY,in his official capacity as Acting Director of Buffalo Field Office ofImmigration and Customs Enforcement; JEFFREY SEARES,in his official Capacity as Acting Administrator ofthe Buffalo Federal Detention Facility; and WILLIAM BARR,^ in his official capacity as Attorney General ofthe United
States,

Respondents.

BACKGROUND
Petitioners Hanad Abdi and Johan Barrios Ramos brought this action seeking relief on behalfofthemselves individually and on behalfofa proposed class ofsimilarly situated asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York (the "Batavia facility"). (Dkt. 17). On November 17, 2017, the Court issued a Decision and Order denying Respondents' motion to dismiss and granting Petitioners' motion for a

' Kevin McAleenan is the current Acting United States Secretary of Homeland
Security. Accordingly, he is substituted as a respondent in this action. See Fed. R. Civ. P. 25(d).
2 William Barr is the current United States Attorney General. Accordingly, he is
substituted as a respondent in this action. See Fed. R. Civ. P. 25(d).
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preliminary injunction. (Dkt. 56). The Court ordered Respondents to immediately adjudicate or readjudicate the parole applications of all members ofthe putative class of asylum-seekers detained at the Buffalo facility in conformance with their legal obligations, including their obligations under ICE Directive No. 11002.1: Parole ofArriving Aliens Found to Have a Credible Fear ofPersecution or Torture(Dec.8,2009). {Id. at 65). The Court also ordered Respondents to provide individualized bond hearings to members ofthe putative subclass who have been detained for six months or more, as required by 8 U.S.C.
§ 1225(b). {Id. at 66). On December 7, 2017, the Court held oral argument to address Petitioners' then-
pending motion for class action certification. (Dkt.62;see Dkt. 19). Atthe conclusion of the motion hearing, the Court required Respondents to give notice to proposed class counsel as soon as a bond hearing was scheduled and to provide the same counsel with a list ofall putative class members. {See Dkt.75 at 31-34). The Court subsequently granted Petitioners' motion for class certification on December 19, 2017 (Dkt. 66), certifying a class of"[a]ll arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole," as well as a subclass of"[a]11 arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigrationjudge,"{id. at 23).
On February 9,2018,the Court issued another Decision and Order,clarifying "that
once an [immigration judge (TJ')] has determined that a detainee should be released on
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bond, he or she must consider the financial circumstances of each subclass member and
alternative conditions of release in setting the amount of bond". (Dkt. 83 at 29). As a result, the Court ordered that "bond hearings must be recalendared and the record reopened" for any subclass member "who remain[ed] detained notwithstanding an IJ's determination that release on bond would be appropriate," so that "alternative conditions ofrelease and the individual's ability to pay"are considered. {Id.). The Courtalso required Respondents to notify Class Counsel"ofthe date and location ofeach bond hearing ... at least five days in advance ofthe hearing." {Id.).
On February 27, 2018, the Supreme Court issued a decision in Jennings v. Rodriguez, 138 S.Ct.830(2018),which held,among other things,that 8 U.S.C.§ 1225(b) does not contain an implicitsix-month time limit on the detention ofan alien seeking entry into the United States. See id. at 842-846. On October 31, 2018, Respondents filed a motion to vacate that part of the Court's preliminary injunction requiring that individualized bond hearings be held for all members of the subclass. (Dkt. 91). Respondents seek this relief based upon their interpretation of Jennings. (Dkt. 91-1 at 8-11). On December 13,2018,Respondents filed a motion to decertify the subclass. (Dkt. 102). Although Respondents address several issues in their motion papers, the Jennings decision appears to be the impetus for this motion as well. {See Dkt. 102-1 at 8-12, 15-16). Petitioners oppose both motions. (Dkt.99;Dkt. 121).
Respondents' pending motions are scheduled to be argued on May 15,2019. (Dkt. 123). While those pending motions were being briefed—on March 18,2019—^Petitioners filed a motion to enforce the preliminary injunction and class reporting order. (Dkt. 122).
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Petitioners contend that Respondents are not taking appropriate measures to comply with the Court's prior orders. (Dkt. 122-1). Petitioners request that the Court grant limited discovery relating to Respondents' current procedures used in complying with the preliminary injunction, mandate additional reporting and disclosure conditions, require Respondents to hold bond hearings for all applicable class members no later than 195 days after their initial immigration detention and provide notice to all parties no later than two weeks before the scheduled hearing date, and direct Respondents to issue a directive informing immigration authorities of their responsibilities under the Court's prior orders. (See Dkt. 122-7). Respondents oppose Petitioners'motion. (Dkt. 127).
Having reviewed the parties'submissions,the Courtfinds that Respondents'refusal to engage in a discussion with Petitioners concerning the admitted violations ofthis Court's Orders is unreasonable.(See Dkt. 122-2 at6(Petitioners' counsel requesting to"speak with the person(s) collecting information for the monthly class report" and for Respondents to identify "what steps [they] plan to take to verify and correct the ongoing [preliminary injunction] violations"), 8 (Respondents' counsel indicating that they "don't believe it's necessary for you to communicate directly with agency client representatives" and that they "think communication with us is best done over email"), 16 (Petitioners' counsel requesting to speak over the telephone and noting that these "meet-and-confer conversations over email, stretched out for days and weeks," have not been productive)). The unreasonableness of Respondents' position is only amplified by the fact that there is no dispute that Respondents have failed to comply with the requirements imposed by this Court. (See Dkt. 127 at 5 (conceding that there have been occasions when subclass
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members were not included on the monthly class lists)). As a result, the Court concludes that it is unnecessary to await the scheduled oral argument date before granting the requested reliefofa deposition.
Accordingly,for the following reasons.Petitioners' motion(Dkt. 122)is granted to the extent that Respondents are hereby ordered to produce a witness or witnesses for deposition within thirty (30) days of this Court's Decision and Order who has personal knowledge of the methodology being used by Respondents to identify and report class members and who can testify concerning any changes made or that will be made by Respondents to address the recurring errors in the identification of class members. The Court otherwise reserves decision on the remaining aspects of the motion and all parties shall plan on addressing those remaining aspects of the motion at the upcoming oral
argument scheduled for May 15,2019.
DISCUSSION
"Federal courts have broad discretion to fashion remedies as equity requires, to ensure compliance with their orders." Cordius Tr. v. Kummerfeld Assocs., Inc., 658 F. Supp.2d 512,524(S.D.N.Y.2009);see Nat'ILaw Ctr. on Homelessness&Poverty v. U.S. Dep't ofVeterans Affairs,842 F.Supp.2d 127, 131(D.D.C.2012)("[W]hen it comes to a court's enforcement and monitoring of its own orders, the court is the judge and jury."). This is so even in the absence ofcontempt. UnitedStates v. Visa U.S.A.,Inc.,No.98 CIV. 7076(BSJ),2007 WL 1741885,at *12(S.D.N.Y.June 15,2007)(citing Berger v. Heckler, 771 F.2d 1556, 1569(2d Cir. 1985)). "The Court has the relevant authority 'as part ofits inherent power to enforce itsjudgments,' and it is clear that'appropriate discovery should
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be granted'where'significant questions regarding noncompliance[with a courtorder]have been raised.'" Damns v. Nielsen,328 F.R.D, 1, 3-4(D.D.C.2018)(quoting Cal. Dep't of Social Servs. v. Leavitt, 523 F.3d 1025, 1033-34 (9th Cir. 2008)); see Blackberry Ltd. v. Typo Prod. LLC,No. 14-CV-00023-WHO,2014 WL 4136586, at *5(N.D. Cal. Aug.21, 2014) (authorizing several discovery requests, including depositions, "in light of the serious questions raised regarding [the defendant]'s possible violations ofthe preliminary injunction");see also Palmer v. Rice,231 F.R.D.21,25(D.D.C.2005)(permitting "postjudgment discovery" where the "plaintiffs will not be able to determine whether the government has complied with the court's injunctions"); see generally Campaignfor S. Equal. V. Bryant, 197 F. Supp. 3d 905,914(S.D. Miss. 2016)(stating that "plaintiffs are entitled to reasonable discovery to enforce an injunction against the parties bound by that injunction").
In filing their motion. Petitioners address various instances of purported noncompliance with this Court's preliminary injunction and class reporting orders. The remedies Petitioners seek are ultimately intended to ensure that Respondents timely hold individualized bond hearings for all identifiable subclass members and that all participants to those proceedings are provided sufficient notice and an adequate time to prepare without necessitating further delay. Respondents state that they maintain a goal of providing individualized bond hearings within 195 days of a subclass member's initial immigration detention. (Dkt. 127 at 4, 7; Dkt. 127-2 at ^ 7). However, Respondents are under court order to provide timely bond hearings. While the Court's preliminary injunction did not specify an exact date at which time the hearing must be held after the six-month
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demarcation, it should be self-evident that once an asylum-seeker, who is otherwise qualified as a member ofthe subclass, has been detained for over six months,he or she is immediately entitled to a bond hearing pursuant to the Court's preliminary injunction. Moreover, the six-month time period runs from the date a class member is taken into custody,regardless ofwhether the detainee is being held at the Batavia facility. The Court is deeply troubled that as recently as last month,government counsel continued to express confusion over this basic proposition. {See Dkt. 128-2 at Tf 5).
Absent evidence of extenuating circumstances—^which has not been presented here—^the act ofscheduling bond hearings several weeks or,in some cases,months beyond that six-month time limitation does not comport with this Court's injunction. It goes without saying that Respondents' opinion of the vitality of the Court's preliminary injunction ^osX-Jennings does not justify ignoring a duly-issued court-ordered injunction. In other words. Respondents are certainly entitled to challenge the Court's preliminary injunction by appealing that decision or moving to vacate the injunction—^but they are not entitled to simply disregard the Court's Orders. Accordingly,the following reliefis granted pursuant to the Court's inherent authority to monitor and enforce its prior orders.
Specifically,Petitioners requestthe Courtto order Respondentsto produce a witness for deposition to determine what process is in place to identify subclass members and how those procedures can be improved, if at all, to remedy the shortfalls identified in their motion papers. While Respondents contend that a deposition is unnecessary in light ofthe declarations submitted in opposition to Petitioners' motion (Dkt. 127 at 5 n.3), these declarations provide only cursory insight into Respondents' current procedures and do not
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respond to Petitioners' concerns that some subclass members are being missed. In other words, the several-paragraph descriptions of Respondents' process fail to address Petitioners' well-supported beliefthat these procedures are deficient. See also Nat'ILaw Ctr. on Homelessness & Poverty, 842 F. Supp. 2d at 131 ("Equity would not be achieved ifa court decided simply to rubber-stamp an enjoined party's unsupported self-assessment of its compliance with a court order."). Respondents' inadequate explanation is only compounded by their failure to engage in a meaningful discussion with Petitioners in an attempt to rectify these failures. (See Dkt. 122-2 at 5-18).
Petitioners' ability to identify subclass members is critical to the operation of the Court's preliminary injunction, and thus. Respondents' inability to accurately provide a monthly list to class counsel is troubling regardless of whether Respondents' failure to do so is deliberate or unintentional. Accordingly, the Court grants Petitioners' request for limited discovery based on its inherent authority to enforce the preliminary injunction and class reporting orders, and requires Respondents to produce a witness or witnesses for deposition within thirty (30) days of this Court's Decision and Order who has personal knowledge of the methodology being used by Respondents to identify and report class members and who can testify concerning any changes made or that will be made by Respondents to address the recurring errors in the identification of class members. The Court otherwise reserves decision on the remaining aspects of the motion and all parties shall plan on addressing those remaining aspects of the motion at the upcoming oral argument scheduled for May 15,2019.

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CONCLUSION
For the foregoing reasons, Petitioners' motion to enforee the preliminary injunetion (Dkt. 122)is granted to the extent that Respondents are hereby ordered to produee a witness or witnesses for deposition within thirty(30)days ofthis Court's Decision and Order who has personal knowledge of the methodology being used by Respondents to identify and report class members and who can testify concerning any changes made or that will be made by Respondents to address the recurring errors in the identification ofclass members. The Court otherwise reserves decision on the remaining aspects of the motion and all parties shall plan on addressing those remaining aspects ofthe motion at the upcoming oral argument scheduled for May 15, 2019.
SO ORDERED.

Dated:

April 30, 2019 Rochester, New York

ELIZABETH /w^LFI
Umtgd^StatesDistrict Judge

 
 Case 1:17-cv-00721-EAW Document 151 Filed 09/24/19 Page 1 of 28

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SEP 2 4 2019

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all others similarly situated,

iS!^D^STR\CiS^

Petitioners,
V.
KEVIN MCALEENAN,in his official capacity as Acting Secretary of U.S. Department ofElomeland Security; THOMAS BROPHY,in his official capacity as Acting Director of Buffalo Field Office ofImmigration and Customs Enforcement; JEFFREY SEARES,in his official Capacity as Acting Administrator ofthe Buffalo Federal Detention Facility; and WILLIAM BARR,in his official capacity as Attorney General ofthe United
States,

DECISION AND ORDER I:I7-CV-0072I EAW

Respondents.

INTRODUCTION
The instant matter involves a certified subclass of asylum-seekers who have demonstrated a credible fear of persecution or torture in their respective homelands. Each has been taken into custody and detained at the Buffalo Federal Detention Facility in Batavia, New York, pursuant to 8 U.S.C. § 1225(b)(l)(B)(ii). Each has been imprisoned in a maximum-security facility for more than six months without a bond hearing while actively seeking admission into the United States.
This Court previously certified the subclass and granted a preliminary injunction requiring that bond hearings be provided to the subclass. See Abdi v. Duke,280 F. Supp.

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3d 373(W.D.N.Y.2017);Abdi v. Duke,323 F.R.D. 131 (W.D.N.Y.2017). At the time, the Ninth Circuit CourtofAppeals and the majority ofdistrict courts in the Second Circuit had imposed a temporal limitation on § 1225(b) through the canon of constitutional avoidance. See Abdi, 280 F. Supp. 3d at 390-93. However, the Supreme Court subsequently held that § 1225(b) cannot reasonably be interpreted to require a bond hearing after six months ofdetention. See Jennings v. Rodriguez, 138 S. Ct. 830,842-46 (2018). The Supreme Court's decision in Jennings did not address the constitutional arguments raised in that case,and the Supreme Courtremanded those issues for the Ninth
Circuit to consider in the first instance. See id. at 851.
Pending before the Court are Respondents' motion to vacate this Court's preliminary injunction order (Dkt. 91) and motion to decertify the subclass (Dkt. 102), and Petitioners' motion to enforce the preliminary injunction order (Dkt. 122). These motions directly confront several questions left open in Jennings, including whether asylum-seekers detained pursuant to § 1225(b)(l)(B)(ii) are entitled to due process protections and, if so, whether the class action device is the appropriate mechanism to resolve Petitioners' due process challenges. Respondents also contend that this Court is without jurisdiction to issue class-wide injunctive or declaratory relief pursuant to 8U.S.C. § 1252(f)(1).
Assuming arguendo that the subclass enjoys constitutional protections, the Court concludes that the subclass no longer satisfies the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure. As a result, the subclass must be decertified and the preliminary injunction vacated. The Court need not, and does not, decide whether these
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asylum-seekers have Fifth Amendment due process rights. See Lyng v. Nw. Indian Cemetery Protective Ass'n,485 U.S.439,445(1988)("A fundamental and longstanding principle ofjudicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them."). Furthermore, in light of this Court's decision to decertify the subclass. Respondents' position that the Court does not have jurisdiction to issue class-wide injunctive or declaratory reliefpursuant to § 1252(f)(1)is a moot point and is not addressed.
For the following reasons. Respondents' motion to decertify the subclass (Dkt. 102) is granted. Accordingly, the Court's preliminary injunction order granting classwide reliefin favor ofthe now decertified subclass is vacated, and Respondents' motion to vacate the preliminary injunction (Dkt. 91) and Petitioners' motion to enforce the preliminary injunction(Dkt. 122)are both denied as moot.
BACKGROUND & PROCEDURAL HISTORY
The Court has issued several decisions relating to the subject matter of this case, familiarity with which is assumed for purposes ofthis Decision and Order. The Court has summarized the key details below.
I. The Court's Preliminary Injunction
Petitioners Hanad Abdi and Johan Barrios Ramos("Petitioners")broughtthis action seeking relief on behalf of themselves individually and on behalf of a proposed class of similarly situated asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York. (Dkt. 17). On November 17, 2017, the Court issued a Decision and Order denying Respondents' motion to dismiss and granting Petitioners' motion for a preliminary
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injunction. SeeAbdi,280 F.Supp.3d 373. The Court ordered Respondents to immediately adjudicate or readjudicate the parole applications of all members of the putative class of asylum-seekers detained at the Buffalo Federal Detention Facility in conformance with their legal obligations,including their obligations underICE Directive No. 11002.1:Parole ofArriving Aliens Found to Have a Credible Fear ofPersecution or Torture(Dec.8,2009) (the"ICE Directive"). The Court also ordered Respondents to provide individualized bond hearings to members ofthe putative subclass who were detained for six months or more,
pursuant to 8 U.S.C. § 1225(b).' In granting the preliminary injunction, the Court
concluded "that Petitioners are likely to satisfy the Rule 23(a) prerequisites for class certification: numerosity,commonality,typicality, and adequacy ofrepresentation." Abdi, 280 F. Supp. 3d at 401 (quotation omitted).
II. The Court's Subsequent Class Certification and Clarification Orders and the Supreme Courfs Decision in Jennings v. Rodri2uez
Consistent with its findings in granting the preliminary injunction, on December 19, 2017, the Court issued a Decision and Order granting Petitioners' motion for class certification. See Abdi, 323 F.R.D. 131. Specifically, the Court defined the certified
subclass as follows:
All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge.
' The pending motions concern only the continued viability of this Court's
preliminary injunction and class certification orders as they pertain to the subclass.
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Id. at 145. On January 11,2018,Respondents filed an interlocutory appeal ofthe Court's Decision and Order granting the preliminary injunction. (Dkt. 74).
On February 9,2018,the Court issued another Decision and Order, which clarified the preliminary injunction to require "that once an [immigration judge ('IJ')] has determined that a detainee should be released on bond,he or she mustconsider the financial circumstances ofeach subclass member and alternative conditions ofrelease in setting the amount ofbond." Abdi v. Nielsen,287 F.Supp.3d 327,345(W.D.N.Y.2018). As a result, the Court ordered that "bond hearings must be recalendared and the record reopened" for any subclass member"who remain[ed]detained notwithstanding an IJ's determination that release on bond would be appropriate," so that "alternative conditions of release and the individual's ability to pay" were given consideration. Id. The Court also required Respondents to notify Class Counsel"ofthe date and location ofeach bond hearing...at least five days in advance ofthe hearing." Id. On February 15,2018,Respondents filed an amended notice ofinterlocutory appeal. (Dkt.84).
On February 27, 2018, the Supreme Court issued its decision in Jennings, which rejected the Ninth Circuit's interpretation ofthe Immigration and Nationality Act,8 U.S.C. § 1101 et seq. (the "INA"), and held that § 1225(b) of the INA could not plausibly be construed to contain an implicit six-month time constraint at which point a bond hearing was statutorily required. 138 S. Ct. at 842-46. In doing so, the Court determined that the canon of constitutional avoidance was not applicable because § 1225(b) mandated "detention of applicants for admission until certain proceedings have concluded," and "nothing in the statutory text impose[d] any limit on the length of detention." Id. at 842.
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In other words, because the plain text of § 1225(b) was not amendable to any other plausible construction, the constitutional avoidance canon of statutory interpretation did not apply. See id. at 844. However, the Jennings majority did not address whether the Constitution mandated periodic bond hearings and remanded the case for consideration of
these constitutional arguments in the first instance.^ See id. at 851.
HI. Respondents* Motions to Vacate the Preliminary Injunction and to Decertify
the Subclass
On September 5, 2018, the Second Circuit remanded Respondents' appeal for "further consideration in light of the Supreme Court's decision" in Jennings. (Dkt. 90). On October 31, 2018, Respondents filed a motion to vacate that part of the Court's preliminary injunction that required individualized bond hearings for each subclass member held in immigration detention for six months or longer. (Dkt. 91). Respondents' application is based upon their interpretation of Jennings. (Dkt. 91-1 at 8-11). First, Respondents contend that Jennings suggests that this Court is withoutjurisdiction to issue class-wide injunctive reliefpursuantto 8 U.S.C.§ 1252(f)(1). (Dkt.91-1 at 8-9). Because § 1252(f)(1) prohibits courts "other than the Supreme Court" from "enjoin[ing]" or "restrain[ing]" the operation of 8 U.S.C. §§ 1221-1232, see 8 U.S.C. § 1252(f)(1), Respondents contend that the preliminary injunction violates this provision by enjoining the operation of§ 1225(b)(Dkt. 91-1 at 8-9). Second,Respondents contend that even if
^ The Ninth Circuit, in turn, has remanded those issues to the district court for it to consider in the first instance. See Rodriguez v. Marin,909 F.3d 252,257(9th Cir. 2018). The district court has not yet issued a subsequent decision addressing the parties' constitutional arguments.
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the Court has jurisdiction to issue class-wide injunctive relief after Jennings, the basis for the instant injunction has been eliminated. {Id. at 9-11). Specifically, Respondents take the position that because 8 U.S.C. § 1225(b)cannot plausibly be interpreted as containing an implicit six-month time limit under the canon of constitutional avoidance, this Court's rationale for requiring a bond hearing after six months in immigration detention is no longer viable. {Id.).
On December 13,2018,Respondents filed a motion to decertify the subclass. (Dkt. 102). Although Respondents address several issues in their motion papers, the Jennings decision serves as the impetus for this motion as well. {See Dkt. 102-1 at 8-12, 15-16). Respondents assert the same § 1252(f)(1)jurisdictional arguments raised in their motion to vacate. {Id. at 8-10). In addition. Respondents contend that § 1252(f)(1) also bars any class-wide declaratory reliefbecause it would "essentially afford[]injunctive relief,serve[] as a basis for later injunctive relief, or[would be]identical to the injunctive reliefsought." {Id. at 12; see id. at 10-12). Furthermore, Respondents argue that even if this Court has jurisdiction to grant Petitioners class-wide relief in any form. Petitioners' due process claims are not capable of a uniform or common resolution as required by Federal Rule of Civil Procedure 23. {Id. at 12-15). Finally, Respondents contend that because the subclass was originally certified based upon an incorrect construction of 8 U.S.C. § 1225(b), it should be decertified on that ground as well. {Id. at 15-16).
Although Petitioners oppose both motions(Dkt.99; Dkt. 121),they do not dispute that the Supreme Court has eliminated the statutory basis for this Court's injunction and class certification orders as they relate to the subclass. Petitioners claim that their
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entitlementto the type ofindividualized bond hearings required by this Court's prior orders is rooted in the Fifth Amendment's Due Process Clause. As such, they contend that the subclass members have a constitutional due process right to receive a bond hearing after six months or more of immigration detention. (Dkt. 99 at 14-30). Petitioners also argue that there are several reasons why this Court hasjurisdiction to issue class-wide injunctive or, alternatively, declaratory relief. (See id. at 30-31; Dkt. 121 at 10-21). Finally, Petitioners contend that the subclass still satisfies the requirements ofFederal Rule ofCivil Procedure 23 and the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S.338(2011). (Dkt. 121 at 22-27).
IV. Petitioners' Motion to Enforce the Preliminary Iniunction
On March 18,2019,Petitioners filed a motion to enforce the preliminary injunction and class reporting order. (Dkt. 122). Petitioners contend that Respondents are not taking appropriate measures to comply with this Court's prior orders. (iSeeDkt. 122-1). On April 30,2019,the Court issued a Decision and Order granting Petitioners' motion to enforce in part, ordering limited discovery on the methodology used by Respondents to identify and report class members and any changes made or that will be made by Respondents to address the recurring errors in their identification of class members. (Dkt. 129). The Court reserved decision on the remaining aspects ofPetitioners' motion to enforce. (Id.).
On June 10,2019,the Court held oral argumenton the pending motions. (Dkt. 141). The Court instructed the parties to meet and confer to address any remaining issues on Petitioners' motion to enforce and set a briefing schedule for the parties to identify any disputes relating to that motion that were left unresolved. The Court reserved decision on
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the remaining issues. The parties subsequently filed additional submissions pertaining to
Petitioners' motion to enforce that outlined what issues had been resolved and what issues
remained outstanding. (Dkt. 142;Dkt. 143;Dkt. 144). Petitioners have also filed two letter submissions identifying additional case authorities in support of their opposition to Respondents' motions. (Dkt. 145; Dkt. 149). Respondents have responded to these supplemental filings and argue against the applicability of the case law identified by Petitioners. (Dkt. 146; Dkt. 150).
DISCUSSION I. Jenninss Represents an Intervening Change in Controlling Law that Warrants
Reexamination of this Court's Class Certification Order
A. Statutory Background for an "Arriving Alien" "Section 1225(b) of Title 8, United States Code, sets forth procedures for the inspection and detention of individuals who are 'applicants for admission' to the United States." Perez v. Decker, No. 18-CV-5279(VEC),2018 WL 3991497, at *2(S.D.N.Y.
Aug. 20,2018)(quoting 8 U.S.C. § 1225(a)(1),(b)). These individuals are often labeled as "arriving aliens," a phrase that has been defined to include, inter alia,"an applicant for admission coming or attempting to come into the United States at a port-of-entry." 8 C.F.R. § 1001.l(q). Section 1225(b)(1) "applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation" and "certain other aliens designated by the Attorney General in his discretion," while § 1225(b)(2) generally "serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1)." Jennings, 138 S. Ct. at 837.
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Section 1225(b)(1)(A) provides an initial screening process by which an immigration officer determines whether an arriving alien is inadmissible. "Aliens covered by § 1225(b)(1)are normally ordered removed'withoutfurther hearing or review'pursuant to an expedited removal process," id. (quoting 8 U.S.C. § 1225(b)(l)(A)(i)), "unless the alien indicates either an intention to apply for asylum under section 1158 ... or a fear of persecution,"8 U.S.C. § 1225(b)(l)(A)(i). Ifan arriving alien indicates an intent to apply for asylum or a fear of persecution, the immigration officer "shall refer the alien for an interview by an asylum officer." Id. § 1225(b)(l)(A)(ii). "If the [asylum] officer
determines at the time of the interview that an alien has a credible fear of
persecution ..., the alien shall be detained for further consideration ofthe application for asylum." Id. § 1225(b)(l)(B)(ii).
The asylum-seekers who compose the subclass are detained pursuant to 8 U.S.C. § 1225(b)(l)(B)(ii). Because § 1225(b) does not require Respondents to afford bond hearings after six months of immigration detention, see Jennings, 138 S. Ct. at 842-46, "[t]he only statutory mechanism for release from § 1225(b) custody is found in 8 U.S.C. § 1182(d)(5)(A)," Perez, 2018 WL 3991497, at *2. Under that provision, an individual detained pursuant to § 1225(b)can be paroled "into the United States temporarily" by the Attorney General "in his discretion." 8 U.S.C. § 1182(d)(5)(A).
B. The Decertification of a Certified Class
"[CJertifications are not frozen once made." Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 479 n.9 (2013). "An order that grants or denies class certification may be altered or amended before final judgment." Fed. R. Civ. P. 23(c)(1)(C). "[A]
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district court may decertify a class if it appears that the requirements ofRule 23 are not in fact met." Sirota v. Solitron Devices, Inc.,673 F.2d 566,572(2d Cir. 1982);see Monaco V. Stone, 187 F.R.D. 50, 59(E.D.N.Y. 1999)("A class may be decertified if later events demonstrate that the reasons for granting class certification no longer exist or never existed.").
"Rule 23(c)(1)(C)requires courts to reassess... class rulings as the case develops, and to ensure continued compliance with Rule 23's requirements." Amara v. CIGNA Corp., 775 F.3d 510,520(2d Cir. 2014)(quotation and citation omitted). "'In opposing [a]decertification motion,' as in the original class certification analysis,plaintiffs'retain[] the burden to demonstrate that these requirements were satisfied' by a preponderance of the evidence." Rodriguez v. It's Just Lunch Int'l, No. 07-CV-9227 (SHS), 2018 WL 3733944,at *2(S.D.N.Y. Aug.6,2018)(alterations in original)(quoting Mazzei v. Money Store, 829 F.3d 260, 270 (2d Cir. 2016)). In general, a court "may not disturb its prior findings absent some significant intervening event, or a showing ofcompelling reasons to reexamine the question." Doe v. Karadzic, 192 F.R.D. 133, 136-37 (S.D.N.Y. 2000) (quotations and citation omitted);see Mazzeiv. MoneyStore,308F.R.D.92,106(S.D.N.Y. 2015)(same), ajf'd, 829 F.3d 260 (2d Cir. 2016). "Compelling reasons 'include an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Gulino v. Bd. ofEduc. ofCity Sch. Dist. ofCity ofN.Y.,907 F. Supp. 2d 492,504(S.D.N.Y. 2012)(quoting Doe, 192 F.R.D. at 137), affd sub nom. Gulino v. Bd. ofEduc. ofN.Y.C. Sch. Dist. ofCity ofN.Y,555 F. App'x37(2d Cir. 2014).
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C. The Bond Hearing Requirement Before Jennings Atthe time this Court granted the preliminary injunction,the Ninth Circuit required bond hearings to be held for aliens detained pursuant to 8 U.S.C. § 1226(c) and 8 U.S.C. § 1225(b),as a matter ofstatutory interpretation. See Rodriguez v. Rabbins,!\5 F.3d 1127, 1133 (9th Cir. 2013). Moreover, the Second Circuit had adopted the Ninth Circuit's
approach—at least as it pertained to aliens detained pursuant to § 1226(c)—and imposed a bright-line rule that those alien detainees be afforded a bond hearing after six months of immigration detention. See Lara v. Shanahan, 804 F.3d 601,616(2d Cir. 2015)("[I]n order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuantto section 1226(c)must be afforded a bail hearing before an immigration judge within six months ofhis or her detention."), cert, granted,judgment vacated, 138 S. Ct. 1260 (2018). Furthermore, as the Court recognized when it granted the preliminary injunction in this case, a majority of district courts in this Circuit applied Lara and Rodriguez to impose a six-month bond hearing requirement in favor of arriving aliens detained pursuant to § 1225(b). Abdi,280 F. Supp.3d at 392-93.
In granting Petitioners' request for injunctive relief,this Court discerned persuasive reasons to apply the rationale endorsed by these courts to the subclass at issue. In addition, the Court concluded that class certification was likely, id. at 401, and ultimately the Court certified the subclass,Abdi,323 F.R.D. 131. Accordingly,the Court ordered Respondents to afford a bond hearing in all instances where an asylum-seeker had demonstrated a credible fear of persecution or torture, was detained at the Buffalo Federal Detention Facility, and had been held in immigration detention for six months or more. Abdi,280 F.
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Supp. 3d at 411. This temporal bright-line rule was the linchpin to the Court's conclusion that individualized bond hearings could be applied "across-the-board to each putative class member,"id. at403 n.lO,separating those entitled to a bond hearing from those who were
not.
D. The Bond Hearing Requirement After Jennings
Jennings held that § 1225(b) does not contain an implicit six-month time limit at which point a bond hearing must be held, thus eliminating the statutory six-month brightline rule formulated in Rodriguez and adopted by Lara. 138 S. Ct. at 844. As a result,the Supreme Court subsequently granted certiorari in Lara, vacated the judgment, and remanded the case for"further consideration"in light ofits decision m Jennings. Shanahan V. Lara, 138 S.Ct. 1260(2018). On remand,the Second Circuit dismissed the case as moot because the petitioner in that matter had been granted a cancellation ofremoval. See Lara V. Shanahan,719 F. App'x 79,80(2d Cir. 2018).
The Second Circuit has not addressed,^o?X-Jennings and post-Lora,the standard to be utilized by courts in addressing procedural due process claims for aliens detained in the immigrant habeas context. However,the overwhelming majority ofdistrict courts within the Circuit to have addressed the issue in the context of8 U.S.C.§ 1226(c)—^pertaining to the detention of criminal aliens—have adopted a case-by-case approach where "courts
examine each individual's detention circumstances to determine whether it has become
'unreasonable or unjustified.'" Cabral v. Decker, 331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018)(quoting Demore v. Kim,538 U.S. 510,532(2003)). The case-by-case approach is an "as-applied, fact-based analysis . .. derived from the Supreme Court's decisions in
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\Zadvydas v. Davis, 533 U.S. 678 (2001)] and Demore." Sajous v. Decker, No. 18-CV2447(AJN),2018 WL 2357266, at *10(S.D.N.Y. May 23,2018);.see Gomes Herbert v. Decker,No. 19-CV-760(JPO),2019 WL 1434272, at *2(S.D.N.Y. Apr. 1,2019)(noting that the Sajous framework has been "overwhelmingly adopted" in the Southern District of New York (quotation omitted)); Dukuray v. Decker, No. 18 CV 2898 (VB), 2018 WL 5292130,at *3(S.D.N.Y.Oct.25,2018)(same); c.f. Hechavarria v. Sessions,No.15-CV1058,2018 WL 5776421, at *7-9(W.D.N.Y. Nov. 2,2018)(utilizing both a multi-factor test and the traditional procedural due process analysis articulated in Mathews v. Eldridge, 424 U.S. 319 (1976)), enforcement granted sub nom. Hechavarria v. Whitaker, 358 F. Supp. 3d 227 (W.D.N.Y. 2019); Joseph v. Decker, No. 18-CV-2640(RA), 2018 WL 6075067, at *10 n.7 (S.D.N.Y. Nov. 21, 2018)(concluding that "[t]he Mathews test is consistent with the approach of . . . considering immigration-specific factors for the procedural due process analysis," and the majority of courts in this Circuit seem to have adopted the fact-based inquiry approach), appeal withdrawn. No. 19-245, 2019 WL 3334802(2d Cir. May 1,2019).
The factors set forth by district courts in this Circuit for a court to consider in determining whether an alien's length ofdetention has become unreasonable or unjustified in the § 1226(c)context can be summed up as follows:
(1) the length of time the petitioner has been detained; (2) the party responsible for the delay;(3)whether the petitioner has asserted defenses to removal;(4)whether the detention will exceed the time the petitioner spent in prison for the crime that made him removable;(5)whether the detention facility is meaningfully different from a penal institution for criminal detention;(6)the nature ofthe crimes committed by the petitioner; and(7) whether the petitioner's detention is near conclusion.
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Cabral, 331 F. Supp. 3d at 261. These factors require consideration of multiple variables in determining whether a detainee has been held for an unreasonably lengthy period of time. While "detention that has lasted longer than six months is more likely to be 'unreasonable,' and thus contrary to due process, than detention of less than six months," Sajous, 2018 WL 2357266, at *10, "the sheer length of the proceedings is not alone determinative of reasonableness," Vallejo v. Decker, No. 18-CV-5649(JMF), 2018 WL 3738947,at *3(S.D.N.Y.Aug.7,2018)(quoting Youngv. Aviles,No.15-CV-4545(JMF), 2015 WL4579204,at*1(S.D.N.Y.July 29,2Q\5)),appeal withdrawn,^Ao. 18-2881,2019 WL 1503029(2d Cir. Mar.25,2019). For example,while'"aliens should not be punished for pursuing avenues of relief and appeals[,]' ... evidence of bad faith delays may cut against them." Hernandez v. Decker,No. 18-CV-5026(ALC),2018 WL 3579108, at *7 (S.D.N.Y. July 25,2018)(first alteration in original)(quoting Sopo v. U.S. Attorney Gen., 825 F.3d 1199, 1218 (11th Cir. 2016), vacated, 890 F.3d 952 (11th Cir. 2018)), appeal withdrawn.No. 18-2824,2019 WL 1377025(2d Cir. Feb.5,2019).
Some district courts in this Circuit have also applied the multi-factor test to aliens detained pursuant to § 1225(b) and concluded that due process requires an individualized bond hearing. See, e.g., Lett v. Decker, 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018) (applying factors set forth in Sajous to conclude that the petitioner's detention for nearly 10 months pursuant to § 1225(b) without a bond hearing was unreasonable and unconstitutional as applied to him),appealfded.Case No.18-3714(2d Cir.Dec. 11,2018); Perez,2018 WL 3991497,at *4-5(applying factors set forth in Sajous to conclude that the petitioner's detention for nearly a year pursuant to § 1225(b) without a bond hearing was
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unreasonable and unconstitutional as applied to him);see also Wang v. Brophy,Case # 17CV-6263-FPG,2019 WL 112346, at *3(W.D.N.Y. Jan. 4,2019)(holding that detention pursuant to § 1225(b) for two years without a bond hearing was unreasonable and unconstitutional as applied to petitioner), appeal dismissed, 2019 WL 4199901 (2d Cir. Aug. 1,2019);Kouadio v. Decker,352 F. Supp.3d 235,241(S.D.N.Y.2018)(holding that detention pursuant to § 1225(b) for 34 months without a bond hearing violated the petitioner's due process rights). However, some district courts have concluded that due process does not require a bond hearing for aliens detained pursuant to § 1225(b)and the procedure for discretionary parole pursuant to 8 U.S.C. § 1182(d)(5)(A) is sufficient to satisfy any due process concerns. See Alexandre v. Decker, No. 17 Civ. 5706 (GBD) (KHP),2019 WL 1407353, at *5(S.D.N.Y. Mar. 28,2019)(parole process pursuant to 8 U.S.C. § 1182(d)(5)(A) satisfied due process for alien detained pursuant to § 1225(b)); Poonjani v. Shanahan, 319 F. Supp. 3d 644, 648-49(S.D.N.Y. 2018)(holding that due process did not afford alien detained pursuant to § 1225(b) a bond hearing; rather due process "is whatever procedure has been 'authorized by Congress'" which in the case of the petitioner was parole at the discretion ofthe Attorney General). At least one court in this district has concluded that while due process does not require an individualized bond hearing for an alien detained pursuantto§ 1225(b),the petitioner was entitled to"a rigorous custody review" that mandated more than parole review in the discretion ofthe Attorney General. Clerveaux v. SearIs, No. 18-CV-l 131,2019 WL 3457105,at *15-17(W.D.N.Y. July 31,2019).
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E. The Six-Month Bright-Line Rule Is No Longer Viable Prior to Jennings, most courts in this Circuit concluded that after six months an individualized bond hearing was statutorily required for aliens detained pursuant to § 1226(c) or § 1225(b). However, at least in the context of aliens detained pursuant to § 1226(c),that six-month hard-and-faststatutory rule has been replaced by a malleable and flexible due process analysis. See Lanlrford v. Idaho, 500 U.S. 110, 121 (1991)("Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process ofadjustment inescapably involving the exercise ofjudgment by those whom the Constitution entrusted with the unfolding of the process." (quoting Joint Anti-Fascist Refugee Comm. v. McGrath,341 U.S. 123, 163(1951)(Frankfurter, J., concurring))). The law is unsettled as to whether due process may require individualized bond hearings for those detained pursuantto § 1225(b). Butassuming arguendo for purposes ofthis Decision and Order that it does,the six-month bright-line rule that this Court relied upon in granting its preliminary injunction and certification ofthe subclass is no longer viable. The Court is not unsympathetic to the circumstances confronting the subclass members and does not quarrel with Petitioners' contention that "[s]ix months is a significant amount oftime to spend incarcerated." (Dkt.99 at 27);see Muniz v. Hoffman, 422 U.S.454,477(1975)("It is not difficult to grasp the proposition that six months injail is a serious matter for any individual...."); see also Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 477 (3d Cir. 2015)(nine months in civil immigration detention "strain[s]any common-sense definition ofa limited or briefcivil detention"),abrogated in partand on other grounds by Jennings, 138 S. Ct.830;see generally Guerrero-Sanchez v.
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Warden York Cty. Prison, 905 F.3d 208, 220 n.9 (3d Cir. 2018)("[T]he reality is that merely calling a confinement'civil detention' does not,ofitself, meaningfully differentiate it from penal measures." (quotation and original alteration omitted)). According to Petitioners' undisputed factual submissions, "the mental health of [asylum-seeker] detainees deteriorates over time and substantially worsens after detention of greater than six months." (Dkt. 100 at 15). Petitioners have also submitted unrefuted evidence suggesting that even when asylum claims are diligently pursued, they may "easily take more than six months" before reaching a conclusion. {See Dkt.99-2 at T|20).
It may very well be the case that an individualized due process analysis would require a bond hearing for the majority of asylum-seekers who form the subclass after six months of immigration detention. Nonetheless, other than identifying "bright-line constitutional rules" in different—and inapposite—"custodial and detention contexts," Petitioners have failed to explain why the flexible notions of due process categorically require a bond hearing after the passage of six months' time. While certain principles arising out of criminal jurisprudence may be somewhat analogous to civil immigration detention, the cases relied upon by Petitioners do not compel the conclusion that a sixmonth bright-line rule is mandated by the Constitution. Cf. Maryland v. Shatzer,559 U.S. 98,111-12(2010)(holding that where a defendant"has been out ofcustody for two weeks before the contested interrogation, the court is spared the fact-intensive inquiry into whether he ever,anywhere,asserted his Miranda right to counsel"); County ofRiverside v. McLaughlin, 500 U.S. 44, 56 (1991)(holding that "judicial determinations of probable cause within 48 hours ofarrest will, as a general matter," be sufficiently prompt for Fourth
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Amendment purposes);Baldwin v. New York,399 U.S.66,70-74(1970)(holding that the Sixth Amendmentrequires ajury trial for any crimes punishable by imprisonment for more than six months). Indeed, the six-month rule in Baldwin was "based on 'the existing laws and practices in the Nation' with regard to jury trials," Reid v. Donelan, 390 F. Supp. 3d 201,218(D. Mass. 2019)(quoting Baldwin, 399 U.S. at 70), appealsfiled, No. 19-1787 (1st Cir. Aug. 13, 2019), No. 19-1900 (1st Cir. Sept. 23, 2019); Baldwin, 399 U.S. at 71-72 (stating that with "few exceptions, crimes triable without a jury in the American States since the late 18th century were also generally punishable by no more than a sixmonth prison term," and that "[i]n the entire Nation, New York City alone denies an accused the right to interpose between himself and a possible prison term of over six months, the commonsense judgment of a jury of his peers"), and Petitioners "provide no reason why this historically based six-month cutoffshould apply to the materially different context ofimmigration detention,especially given Congress's unique authority to legislate with regard to aliens," Reid,390 F. Supp. 3d at 218(citing Demore,538 U.S. at 521). In other words,the holdings in the cases relied upon by Petitioners have little bearing on how long civil immigration detention may continue absent an opportunity for bail without offending due process principles.
Understandably, "bright-line rules provide clear guidance and ease of administration to government officials." Lara, 804 F.3d at 615. Petitioners are not incorrect in identifying this advantage to a six-month bond hearing requirement. See, e.g., Shatzer, 559 U.S. at 110 ("[L]aw enforcement officers need to know, with certainty and beforehand,when renewed interrogation is lawful."); McLaughlin,500 U.S.at 55-56("[l]t
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is not enough to say that probable cause determinations must be 'prompt.' This vague standard simply has not provided sufficient guidance."). However,a bright-line rule would constrict the flexibility inherent to a due process inquiry and is inconsistent with the Supreme Court's teachings in Jennings. See Cabral, 331 F. Supp. 3d at 260("While the Supreme Court left open the issue of what requirements are imposed by the Due Process Clause ofthe Fifth Amendment,it would be inconsistent with the discussion ofdue process in Jenningsto find a due process requirementofan automatic bond hearing after a detention ofsix months. Rather,the Supreme Court stressed the flexible nature ofthe Due Process Clause."(citation omitted)); see also United States v. Salerno,481 U.S. 739, 748(1987) (rejecting the "categorical" conclusion that "the Due Process Clause prohibits pretrial detention on the ground of danger to the community as a regulatory measure, without
regard to the duration of the detention" in favor of a balancing analysis between "the Government's regulatory interest in community safety" and "an individual's liberty
interest"(quotation omitted)). Therefore, because the Supreme Court has eliminated the legal basis to
categorically impose a six-month bond hearing requirement in the case of every alien detained pursuant to § 1225(b)(l)(B)(ii), Jennings represents an intervening change in controlling law warranting the reexamination ofthis Court's Decision and Order certifying the subclass pursuant to Rule 23.
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II. The Subclass No Longer Satisfies the Requirements of Rule 23(b)(2)and Must Be Decertified
Respondents' substantive decertification arguments are primarily based upon Rule 23(a)'s commonality requirement and the Supreme Court's decision in Dukes, 564 U.S. 338. Specifically, Respondents argue that because due process is a flexible concept, each subclass member's particular circumstances make uniform disposition of their claims impossible under the class-action device. {See Dkt. 102-1 at 12-15). Petitioners oppose Respondents' motion and argue that Respondents' assertions "ignore[] that whether due process requires bond hearings across the subclass, or only on an individual basis, is a common question in itself." (Dkt. 121 at 23).
In remanding the action, the Jennings Court advised the Ninth Circuit to "consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents' claims in light of the Supreme Court's holding in Dukes. 138 S. Ct. at 851. In Dukes, the Court held that "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not
authorize class certification when each individual class member would be entitled to a
different injunction or declaratory judgment against the defendant." 564 U.S. at 360. Jennings cautioned that because
some members ofthe certified class may not be entitled to bond hearings as a constitutional matter[,]... it may no longer be true that the complained-of "conduct is such that it can be enjoined or declared unlawful only as to all
the class members or as to none ofthem."
138 S. Ct. at 852(citation omitted)(quoting Dukes,564 U.S. at 360).
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Respondents raise similar arguments in their motion papers. They argue that "an individualized fact-specific inquiry" pursuant to the Due Process Clause is not susceptible to the class action device and thus, a single injunctive or declaratory judgment would not provide relieffor each member ofthe subclass. (Dkt. 102-1 at 13). Respondents illustrate this point by arguing that "one particular subclass member may be denied parole and detained beyond six months for reasons that are completely inapplicable to another subclass member." {Id. at 14).
"A class action may be maintained if Rule 23(a) is satisfied and if... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole...." Fed. R. Civ. P. 23(b)(2). "The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—^the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none ofthem." Dukes,564 U.S. at 360(quotation omitted).
Petitioners strenuously contend that the subclass is still viable because any individual factual differences between the asylum-seekers are immaterial in this context as each subclass member is categorically entitled to the same process. {See Dkt. 121 at 24-25). Certainly, whether or not each subclass member is entitled to a bond hearing does not depend upon their individual likelihood of being granted bond, or even, ultimately, being granted asylum. See generally Sajous, 2018 WL 2357266, at *11 (in applying the multifactor test,"[t]he Court need not inquire into the strength of relevant defenses to removal, "it is sufficient to note their existence and the resulting possibility that the [pjetitioner will
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ultimately not be removed, which diminishes the ultimate purpose of detaining the [pjetitioner pending a final determination as to whether he is removable"). However, to conclude that an individual detained pursuant to § 1225(b) is entitled to a bond hearing under due process principles is necessarily a fact-specific and individualized
determination.
In granting certification of the subclass, the Court rejected Respondents' position that an analysis ofeach asylum-seeker's individual circumstances was necessary to afford the subclass the relief it sought. Abdi, 323 F.R.D. at 144. The Court reached this conclusion, in part, because the entitlement to a bond hearing was inextricably tied to each subclass member's time in immigration detention. Id. at 145 ("[The proposed subclass members have no responsibility to justify the availability ofthe bond hearing itself; once the six-month time limit has expired, it becomes Respondents' statutory obligation to hold a hearing....")). The six-month temporal rule endorsed by Lora and Rodriguez was the adhesive that held the subclass together. While it may be possible for Petitioners to demonstrate that some subclass members have been detained for a constitutionally infirm period. Petitioners have not demonstrated that such is the case for all current and future subclass members. Any such determination is no longer automatically triggered by time in custody.
Petitioners contend that Jennings was principally concerned with how Rule 23(b)(2) and Dukes applied to the class at issue in that case, which included "both arriving asylumseekers and lawful permanent residents returning from overseas travel," and not to a class similar to the subclass here, which "includes only [similarly situated] arriving asylum-
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seekers." (Dkt. 121 at 27). This is an overly narrow view of the Supreme Court's admonishment. The Jennings Court believed that Dukes "may be relevant on remand because ...some members ofthe certified class may not be entitled to bond hearings as a constitutional matter." Jennings, 138 S. Ct. at 852. This concern reflects the precise issue raised here: due to the variability and flexibility intrinsic to an individualized due process inquiry,the fact-specific circumstances ofeach alien will dictate whether each is or is not entitled to a bond hearing—assuming that each subclass member enjoys constitutional due process protections. Therefore, because Petitioners have failed to demonstrate that all current and future subclass members are entitled to a bond hearing after a certain period of time, even if some or even a significant majority of subclass members may be entitled to such relief, a single injunction may not issue in favor ofthis subclass. See Dukes,564 U.S. at 360(stating that"Rule 23(b)(2)applies only when a single injunction... would provide reliefto each member ofthe class"(emphases added)).
In the alternative. Petitioners request that the Court issue a declaratory judgment, declaring that continued mandatory immigration detention for six months or more is unconstitutional as applied to each subclass member. However,the viability ofany such declaratory judgment also hinges upon the existence of a six-month bright-line rule. In other words,for this declaratory reliefto apply across-the-board to each subclass member, it is necessary to conclude that the Due Process Clause categorically requires that a bond hearing be held after six months'time in the custody ofimmigration authorities. Because, for the reasons stated above,the Constitution requires no such bright-line rule. Petitioners are unable to maintain a Rule 23(b)(2) class based upon their requested declaratory relief
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for the same reasons that they are unable to do so based upon their requested injunctive relief. See id.(the indivisibility requirement ofRule 23(b)(2)requires that the conduct can be"declared unlawful only as to all ofthe class members or as to none ofthem"(emphasis added)); see also Fed. R. Civ. P. 23(b)(2) (providing that "final injunctive relief or corresponding declaratory relief must be "appropriate respecting the class as a whole").
Petitioners urge the Court to follow Reid v. Donelan,No.CV 13-30125-PBS,2018 WL 5269992(D. Mass. Oct. 23, 2018) and deny Respondents' motion to decertify the subclass. The Reid case upheld the certification of a class of criminal aliens detained pursuant to 8 U.S.C. § 1226(c). In explaining why the class continued to satisfy the commonality requirement for class certification, the court stated:
The Government may ultimately prevail on its merits argument that the Constitution requires an individualized determination of whether an alien's detention has become unreasonable. However, the class still presents the common threshold question of whether their detention after six months without a bail hearing or reasonableness review violates the Constitution. Even ifthe answerto that question is no,the class still meetsthe commonality
requirement. Id. at *5. However, Petitioners' reliance on Reid is misplaced because this Court has
already determined that a six-month bright-line limitation does not survive Jennings.^
It can no longer be said that Respondents are acting in a manner generally applicable
to all members ofthe subclass because while each subclass member has been detained for
six months or longer, the individual circumstances of each asylum-seeker may preclude a
^ In fact, the Reid court subsequently rejected the plaintiffs' arguments in favor of a bright-line six-month bond hearing requirement for criminal aliens detained pursuant to
§ 1226(c). See Reid v. Donelan,390 F. Supp. 3d 201,219(D.Mass.2019).
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finding that Respondents have unconstitutionally prolonged their detention. In other words, even if each subclass members' detention has become "constitutionally suspect" that does not necessarily mean that it has become unconstitutionally prolonged in the absence of an opportunity to post bond. Without the benefit of the six-month temporal limitation, each subclass member's individual detention may be deemed constitutionally infirm at different points in time. Because this result would require multiple court orders or decrees. Rule 23(b)(2) is an inappropriate device to maintain class certification of the subclass as it is presently defined. See Dukes,564 U.S. at 360(stating that Rule 23(b)(2)
"does not authorize class certification when each individual class member would be
entitled to a different injunction or declaratory judgment against the defendant"). Due process is not intended to be applied in a mechanical or rigid fashion.
Determining what process is due requires a case-by-case approach. An individualized inquiry,such as the multi-factor test described above,permits courts to considerthe totality of each detainee's circumstances. The inherent flexibility of this approach is consistent with decades of Supreme Court precedent and the Court's cautionary words in Jennings.
As one Second Circuit decision has held:
Because ofthe possible variance in factual situations,it may well be that[the statute] is unconstitutional as applied to certain members of the purported class and yet may be constitutional as applied to others. Where such a line could be drawn is not readily apparent, and it would be much more appropriate to handle difficult constitutional questions arising from the application of the statute to varying fact-patterns on a case-by-case basis
rather than in a class action.
Dale V. Hahn,440 F.2d 633,640(2d Cir. 1971)(footnote omitted). This rationale applies with equal force to the facts presented here.
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The Court does not mean to suggest that Petitioners are without any remaining recourse. The Court merely holds that the Fifth Amendment's Due Process Clause does not categorically require that bond hearings take place after six months of immigration detention, and that without this prQ-Jennings temporal limitation, the subclass must be decertified pursuant to Rule 23(b)(2) and Dukes. Indeed, other courts confronting similar class-related issues permitted the plaintiffs in those actions to amend their pleadings and class definitions in light ofthe Jennings decision. See Reid,2018 WL 5269992;Rodriguez V. Rabbins, Case No. 2:07-cv-03239-TJH-RNB, Dkt. 514(C.D. Cal. July 10, 2019). In fact,the Reid court issued declaratory class reliefexplaining the constitutional rights ofthe
§ 1226(c)class and granting a permanentinjunction outlining the proceduresto be afforded at any bond hearing held pursuant to that court's decree. See Reid, 390 F. Supp. 3d at
227-28.
Here, Petitioners have sought no such relief. While Petitioners have continuously requested injunctive and declaratory relief under both statutory and constitutional principles(Dkt. 17 at 14-15),the reliefrequested remains tailored for the period when a six-month bright-line rule remained good law in this Circuit. For the reasons outlined
above.Petitioners' allegations are a relic ofa now bygone era. Because the subclass, as currently defined, is no longer certifiable under Rule
23(b)(2) in the absence of a categorical six-month bond hearing requirement, the Court grants Respondents'(Dkt. 102)motion to decertify the subclass and,consequently,vacates that part of the Court's preliminary injunction order which issued in favor of the now decertified subclass. Accordingly, Respondents' motion to vacate the preliminary
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injunction (Dkt. 91) and Petitioners' motion to enforee the preliminary injunction (Dkt. 122) are both denied as moot.
CONCLUSION
For the foregoing reasons.Respondents' motion to decertify the subclass(Dkt. 102) is granted, and the Court vacates that part of its preliminary injunetion order which issued in favor of the now decertified subelass. Respondents' motion to vacate the preliminary injunction (Dkt. 91) and Petitioners' motion to enforce the preliminary injunction (Dkt. 122) are both denied as moot.
SO ORDERED.

Dated:

September 24,2019 Rochester, New York

eliz^etiua: wo
Upitdd States District Judge

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