Case: 1:11-cv-05452 Document #: 4 Filed: 08/11/11 Page 1 of 17 PageID #:25

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO AND MARIA JOSE )

LOPEZ,

)

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs / Petitioners

)

)

v.

)

)

JANET NAPOLITANO, SECRETARY OF THE

)

DEPARTMENT OF HOMELAND SECURITY (DHS);)

JOHN MORTON, DIRECTOR OF U.S.

)

IMMIGRATION AND CUSTOMS ENFORCEMENT )

(ICE) AND ITS OFFICE OF ENFORCEMENT AND )

REMOVAL OPERATIONS (ERO); DAVID C.

)

PALMATIER, UNIT CHIEF, ICE/ERO LAW

)

ENFORCEMENT SUPPORT CENTER (LESC); )

RICARDO WONG, ICE/ERO DIRECTOR,

)

CHICAGO FIELD OFFICE,

)

)

in their official capacities,

)

)

Defendants / Respondents. )

CASE NO:
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

STATEMENT OF THE CASE 1. This complaint presents a challenge to the U.S. Immigration and Customs Enforcement’s (ICE’s) assertion of general authority to instruct federal, state, and local law enforcement agencies (LEAs) to continue to detain individuals in the LEAs’ jails, after no other basis for custody exists, in order for ICE to investigate their immigration status and possibly assume direct physical custody. ICE’s statutory authority to issue detainers, without an arrest warrant, is limited. 8 U.S.C. § 1357(d); 8 U.S.C. § 1226(c); 8 U.S.C. 1357(a). As set forth below, ICE’s exercise of detainer authority, however, regularly exceeds its statutory authority. In addition, ICE’s conscription of state and

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local LEAs to detain individuals for civil immigration purposes violates separation of powers limits under the Tenth Amendment. Finally, the extended detention, unsupported by probable cause, that ICE’s detainers cause plaintiffs and those similarly situated to them violates their rights under the Fourth and Fifth Amendments and/or entitle them to habeas relief.
2. A detainer lodged by ICE instructs an LEA to detain an individual after the period for the agency’s lawful custody over the individual has expired while ICE assesses whether the individual is subject to removal proceedings and whether it will assume direct, physical custody.
3. The named plaintiffs in this case, Jose Jimenez Moreno and Maria Jose Lopez (hereinafter “Plaintiffs/Petitioners”), are individuals being held by LEAs, against whom ICE has placed immigration detainers, without lawful authority or any legal basis to do so. The Defendants in this case are federal officials responsible for ICE’s issuance of detainers, named because their inclusion is potentially required to effectuate the forms of relief this complaint requests.
4. As to each Plaintiff/Petitioner, ICE has justified the detainer it has placed on them based solely on its initiation of an investigation to determine whether they are subject to removal from the United States. ICE has not accompanied any of the Plaintiffs/Petitioners’ detainers with an administrative arrest warrant, a Notice to Appear or other charging document, or a final removal order. ICE does not require notice of the immigration detainer to Plaintiffs/Petitioners. Moreover, ICE has not provided the Plaintiffs/Petitioners with a means to challenge the immigration detainers lodged against them.
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5. Plaintiffs/Petitioners seek on their behalf and similarly situated individuals, who have immigration detainers lodged against them that were issued from ICE’s Chicago Area of Responsibility (AOR) including its sub-offices, declaratory and injunctive relief under the Administrative Procedures Act, 5 U.S.C. §706(a), under the Fourth, Fifth and Tenth Amendments for the ongoing violation of their rights, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and Bond v. United States, 131 S.Ct. 2355 (June 16, 2011), or, in the alternative, habeas corpus relief.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 because it arises under the Constitution and laws of the United States. 7. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure. 8. This Court has authority to grant injunctive relief in this action pursuant to 5 U.S.C. § 702, and Rule 65 of the Federal Rules of Civil Procedure. 9. Alternatively, this Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 2241, as the issuance of a detainer requiring or requesting detention places the Plaintiffs/Petitioners in a form of custody. 10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to Plaintiffs/Petitioners’ claims occurred, and continue to occur, in this District. 11. Venue is proper in this judicial district because the principal custodian of the Plaintiffs/Petitioners (i.e., the individual under whose authority the detainer was
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issued) is located in this District, such that this Court has jurisdiction over the Plaintiffs/Petitioners’ custodian.
PARTIES 12. Plaintiffs/Petitioners are individuals against whom federal immigration officials have issued immigration detainers (Form I-247). The sole stated basis of their detainers is that ICE has initiated an investigation into their removability from the United States, requiring an LEA to maintain custody of the Plaintiffs/Petitioners for up to 48 hours, excluding weekends and federal holidays, after their LEA authority expires, so that ICE can assume physical custody. ICE did not require that Plaintiffs/Petitioners be given notice of the immigration detainers nor has it provided a means by which to challenge the lawfulness of the detainers. Plaintiffs/Petitioners immigration detainers were issued from the ICE Chicago AOR. 13. Plaintiff/Petitioner Jose Jimenez Moreno is a 34-year old United States citizen who is being detained at the Winnebago County Jail in Illinois with an ICE I-247 immigration detainer lodged against him. Mr. Jimenez was arrested on March 21, 2011 in Rockford, Illinois. Without ever interviewing or speaking to him, ICE issued an immigration detainer against Mr. Jimenez on March 22, 2011. To date, ICE has never had contact with Mr. Jimenez. Because of his detainer, at the end of his term of lawful custody, Mr. Jiminez is unlawfully subject to being held an additional 48 hours or more in the custody of the Winnebago County Jail when, but for the detainer, he would otherwise be released. 14. Plaintiff/Petitioner Maria Jose Lopez is a 29-year old Legal Permanent Resident who is being detained at the Federal Correctional Institution in Tallahassee,
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Florida (FCI-Tallahassee) with an ICE I-247 immigration detainer lodged against her. Ms. Lopez came to the United States at the age of four and is the mother and primary caregiver to her 3 minor United States children. In November 2010, Ms. Lopez pled guilty to “misprision of a felony” a non-removable offense for immigration purposes. Ms. Lopez was permitted to self-surrender on January 25, 2011. Without ever interviewing or speaking to her, the ICE Chicago AOR issued an immigration detainer against her on February 1, 2011. No later than March 22, 2011, FCI-Tallahassee informed ICE that Ms. Lopez was convicted of “misprision of a felony”—a nonremovable offense. To date, ICE has never had contact with Ms. Lopez. Because of her detainer, at the end of her term of lawful custody, Ms. Lopez is unlawfully subject to being held an additional 48 hours or more in the custody of FCI-Tallahassee when, but for the detainer, she would otherwise be released.
15. Defendant Janet Napolitano is the Secretary for the Department of Homeland Security (DHS), which houses the office of Immigration and Customs Enforcement (ICE) and ICE’s division of Enforcement and Removal Operations (ERO), the entities which issue the I-247 immigration detainers to federal, state and local law enforcement. Secretary Napolitano is ultimately responsible for how immigration regulations are applied and the approval of the use of the standard I-247 detainer form under which authority the Plaintiffs/Petitioners are detained.
16. Defendant John Morton is the Director of Immigration and Customs Enforcement for DHS. As part of Director Morton’s responsibilities, he establishes immigration detainer policy for ICE and its subdivisions, including the application of the
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detainer regulations and approval of the use of the standard I-247 detainer form under which authority the Plaintiffs/Petitioners are detained.
17. Defendant David C. Palmatier, based on information and belief, is the Unit Chief for ICE/ERO’s Law Enforcement Support Center (LESC) located in Vermont. In his official capacity, Chief Palmatier oversees the issuance of thousands of immigration detainers out of the LESC pursuant to law enforcement inquiries from throughout the United States. Based on information and belief, LESC is listed as the ICE custodian on detainers issued from the LESC and is listed as emergency custodian for many detainers issued from ICE/ERO Field Offices, including Chicago AOR.
18. Defendant Ricardo Wong is the Field Office Director (FOD) of the ICE/ERO Chicago AOR Field Office, which has responsibility for Illinois, Indiana, Wisconsin, Missouri, Kentucky, and Kansas. In his official capacity, FOD Wong has ultimate responsibility for all immigration detainers issued out of the Chicago AOR, including its sub-offices and the ICE Detention Enforcement and Processing Offender by Remote Technology (DEPORT) center. Based on information and belief, the Chicago Field Office is listed as the principal ICE custodian on detainers issued out of its area of responsibility.
FACTUAL ALLEGATIONS 19. Pursuant to 8 U.S.C. § 1103(a), DHS, through its division of ICE, has the authority to issue immigration detainers in accordance with the intent and requirements of the Immigration and Nationality Act (INA). 20. Plaintiffs/Petitioners were all stopped or arrested by LEAs. Based on information and belief, the LEAs had communications with ICE and then ICE issued
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standard form I-247 detainers against the Plaintiffs/Petitioners. See Ex. A (Plaintiffs/Petitioners’ ICE I-247 detainer forms). On the I-247 immigration detainers issued against the Plaintiffs/Petitioners, ICE officials justify continued detention of the Plaintiffs/Petitioners on the sole grounds that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” ICE’s detainers against the Plaintiffs/Petitioners instruct the LEAs that:
[f]ederal regulations (8 CFR 287.7) request that you [LEA] detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for ICE to assume custody of the alien. You may notify ICE by calling [local ICE/ERO Field Office telephone number] during business hours or [typically ICE Law Enforcement Support Center telephone number] after hours in an emergency.
21. None of the Plaintiffs/Petitioners’ I-247 immigration detainers were issued pursuant to a Notice to Appear (NTA) or other charging document, warrant of arrest in removal proceedings, or a deportation order.
22. The I-247 detainer form does not require notice of the immigration detainers to the Plaintiffs/Petitioners. Based on information and belief, ICE never required the LEAs to provide the Plaintiffs/Petitioners with notice of the detainers lodged against them nor does ICE have a written policy or procedure requiring that the Plaintiffs/Petitioners and similarly situated individuals be provided notice of immigration detainers lodged against them.
23. ICE does not provide an administrative procedure for challenging the issuance of a detainer. Likewise, the Board of Immigration Appeals (BIA) has ruled that it does not have jurisdiction to consider challenges to detainers because it has found that individuals held on detainers are not in federal immigration custody. Matter of Sanchez, 20 I. & N. Dec. 223, 225 (BIA 1990).
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24. The I-247 detainer form states that ICE “requests”1 that the LEA detain the individual for an additional 48 hours, excluding weekends and holidays, so ICE can assume direct, physical custody of the individual. However, the regulation cited on the I247 detainer form mandates that the LEAs detain the individual on ICE’s behalf. The regulation states: “such [criminal justice] agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [ICE].” 8 C.F.R. § 287.7(d)(emphasis added).
CLASS ACTION ALLEGATIONS 25. Pursuant to Fed. R. Civ. P. 23(b)(1), (b)(2) and/or (c)(4), Plaintiffs/Petitioners, Jose Jimenez Moreno and Maria Jose Lopez, seek to represent a class consisting of: All current and future persons against whom ICE has issued an immigration detainer out of the Chicago AOR where ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA’s authority has expired and where ICE has indicated that the basis for the further detention is that ICE has initiated an investigation into the persons’ removability, but not including any noncitizen subject to mandatory detention under 8 U.S.C. § 1226(c). 26. In addition, Plaintiff/Petitioner, Jose Jimenez Moreno, seeks to represent a sub-class, which consists of the persons described in paragraph 25, who have had detainers lodged against them while they are in state or local LEA custody where ICE has instructed their further detention pursuant to 8 C.F.R. § 287.7. The sub-class alleges that this violates their rights under the Tenth Amendment to the U.S. Constitution. 27. The Plaintiffs/Petitioners’ class seeks declaratory and injunctive relief to eliminate or remedy Defendants’ application of immigration detainer regulations,
1 From 1997 to August 2010, the I-247 detainer form stated that it was required by 8 CFR 287.7 that the LEA detain the individual for an additional 48 hours in order for ICE to assume physical custody of the individual. See Ex. B. (example of prior detainer form).
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policies, practices, acts, and omissions that are depriving Plaintiffs/Petitioners of their liberty in violation of their rights.
28. The proposed ICE Detainer Class and Sub-Class are very numerous. In FY2009, at least 223,297 individuals detained by ICE (approximately 60% of ICE’s FY2009 detention population) were first stopped, arrested, or criminally convicted by LEAs. See ICE, Dr. Dora Schriro, Special Advisor to Secretary Napolitano on ICE/DRO, “Immigration Detention Overview and Recommendations,” pp. 11-12 (Oct. 6, 2009). Based on data obtained through a FOIA request, Plaintiffs/Petitioners believe that ICE issued 270,988 immigration detainers in FY2009 and 201,778 detainers through the first eleven months of FY2010.
29. Joinder of all class members is also impracticable. Because ICE continuously lodges immigration detainers against individuals and assumes physical custody of those held on immigration detainers, the membership of the class changes constantly.
30. All individuals who would fall within the class definition have equally had ICE detainer regulations, policies, practices, acts and omissions applied against them causing unlawful deprivation of liberty in violation of their rights. There are questions of law or fact common to all class and sub-class members, including but not limited to:
 Whether Defendants have exceeded their constitutional and/or statutory authority (APA 5 U.S.C. § 706(2)) in placing detainers on class members, including whether promulgation of 8 C.F.R. § 236.1(a) and 8 C.F.R. § 287.7 exceed Defendants’ statutory authority;
 Whether Defendants’ issuance of an immigration detainer instructing further detention based on the initiation of an investigation to determine whether the class member is removable violates the Fourth Amendment;
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 Whether Defendants’ issuance of an immigration detainer without a prior or concurrent service of a Notice to Appear or other charging document, an administrative arrest warrant, an order of deportation, or compliance with 8 U.S.C. § 1357(a)(2) violates the Fourth Amendment;
 Whether Defendants’ issuance of an immigration detainer without providing or requiring notice to class members violates the Fifth Amendment;
 Whether Defendants’ issuance of an immigration detainer without providing class members a means of challenging detainers violates the Fifth Amendment; and
 Whether Defendants’ issuance of immigration detainers compelling state and local LEAs to detain sub-class members, pursuant to 8 C.F.R. § 287.7(d) and in furtherance of a federal regulatory program, violates the Tenth Amendment to the U.S. Constitution.
31. Given the commonality of the questions shared by all class members,
prosecuting separate claims as to individual class members would establish incompatible
standards of conduct for the Defendants and the adjudications as to individual class
members’ claims would be dispositive of the interests of other class members and thus
would substantially impair their ability to protect their interests.
32. Defendants have acted and intend to act in a manner adverse to the rights
of the proposed class, making final injunctive and declaratory relief appropriate with
respect to the class as a whole.
33. Plaintiffs/Petitioners and the class and sub-class they seek to represent
have been directly injured by the Defendants’ statutory and constitutional violations in
the application of detainer regulations, policies, practices, acts and omissions and are at
risk of future harm from continuation of these regulations, policies, practices, acts and
omissions.
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34. Plaintiffs/Petitioners will fairly and adequately represent the interests of ICE Detainer Class and Sub-Class. Plaintiffs/Petitioners legal claims are typical to all members of the proposed ICE Detainer Class and Sub-Class. Plaintiffs/Petitioners have no interests separate from those of the ICE Detainer Class and Sub-Class, and seek no relief other than the relief sought on behalf of the class.
35. Plaintiffs/Petitioners’ counsel are experienced in class action, civil rights, and immigrants’ rights litigation. Plaintiffs/Petitioners’ counsel will fairly and adequately represent the interests of ICE Detainer Class and Sub-Class.
FIRST CLAIM FOR RELIEF (Violation of 5 U.S.C. §§ 706(2)(A)—(D)) 36. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 35. 37. Defendants’ failure to restrict its issuance of detainers to its authority under the INA causes Plaintiffs/Petitioners significant prejudice by depriving them of their liberty. 38. Defendants’ failure to issue detainers in accordance with due process protections required by the relevant provisions of the INA (8 U.S.C. § 1226(a), 8 U.S.C. § 1357(a)(2) and 8 U.S.C. § 1357(d)) causes Plaintiffs/Petitioners significant pain and suffering by depriving them of their liberty. 39. Defendants’ application of the immigration detainer regulations and issuance of detainers against the Plaintiffs/Petitioners exceeds the Defendants’ constitutional and statutory authority in violation of 5 U.S.C. §§ 706(2)(A)—(D). 40. As a proximate result of Defendants’ statutory and constitutional violations, Plaintiffs/Petitioners are suffering and will continue to suffer a significant
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deprivation of their liberty without due process of law. Plaintiffs/Petitioners have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiffs/Petitioners is necessary to prevent continued and future injury.
SECOND CLAIM FOR RELIEF (Violation of the Fourth Amendment to the U.S. Constitution) 41. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 40. 42. Defendants’ issuance of immigration detainers based solely on the initiation of an investigation into the Plaintiffs/Petitioners’ removability from the United States causes the Plaintiffs/Petitioners prejudice by unreasonably taking away, limiting, and otherwise impacting their liberty without probable cause in violation of the Fourth Amendment. 43. Defendants’ warrantless arrest of Plaintiffs/Petitioners through the issuance of detainers without providing a prompt hearing to determine whether Defendants have probable cause unreasonably deprives them of liberty without probable cause in violation of the Fourth Amendment. 44. Defendants’ detainer regulations, policies, practices, acts and omissions cause unreasonable deprivation of Plaintiffs/Petitioners’ liberty in violation of the Fourth Amendment to the United States Constitution. 45. As a proximate result of Defendants’ unconstitutional detainer regulations, policies, practices, acts, and omissions, Plaintiffs/Petitioners are suffering and will continue to suffer an unreasonable deprivation of their liberty. Plaintiffs/Petitioners have no plain, adequate or complete remedy at law to address the wrongs described herein.
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The injunctive and declaratory relief sought by Plaintiffs/Petitioners is necessary to prevent continued and future injury.
THIRD CLAIM FOR RELIEF (Violation of the Fifth Amendment to the U.S. Constitution) 46. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 45. 47. Defendants’ issuance of immigration detainers based solely on the initiation of an investigation into the Plaintiffs/Petitioners’ removability from the United States causes the Plaintiffs/Petitioners significant pain and suffering by depriving them of their liberty without due process of law. 48. Defendants’ issuance of immigration detainers without requiring that Plaintiffs/Petitioners receive effective notice of the detainer causes the Plaintiffs/Petitioners to suffer substantial prejudice without affording them an opportunity to be heard prior to the deprivation. 49. Defendants’ failure to provide any mechanism by which the Plaintiffs/Petitioners may challenge the issuance of a detainer against them causes the Plaintiffs/Petitioners substantial prejudice by depriving them of their liberty without due process of law. 50. Defendants’ detainer regulations, policies, practices, acts and omissions cause significant deprivations of Plaintiffs/Petitioners’ liberty without due process of law in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. 51. As a proximate result of Defendants’ unconstitutional detainer regulations, policies, practices, acts, and omissions, Plaintiffs/Petitioners are suffering and will
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continue to suffer a significant deprivation of their liberty without due process of law. Plaintiffs/Petitioners have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiffs/Petitioners is necessary to prevent continued and future injury.
FOURTH CLAIM FOR RELIEF (Violation of the Tenth Amendment to the U.S. Constitution) 52. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 51. 53. Defendants’ issuance of detainers compelling state and local LEAs to detain Plaintiff/Petitioner, Jose Jimenez Moreno, in enforcement of a federal regulatory program, as required under federal regulation 8 C.F.R. § 287.7, causes the Plaintiff/Petitioner significant pain and suffering by depriving him of his liberty. 54. Defendants’ detainer regulations, policies, practices, acts and omissions compelling and conscripting state and local LEAs to enforce a federal regulatory program is a violation of the Plaintiff/Petitioner’s rights under the Anti-Commandeering Principle of the Tenth Amendment of the United States Constitution. 55. As a proximate result of Defendants’ unconstitutional conscription of state and local LEAs, Plaintiff/Petitioner is suffering and will continue to suffer a significant deprivation of his liberty. Plaintiff/Petitioner has no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiff/Petitioner is necessary to prevent continued and future injury.
FIFTH CLAIM FOR RELIEF (Petition for Writ of Habeas Corpus)
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56. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 55.
57. This claim for relief is brought as an alternative to the first four claims for relief, above, in the event the court were to rule that the proper or only vehicle for relief is by writ of habeas corpus.
58. The issuance of a detainer itself constitutes custody for purposes of 28 U.S.C. § 2241.
59. The issuance of a detainer against Plaintiffs/Petitioners in the absence of probable cause results in detention in violation of the laws or Constitution of the United States.
60. The issuance of a detainer against Plaintiffs/Petitioners, in the absence of procedural protections such as notice and an opportunity to be heard, results in detention in violation of the laws or Constitution of the United States.
61. The issuance of detainers against Plaintiffs/Petitioners that compel state and local law enforcement agencies to administer a federal regulatory program results in detention in violation of the laws or Constitution of the United States.
62. Plaintiffs/Petitioners seek to pursue a representative action to represent the group of similarly situated individuals subject to unlawful detainers.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs/Petitioners respectfully request that the Court: a. Issue an order certifying this action to proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure;
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c. Alternately, to permit the action to proceed as a representative action in habeas corpus;
d. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein as applied to the Plaintiffs/Petitioners are unlawful and exceed defendants’ constitutional and statutory authority in violation of 5 U.S.C. §§ 706(2)(A)—(D);
e. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein are unlawful and violate Plaintiffs/Petitioners’ rights under the Fourth Amendment to the United States Constitution;
f. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein are unlawful and violate Plaintiffs/Petitioners’ rights under the Fifth Amendment to the United States Constitution;
g. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein are unlawful and violate Plaintiff/Petitioner Jose Jimenez Moreno’s rights under the Tenth Amendment to the United States Constitution;
h. Permanently enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them from subjecting Plaintiffs/Petitioners to these statutory violations and unconstitutional interpretation and application of regulations, policies, practices, acts and omissions described herein, and issue injunctive relief sufficient to rectify those statutory and constitutional violations;
i. Grant Plaintiffs/Petitioners their reasonable attorney fees and cost pursuant to 28 U.S.C. § 2412, and other applicable law; and
j. Grant such other relief as this Court deems just and proper.

Date: August 11, 2011
Attorneys for Plaintiffs/Petitioners: Claudia Valenzuela Chuck Roth Mary Meg McCarthy

Respectfully Submitted: __/s/ Claudia Valenzuela______
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Case: 1:11-cv-05452 Document #: 4 Filed: 08/11/11 Page 17 of 17 PageID #:41 Mark Fleming National Immigrant Justice Center 208 South LaSalle Street, Suite 1818 Chicago, Illinois 60604 T (312) 660-1308 T (312) 660-1613 T (312) 660-1351 T (312) 660-1628 F (312) 660-1505
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and )

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security (DHS);

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement (ICE) )

and Removal Operations (ERO);

)

DAVID C. PALMATIER, Unit Chief,

)

ICE/ERO Law Enforcement Support Center )

(LESC); RICARDO WONG, ICE/ERO

)

Director, Chicago Field Office, in their

)

official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee

MEMORANDUM OPINION AND ORDER Plaintiffs Jose Jimenez Moreno and Maria Jose Lopez (“Plaintiffs”), on behalf of themselves and similarly situated individuals, have sued Janet Napolitano, the Secretary of the Department of Homeland Security (“DHS”), and other federal officials responsible for the U.S. Immigration and Custom Enforcement (“ICE”) division of the DHS. Plaintiffs allege that ICE’s assertion of authority to instruct federal, state, and local law enforcement agencies (“LEAs”) to continue the detention of individuals in the LEA’s jails so that ICE can investigate their immigration status is a violation of ICE’s statutory authority under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(2)(A)–(D), and the Immigration and Naturalization Act (“INA”), 8 U.S.C. §§ 1226(a), 1357(a)(2), and 1357(d), as well as a violation of Plaintiffs’ constitutional rights under the Fourth, Fifth, and Tenth Amendments. Plaintiffs seek declaratory and injunctive relief, or, in the alternative, habeas corpus relief. Before the Court is Defendants’ motion to

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dismiss Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) for lack of subject matter jurisdiction. For the reasons provided herein, the Court denies Defendants’ motion.
Facts ICE is the division of DHS charged with identifying and removing unlawfully present aliens, including criminal aliens, from the United States. (Corrected Compl. ¶ 15.) As part of carrying out that task, ICE’s division of Enforcement and Removal (“ERO”) issues Form I-247 immigration detainers to federal, state, and local LEAs. (Id.) These detainers contain two main sections. (Id., Ex. A.) The first section advises an LEA that DHS has taken an action concerning an individual in the LEA’s custody. (Id.) The detainer lists four potential actions undertaken by DHS: (1) DHS has initiated an investigation to determine whether the individual is subject to removal from the United States; (2) DHS has issued a Notice to Appear or other charging document initiating removal proceedings; (3) DHS has issued a warrant of arrest in removal proceedings; and (4) DHS has ordered deportation or removal from the United States. (Id.) ICE indicates which actions are applicable by marking a box next to the action. (Id.) The second section of the detainer requests that the LEA take certain actions. (Id.) DHS can request the LEA to: (1) maintain custody of an individual for a period not to exceed fortyeight hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to assume custody of the individual pursuant to 8 CFR § 287.7; (2) sign and return a copy of the form; (3) notify DHS of the time of release at least 30 days prior to release or as far in advance as possible; (4) notify DHS in the event of the inmate’s death or transfer to another institution; and (5) cancel the detainer. (Id.) Like the first section, ICE indicates what is requested of the LEA by marking a box next to the appropriate action(s). (Id.)
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On March 21, 2011, Plaintiff Jose Jimenez Moreno was arrested in Rockford, Illinois and taken into state custody. (Id. ¶ 13.) The next day, he was indicted by the State of Illinois for two felonies: a cocaine charge and threatening a public official. (Defs.’ Mot. Dismiss 2.) That same day, the ICE Chicago Area of Responsibility (“AOR”) issued a Form I-247 immigration detainer against Moreno to the Winnebago County Sheriff. (Corrected Compl. ¶ 15, Ex. A.) In the first section of the detainer, DHS advised the Sheriff that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” (Id.) In the second section, DHS requested that the Sheriff: (1) maintain custody of Moreno pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Moreno; (2) complete, sign, and return the form; (3) notify DHS at least 30 days prior to Moreno’s release or as soon as possible; and (4) notify DHS in the event of Moreno’s death or transfer to another institution. (Id.)
Similarly, in November 2010, Plaintiff Maria Jose Lopez pleaded guilty to the federal offense “misprision of a felony.” (Id. ¶ 14.) On January 25, 2011, she surrendered herself to the Federal Correctional Institution (“FCI”) in Tallahassee, Florida to serve a year-long sentence. (Id.) On February 1, 2011, ICE’s Chicago AOR issued an I-247 immigration detainer against Lopez to the FCI. (Id., Ex. B.) In the first section of the detainer, DHS advised the FCI that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” (Id.) In the second section, DHS requested that the FCI: (1) maintain custody of Lopez pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Lopez; (2) notify DHS at least 30 days prior to Lopez’s release or as soon as possible; and (3) notify DHS in the event of Lopez’s death or transfer to another institution. (Id.)
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In August 2011, Moreno and Lopez sued DHS Secretary, Janet Napolitano; ICE Director, John Morton; the Unit Chief for ICE/ERO’s Law Enforcement Support Center, David C. Palmatier; and the Field Officer Director of the ICE/ERO Chicago AOR, Ricardo Wong. (Corrected Compl. ¶¶ 15-18.) Moreno and Lopez simultaneously moved to certify a class under Rule 23. (Id. ¶ 25.) The proposed class includes:
[a]ll current and future persons against whom ICE has issued an immigration detainer of the Chicago Area of [R]esponsibility (AOR) where ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA’s authority has expired and where ICE has indicated that the basis for the further detention is that ICE has initiated an investigation into the persons’ removability, but not including any noncitizen subject to mandatory detention under 8 U.S.C. § 1226(c). (Id.) In August 2011, ICE lifted the detainer against Moreno. (Pls.’ Opp’n Mot. Dismiss 5-6.) On November 22, 2011, ICE lifted the detainer against Lopez and she was released from custody. (Id.) On November 23, 2011, two additional individuals subject to I-247 detainers, Sergey Mayorov and Nicholas Taylor-Jones, sought leave to intervene in this action. (Id. at 9.) Several days later, at a hearing on the motion to intervene, Defendants announced that ICE had also lifted the detainers against the intervening plaintiffs. (Id.) Defendants now move to dismiss Plaintiffs’ claims for lack of subject matter jurisdiction.
Discussion Pursuant to Rule 12(b)(1), a court may dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). In addition, the Court may properly look beyond the jurisdictional allegations of the
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complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. Id.
I. Article III Standing Defendants argue that Plaintiffs’ Fourth and Fifth Amendment claims should be dismissed because Plaintiffs lack standing to bring them under Article III of the United States Constitution.1 (Defs.’ Mot. Dismiss 6-7.) Article III of the federal constitution limits the jurisdiction of the federal courts to hearing “cases” or “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). An essential component of Article III’s case-or-controversy requirement is the doctrine of standing. Id. at 560; Apex Digital, Inc., v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). “In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or particular issues.” Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Whether a plaintiff has standing “in no way depends on the merits of the plaintiff’s [claim].” Warth, 422 U.S. at 500; Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012) (courts should not “conflate[] standing with the merits of the case”). To satisfy the standing doctrine, a party seeking to invoke a federal court’s jurisdiction must demonstrate three things: (1) an “injury in fact” that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61. Defendants argue that Plaintiffs never satisfied the standing doctrine’s injury-in-fact requirement because the I-247 detainers were issued against Plaintiffs after they had already
1 Defendants also argue that Plaintiffs lack standing to bring their other constitutional, statutory, and habeas claims because ICE has cancelled the detainers against them. The Court addresses this argument in Section II.
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been arrested and were in criminal custody. As a result, according to Defendants, any injury or deprivation of liberty Plaintiffs may have experienced was caused not by the detainers at issue, but solely by Plaintiffs’ unrelated criminal custody. (Defs.’ Mot. Dismiss 6-7.)
To satisfy the injury-in-fact requirement when seeking injunctive and declaratory relief, Plaintiffs must show that they are under threat of suffering an injury that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Actual harm is not categorically required; an actual and imminent threat of future harm can satisfy the injury-in-fact requirement. Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 634 (7th Cir. 2007) (finding injury in fact when plaintiffs claimed an increased risk of data theft after their information had been accessed by a malicious and sophisticated hacker); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 498 (7th Cir. 2005) (“[T]he present impact of a future though uncertain harm may establish injury in fact for standing purposes.”); Johnson v. Allsteel, Inc., 259 F.3d 885, 888 (7th Cir. 2001) (holding that an ERISA plan administrator’s increased discretion increased the risk that the participant would be denied benefits and that “[t]he increased risk the participant faces as a result is an injury-in-fact” for standing purposes); Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) (“[E]ven a small probability of injury is sufficient to create a case or controversy – to take a suit out of the category of the hypothetical – provided of course that the relief sought would, if granted, reduce the probability.”).
The Seventh Circuit has not specifically addressed whether the threat of future confinement alone satisfies the injury-in-fact requirement for claims brought under the Fourth and Fifth Amendments. The Seventh Circuit, however, has held that, in the context of a habeas corpus petition, the petitioner “may challenge the illegality of future confinement, even if he is currently legally confined.” Wilkins-El v. Marberry, 340 Fed. Appx. 320, 322 (7th Cir. 2009)
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(citing Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 488-89 (1973) (permitting a prisoner to
challenge future confinement in another state via a habeas corpus petition because the prisoner
was “in custody” by virtue of a detainer lodged against him by that state). Vargas v. Swan, 854
F.2d 1028 (7th Cir. 1988), is particularly illustrative.
In Vargas, an individual incarcerated for first degree murder in the Wisconsin state penal
system filed a habeas petition after the federal government issued an I-247 immigration detainer
against him. Id. at 1029. Plaintiff alleged that he was “in custody in violation of the
Constitution or laws or treaties of the United States” pursuant to 28 U.S.C. § 2241(c)(3) and
sought an expedited determination from the United States Immigration and Naturalization
Service (“INS”) of whether he would be excluded from the United States upon his release from
state prison. Id. at 1029-30. The INS argued that it did not have sufficient custody of Plaintiff to
support the court’s habeas jurisdiction. Id. at 1030. The Seventh Circuit held that the court had
jurisdiction if the detainer had “as part of its effect the holding of a prisoner for a future
custodian who has evinced an intent to retake or to decide the prisoner’s status at the end of his or her current confinement.” Id. at 1032.2
Although the Wilkins-El and Vargas decisions addressed habeas jurisdiction and not
jurisdiction for claims arising directly under the Fourth and Fifth Amendments, the injury that
Plaintiffs allege in this case, i.e., the threat of future confinement, is identical to the injury
2 Other circuits have disagreed with Vargas. See, e.g., Zolicoffer v. U.S Dep’t of Justice, 315 F.3d 538, 541 (5th Cir. 2003) (“This court agrees with the majority of the circuit courts considering the issue and holds that prisoners are not “in custody” for purposes of 28 U.S.C. § 2241 simply because the INS has lodged a detainer against them.”); Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994) (noting that “[a]lmost all the circuit courts considering the issue have determined that the lodging of a detainer, without more, is insufficient to render the alien in custody”); Prieto v. Gluch, 913 F.2d 1159, 1163 (6th Cir. 1990) (“An examination of the court’s reasoning in Vargas reveals that the reliance of the Vargas court on several United States Supreme Court cases in reaching its conclusion was perhaps misplaced.”); Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990) (“The filing of the detainer, standing alone, did not cause [Plaintiff] to come within the custody of the INS.”); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988) (“The filing of an INS detainer, standing alone, does not cause a sentenced offender to come within the custody of the INS for purposes of a petition for a writ of habeas corpus.”)
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alleged by the petitioners in Wilkins-El and Vargas. Accordingly, we find that, if the detainers at issue here had the effect of “holding” the Plaintiffs “for a future custodian who has evinced an intent to retake or to decide the prisoner’s status at the end of his or her current confinement,” Vargas, 854 F.2d at 1032, Plaintiffs satisfied the injury-in-fact requirement and had standing at the time that they initiated their suit. Taking the allegations in the complaint as true, Plaintiffs amply satisfied this burden.
At the inception of the litigation, Plaintiffs were subject to I-247 immigration detainers that requested that LEAs maintain custody of them after the expiration of the LEA’s lawful custody pursuant to federal regulation 8 C.F.R. § 287.7. (Pls.’ Opp’n Mot. Dismiss 6.) Federal regulation 8 C.F.R. § 287.7 states in pertinent part that “[u]pon a determination by [DHS] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the [DHS].” 8 C.F.R. § 287.7(d) (emphasis added). Under this mandatory language, Plaintiffs faced an actual and imminent risk of injury because they faced an imminent risk of future confinement pursuant to the I-247 detainers beyond the time that they would otherwise be released. At the motion to dismiss stage when all reasonable inferences are drawn in favor of the plaintiff, Ezekiel, 66 F.3d at 897, it cannot be said based upon the current record that the Plaintiffs’ risk of future confinement is “conjectural” or “hypothetical,” or that the mandatory language of 8 C.F.R. § 287.7 is not followed in practice. Thus, at the inception of the litigation, when Plaintiffs faced I-247 detainers, Plaintiffs satisfied the standing doctrine’s injury-in-fact requirement.
In addition to contesting Plaintiffs’ standing at the commencement of this action, Defendants contend that Plaintiffs now lack standing because the I-247 detainers have been cancelled. (Defs.’ Mot. Dismiss 5-6.) Accordingly, Defendants argue that Plaintiffs no longer
8

face imminent harm and, therefore, do not satisfy the standing doctrine’s injury-in-fact requirement at this point in time. (Defs.’ Mot. Dismiss 5-6.) This argument, however, is based on an intervening event – the cancellation of the I-247 detainers. When the litigation began, Moreno and Lopez were subject to active I-247 detainers. (Corrected Compl. ¶¶ 13-14.) The Seventh Circuit has recognized that “[w]hen a party with standing at the inception of the litigation loses it due to intervening events, the inquiry is really one of mootness.” Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir. 2010). Thus, the Court addresses whether Plaintiffs’ claims are moot.
II. Mootness Article III of the Constitution limits the jurisdiction of federal courts to hearing live “cases” or “controversies.” Lujan, 504 U.S. at 559; Medlock v. Trs. of Ind. Univ., 683 F.3d 880, 882 (7th Cir. 2012). In keeping with that limitation, “if an event occurs while a case is pending . . . that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the [case] must be dismissed” as moot. Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 676 (7th Cir. 2009) (quoting Mills v. Green, 159 U.S. 651, 653 (1992)). Defendants argue that Plaintiffs’ claims are moot because ICE lifted the I-247 detainers against Moreno and Lopez, and thus no case or controversy remains. This argument might carry the day had Plaintiffs filed claims solely on an individual basis. Moreno and Lopez, however, filed for class certification simultaneously with their complaint when they were subject to I-247 detainers.3 (Corrected Compl. ¶ 25.) Although the filing of a certification motion would not typically save a cause of action from becoming moot, the timely filing for class certification can save a cause of action if it falls within the “inherently transitory” exception to the mootness
3 Although on its face the proposed class could potentially include individuals who at one time had an I247 detainer outstanding against them but have since had the detainer withdrawn, the Court construes the proposed class to include only individuals who have an active I-247 detainer outstanding against them.
9

doctrine announced in Gerstein v. Pugh, 420 U.S. 103 (1975). See Olson v. Brown, 594 F.3d 577, 580 (7th Cir. 2010). Thus, the issue before the Court is whether Moreno and Lopez’s claims are so “inherently transitory” that it is uncertain that any member of the class would maintain a live controversy long enough for a judge to certify a class.
To fall within the “inherently transitory” exception to the mootness doctrine, a claim must meet two elements: (1) it must be uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there must be a “constant class of persons suffering the deprivation complained of in the complaint.” Id. at 582 (citing Gernstein, 420 U.S. at 110 n.11.) Plaintiffs’ claims satisfy both elements.
The essence of the “inherently transitory” exception is uncertainty about the length of time a claim will remain alive. Id. If the length of a claim “cannot be determined at the outset” and is “subject to a number of unpredictable factors,” it is “inherently transitory.” Id. In Olson, a prison inmate moved for class certification but was transferred out of jail before the court’s ruling. Id. at 583. The Seventh Circuit held that the “inherently transitory” exception applied because the inmate did not know when his claim would become moot. The duration of his claim was at the discretion of the Indiana Department of Correction, and an individual incarcerated “may be released for a number of reasons that he cannot anticipate.” Id. Cf. Banks v. NCAA, 977 F.2d 1081, 1086 (7th Cir. 1992) (“inherently transitory” exception did not apply where plaintiff knew from the outset that his claim would become moot 120 days from the onset of the controversy).
Similarly here, the “inherently transitory” exception applies because Moreno and Lopez did not know when their claims would become moot. Like the inmate plaintiff’s detention in Olson, the duration of the I-247 detainers could not be determined at the outset; they were subject to the discretion of ICE officials and beyond Plaintiffs’ control. (Corrected Compl. ¶ 20.)
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The I-247 detainers sought continued detention on the basis that an “[i]nvestigation has been
initiated to determine whether this person is subject to removal from the United States.” (Id.)
Plaintiffs have no way of knowing what course an ICE investigation might take or when ICE might lift the detainers against them, if at all.4 Thus, it is uncertain that a claim against
Defendants brought by a plaintiff subject to an I-247 detainer will remain live for enough time to
allow an individual who could be named as a plaintiff to certify a class. The duration of any
claim is at the discretion of ICE, and the detainer against any plaintiff may be lifted for reasons
that he or she cannot anticipate.
Plaintiffs’ claims also satisfy the second element of the “inherently transitory” exception
– that there be a “constant class of persons suffering the deprivation complained of in the
complaint.” Olson, 594 F.3d at 582. Each year ICE issues hundreds of thousands of I-247
detainers. (Corrected Compl. ¶ 28.) This makes it likely that a constant class of persons will be
subject to an I-247 detainer similar to Moreno and Lopez. Because Plaintiffs’ claims satisfy both elements of the “inherently transitory” exception to the mootness doctrine, Plaintiffs’ claims are not moot.5
Conclusion For the reasons herein, the Court denies Defendants’ motion to dismiss [10].
4 Here, ICE lifted the detainers after Plaintiffs filed a complaint but before the Court could address class certification. (Pls.’ Opp’n Mot. Dismiss 6.) After ICE lifted the detainers against Moreno and Lopez, two additional individuals subject to I-247 immigration detainers, Sergey Mayorov and Nicholas TaylorJones, sought leave to intervene in this action. (Id. at 9.) Days after Mayorov and Taylor-Jones moved to intervene, Defendants stated that ICE had lifted the detainers against them as well. (Id.) Even if we were to attribute these events to mere coincidence, they illustrate the inherently transitory nature of Plaintiffs’ claims. 5 Because the Court finds Plaintiffs’ claims are not moot under the “inherently transitory” exception, the Court need not address Plaintiffs’ argument that their claims are not moot under the “capable of repetition yet evading review” exception, a separate and distinct exception to the mootness doctrine. See Olson, 594 F.3d at 583.
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SO ORDERED

ENTER: 11/30/12
______________________________________ JOHN Z. LEE U.S. District Judge

12

 
 Case: 1:11-cv-05452 Document #: 78 Filed: 05/01/13 Page 1 of 18 PageID #:473

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO AND MARIA JOSE )

LOPEZ,

)

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs / Petitioners

)

)

v.

)

)

JANET NAPOLITANO, SECRETARY OF THE

)

DEPARTMENT OF HOMELAND SECURITY (DHS);)

JOHN MORTON, DIRECTOR OF U.S.

)

IMMIGRATION AND CUSTOMS ENFORCEMENT )

(ICE) AND ITS OFFICE OF ENFORCEMENT AND )

REMOVAL OPERATIONS (ERO); DAVID C.

)

PALMATIER, UNIT CHIEF, ICE/ERO LAW

)

ENFORCEMENT SUPPORT CENTER (LESC); )

RICARDO WONG, ICE/ERO DIRECTOR,

)

CHICAGO FIELD OFFICE,

)

)

in their official capacities,

)

)

Defendants / Respondents. )

CASE NO: 11-CV-05452 JUDGE JOHN Z. LEE
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

STATEMENT OF THE CASE 1. This complaint presents a challenge to the U.S. Immigration and Customs Enforcement’s (ICE’s) assertion of general authority to instruct federal, state, and local law enforcement agencies (LEAs) to continue to detain individuals in the LEAs’ jails, after no other basis for custody exists, in order for ICE to investigate their immigration status and possibly assume direct physical custody. ICE’s statutory authority to issue detainers, without an arrest warrant, is limited. 8 U.S.C. § 1357(d); 8 U.S.C. § 1226(c); 8 U.S.C. 1357(a). As set forth below, ICE’s exercise of detainer authority, however, regularly exceeds its statutory authority. In addition, ICE’s conscription of state and

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local LEAs to detain individuals for civil immigration purposes violates separation of powers limits under the Tenth Amendment. Finally, the extended detention, unsupported by probable cause and without due process protections, that ICE’s detainers cause plaintiffs and those similarly situated to them violates their rights under the Fourth and Fifth Amendments and/or entitles them to habeas relief.
2. A detainer lodged by ICE instructs an LEA to detain an individual after the period for the agency’s lawful custody over the individual has expired while ICE assesses whether the individual is subject to removal proceedings and whether it will assume direct, physical custody.
3. At the time this action was commenced, the named plaintiffs in this case, Jose Jimenez Moreno and Maria Jose Lopez (hereinafter “Plaintiffs/Petitioners”), were individuals being held by LEAs, against whom ICE placed immigration detainers, without lawful authority or any legal basis to do so. The Defendants in this case are federal officials responsible for ICE’s issuance of detainers, named because their inclusion is potentially required to effectuate the forms of relief this complaint requests.
4. As to each Plaintiff/Petitioner, ICE justified the detainer it placed on them based solely on its initiation of an investigation to determine whether they are subject to removal from the United States. ICE did not accompany any of the Plaintiffs/Petitioners’ detainers with an administrative arrest warrant, a Notice to Appear or other charging document, or a final removal order. ICE did not require notice of the immigration detainer to Plaintiffs/Petitioners. Moreover, ICE did not provide the Plaintiffs/Petitioners with a means to challenge the immigration detainers lodged against them.
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Plaintiffs’/Petitioners’ claims are inherently transitory and are not moot. Dkt. No. 56 at 11.
5. Plaintiffs/Petitioners seek on their behalf and on behalf of similarly situated individuals, who have immigration detainers lodged against them that were issued from ICE’s Chicago Area of Responsibility (AOR) including its sub-offices, declaratory and injunctive relief under the Administrative Procedures Act, 5 U.S.C. §706(a), under the Fourth, Fifth and Tenth Amendments for the ongoing violation of their rights, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and Bond v. United States, 131 S.Ct. 2355 (June 16, 2011), or, in the alternative, habeas corpus relief.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 because it arises under the Constitution and laws of the United States. 7. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure. 8. This Court has authority to grant injunctive relief in this action pursuant to 5 U.S.C. § 702, and Rule 65 of the Federal Rules of Civil Procedure. 9. Alternatively, this Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 2241, as the issuance of a detainer requiring or requesting detention places the Plaintiffs/Petitioners in a form of custody. 10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to Plaintiffs/Petitioners’ claims occurred, and continue to occur, in this District.
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11. Venue is proper in this judicial district because the principal custodian of the Plaintiffs/Petitioners (i.e., the individual under whose authority the detainer was issued) is located in this District, such that this Court has jurisdiction over the Plaintiffs/Petitioners’ custodian.
PARTIES 12. Plaintiffs/Petitioners are individuals against whom federal immigration officials issued immigration detainers (Form I-247). The sole stated basis of their detainers was that ICE had initiated an investigation into their removability from the United States, requiring an LEA to maintain custody of the Plaintiffs/Petitioners for up to 48 hours, excluding weekends and federal holidays, after their LEA authority expires, so that ICE can assume physical custody. ICE did not require that Plaintiffs/Petitioners be given notice of the immigration detainers nor has it provided a means by which to challenge the lawfulness of the detainers. Plaintiffs/Petitioners’ immigration detainers were issued from the ICE Chicago AOR. 13. At the time this action was commenced, Plaintiff/Petitioner Jose Jimenez Moreno was a 34-year old United States citizen who was detained at the Winnebago County Jail in Illinois with an ICE I-247 immigration detainer lodged against him. Mr. Jimenez was arrested on March 21, 2011 in Rockford, Illinois. Without ever interviewing or speaking to him, ICE issued an immigration detainer against Mr. Jimenez on March 22, 2011. Because of his detainer, at the end of his term of lawful custody, Mr. Jiminez would have been unlawfully subject to being held an additional 48 hours or more in the custody of a LEA when, but for the detainer, he would otherwise have been released.
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14. At the time this action was commenced, Plaintiff/Petitioner Maria Jose Lopez was a 29-year old Legal Permanent Resident who was detained at the Federal Correctional Institution in Tallahassee, Florida (FCI-Tallahassee) with an ICE I-247 immigration detainer lodged against her. Ms. Lopez came to the United States at the age of four and is the mother and primary caregiver to her 3 minor United States children. In November 2010, Ms. Lopez pled guilty to “misprision of a felony” a non-removable offense for immigration purposes. Ms. Lopez was permitted to self-surrender on January 25, 2011. Without ever interviewing or speaking to her, the ICE Chicago AOR issued an immigration detainer against her on February 1, 2011. No later than March 22, 2011, FCI-Tallahassee informed ICE that Ms. Lopez was convicted of “misprision of a felony”—a non-removable offense. Because of her detainer, at the end of her term of lawful custody, Ms. Lopez would have been unlawfully subject to being held an additional 48 hours or more in the custody of FCI-Tallahassee when, but for the detainer, she would otherwise have been released.
15. Defendant Janet Napolitano is the Secretary for the Department of Homeland Security (DHS), which houses the office of Immigration and Customs Enforcement (ICE) and ICE’s division of Enforcement and Removal Operations (ERO), the entities which issue the I-247 immigration detainers to federal, state and local law enforcement. Secretary Napolitano is ultimately responsible for how immigration regulations are applied and the approval of the use of the standard I-247 detainer form under which authority the Plaintiffs/Petitioners are detained.
16. Defendant John Morton is the Director of Immigration and Customs Enforcement for DHS. As part of Director Morton’s responsibilities, he establishes
5

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immigration detainer policy for ICE and its subdivisions, including the application of the detainer regulations and approval of the use of the standard I-247 detainer form under which authority the Plaintiffs/Petitioners are detained.
17. Defendant David C. Palmatier, based on information and belief, is the Unit Chief for ICE/ERO’s Law Enforcement Support Center (LESC) located in Vermont. In his official capacity, Chief Palmatier oversees the issuance of thousands of immigration detainers out of the LESC pursuant to law enforcement inquiries from throughout the United States. Based on information and belief, LESC is listed as the ICE custodian on detainers issued from the LESC and is listed as emergency custodian for many detainers issued from ICE/ERO Field Offices, including Chicago AOR.
18. Defendant Ricardo Wong is the Field Office Director (FOD) of the ICE/ERO Chicago AOR Field Office, which has responsibility for Illinois, Indiana, Wisconsin, Missouri, Kentucky, and Kansas. In his official capacity, FOD Wong has ultimate responsibility for all immigration detainers issued out of the Chicago AOR, including its sub-offices and the ICE Detention Enforcement and Processing Offender by Remote Technology (DEPORT) center. Based on information and belief, the Chicago Field Office is listed as the principal ICE custodian on detainers issued out of its area of responsibility.
FACTUAL ALLEGATIONS 19. Pursuant to 8 U.S.C. § 1103(a), DHS, through its division of ICE, has the authority to issue immigration detainers in accordance with the intent and requirements of the Immigration and Nationality Act (INA).
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20. Plaintiffs/Petitioners were all stopped or arrested by LEAs. Based on information and belief, the LEAs had communications with ICE and then ICE issued standard form I-247 detainers against the Plaintiffs/Petitioners. See Ex. A (Plaintiffs/Petitioners’ ICE I-247 detainer forms). On the I-247 immigration detainers issued against the Plaintiffs/Petitioners, ICE officials justify continued detention of the Plaintiffs/Petitioners on the sole grounds that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” ICE’s detainers against the Plaintiffs/Petitioners instruct the LEAs that:
[f]ederal regulations (8 CFR 287.7) request that you [LEA] detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for ICE to assume custody of the alien. You may notify ICE by calling [local ICE/ERO Field Office telephone number] during business hours or [typically ICE Law Enforcement Support Center telephone number] after hours in an emergency.
21. None of the Plaintiffs/Petitioners’ I-247 immigration detainers were issued pursuant to a Notice to Appear (NTA) or other charging document, warrant of arrest in removal proceedings, or a deportation order.
22. The I-247 detainer form does not require notice of the immigration detainers to the Plaintiffs/Petitioners. Based on information and belief, ICE never required the LEAs to provide the Plaintiffs/Petitioners with notice of the detainers lodged against them nor does ICE have a written policy or procedure requiring that the Plaintiffs/Petitioners and similarly situated individuals be provided notice of immigration detainers lodged against them.
23. ICE does not provide an administrative procedure for challenging the issuance of a detainer. Likewise, the Board of Immigration Appeals (BIA) has ruled that it does not have jurisdiction to consider challenges to detainers because it has found that
7

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individuals held on detainers are not in federal immigration custody. Matter of Sanchez, 20 I. & N. Dec. 223, 225 (BIA 1990).
24. The I-247 detainer form states that ICE “requests”1 that the LEA detain the individual for an additional 48 hours, excluding weekends and holidays, so ICE can assume direct, physical custody of the individual. However, the regulation cited on the I247 detainer form mandates that the LEAs detain the individual on ICE’s behalf. The regulation states: “such [criminal justice] agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [ICE].” 8 C.F.R. § 287.7(d)(emphasis added).
CLASS ACTION ALLEGATIONS 25. Pursuant to Fed. R. Civ. P. 23(b)(1), (b)(2) and/or (c)(4), Plaintiffs/Petitioners, Jose Jimenez Moreno and Maria Jose Lopez, seek to represent a class consisting of: All current and future persons against whom ICE has an active immigration detainer that was issued out of its Chicago AOR where ICE has instructed a law enforcement agency (LEA) to continue to detain the individual after the LEA’s detention authority has expired and where ICE has not served a Notice to Appear or other charging document, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal. 26. In addition, Plaintiff/Petitioner Jose Jimenez Moreno, seeks to represent a sub-class, which consists of the persons described in paragraph 25, who have had detainers lodged against them while they are in state or local LEA custody where ICE has instructed their further detention pursuant to 8 C.F.R. § 287.7. The sub-class alleges that this violates their rights under the Tenth Amendment to the U.S. Constitution.
1 From 1997 to August 2010, the I-247 detainer form stated that it was required by 8 CFR 287.7 that the LEA detain the individual for an additional 48 hours in order for ICE to assume physical custody of the individual. See Ex. B. (example of prior detainer form).
8

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27. The Plaintiffs/Petitioners’ class seeks declaratory and injunctive relief to eliminate or remedy Defendants’ application of immigration detainer regulations, policies, practices, acts, and omissions that are depriving Plaintiffs/Petitioners of their liberty in violation of their rights.
28. The proposed ICE Detainer Class and Sub-Class are very numerous. In FY2009, at least 223,297 individuals detained by ICE (approximately 60% of ICE’s FY2009 detention population) were first stopped, arrested, or criminally convicted by LEAs. See ICE, Dr. Dora Schriro, Special Advisor to Secretary Napolitano on ICE/DRO, “Immigration Detention Overview and Recommendations,” pp. 11-12 (Oct. 6, 2009). Based on data obtained through a FOIA request, Plaintiffs/Petitioners believe that ICE issued 270,988 immigration detainers in FY2009 and 201,778 detainers through the first eleven months of FY2010.
29. Joinder of all class members is also impracticable. Because ICE continuously lodges immigration detainers against individuals and assumes physical custody of those held on immigration detainers, the membership of the class changes constantly.
30. All individuals who would fall within the class definition have equally had ICE detainer regulations, policies, practices, acts and omissions applied against them causing unlawful deprivation of liberty in violation of their rights. There are questions of law or fact common to all class and sub-class members, including but not limited to:
 Whether Defendants have exceeded their constitutional and/or statutory authority (APA 5 U.S.C. § 706(2)) in placing detainers on class members, including whether promulgation of 8 C.F.R. § 236.1(a) and 8 C.F.R. § 287.7 exceed Defendants’ statutory authority;
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 Whether Defendants’ issuance of an immigration detainer instructing further detention based either (1) on the initiation of an investigation to determine whether the class member is removable or (2) based on a determination that there is reason to believe the class member is an alien subject to removal violates the Fourth Amendment;
 Whether Defendants’ issuance of an immigration detainer without a prior or concurrent service of a Notice to Appear or other charging document, an administrative arrest warrant, an order of deportation, or compliance with 8 U.S.C. § 1357(a)(2) violates the Fourth Amendment;
 Whether Defendants’ issuance of an immigration detainer without providing or requiring notice to class members violates the Fifth Amendment;
 Whether Defendants’ issuance of an immigration detainer without providing class members a means of challenging detainers violates the Fifth Amendment; and
 Whether Defendants’ issuance of immigration detainers compelling state and local LEAs to detain sub-class members, pursuant to 8 C.F.R. § 287.7(d) and in furtherance of a federal regulatory program, violates the Tenth Amendment to the U.S. Constitution.
31. Given the commonality of the questions shared by all class members,
prosecuting separate claims as to individual class members would establish incompatible
standards of conduct for the Defendants and the adjudications as to individual class
members’ claims would be dispositive of the interests of other class members and thus
would substantially impair their ability to protect their interests.
32. Defendants have acted and intend to act in a manner adverse to the rights
of the proposed class, making final injunctive and declaratory relief appropriate with
respect to the class as a whole.
33. Plaintiffs/Petitioners and the class and sub-class they seek to represent
have been directly injured by the Defendants’ statutory and constitutional violations in
the application of detainer regulations, policies, practices, acts and omissions and are at
10

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risk of future harm from continuation of these regulations, policies, practices, acts and omissions.
34. Plaintiffs/Petitioners will fairly and adequately represent the interests of ICE Detainer Class and Sub-Class. Plaintiffs/Petitioners legal claims are typical to all members of the proposed ICE Detainer Class and Sub-Class. Plaintiffs/Petitioners have no interests separate from those of the ICE Detainer Class and Sub-Class, and seek no relief other than the relief sought on behalf of the class.
35. Plaintiffs/Petitioners’ counsel are experienced in class action, civil rights, and immigrants’ rights litigation. Plaintiffs/Petitioners’ counsel will fairly and adequately represent the interests of ICE Detainer Class and Sub-Class.
FIRST CLAIM FOR RELIEF (Violation of 5 U.S.C. §§ 706(2)(A)—(D)) 36. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 35. 37. Defendants’ failure to restrict its issuance of detainers to its authority under the INA causes Plaintiffs/Petitioners significant prejudice by depriving them of their liberty. 38. Defendants’ failure to issue detainers in accordance with due process protections required by the relevant provisions of the INA (8 U.S.C. § 1226(a), 8 U.S.C. § 1357(a)(2) and 8 U.S.C. § 1357(d)) causes Plaintiffs/Petitioners significant pain and suffering by depriving them of their liberty. 39. Defendants’ application of the immigration detainer regulations and issuance of detainers against the Plaintiffs/Petitioners exceeds the Defendants’ constitutional and statutory authority in violation of 5 U.S.C. §§ 706(2)(A)—(D).
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40. As a proximate result of Defendants’ statutory and constitutional violations, Plaintiffs/Petitioners are suffering and will continue to suffer a significant deprivation of their liberty without due process of law. Plaintiffs/Petitioners have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiffs/Petitioners is necessary to prevent continued and future injury.
SECOND CLAIM FOR RELIEF (Violation of the Fourth Amendment to the U.S. Constitution) 41. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 40. 42. Defendants’ issuance of immigration detainers based solely on either (1) the initiation of an investigation into the Plaintiffs/Petitioners’ removability from the United States or (2) on a determination that there is reason to believe an individual is an alien subject to removal causes the Plaintiffs/Petitioners prejudice by unreasonably taking away, limiting, and otherwise impacting their liberty without probable cause in violation of the Fourth Amendment. 43. Defendants’ warrantless arrest of Plaintiffs/Petitioners through the issuance of detainers without providing a prompt hearing to determine whether Defendants have probable cause unreasonably deprives them of liberty without probable cause in violation of the Fourth Amendment. 44. Defendants’ detainer regulations, policies, practices, acts and omissions cause unreasonable deprivation of Plaintiffs/Petitioners’ liberty in violation of the Fourth Amendment to the United States Constitution.
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45. As a proximate result of Defendants’ unconstitutional detainer regulations, policies, practices, acts, and omissions, Plaintiffs/Petitioners are suffering and will continue to suffer an unreasonable deprivation of their liberty. Plaintiffs/Petitioners have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiffs/Petitioners is necessary to prevent continued and future injury.
THIRD CLAIM FOR RELIEF (Violation of the Fifth Amendment to the U.S. Constitution) 46. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 45. 47. Defendants’ issuance of immigration detainers based solely on either (1) the initiation of an investigation into the Plaintiffs/Petitioners’ removability from the United States or (2) on a determination that there is reason to believe an individual is an alien subject to removal causes the Plaintiffs/Petitioners significant pain and suffering by depriving them of their liberty without due process of law. 48. Defendants’ issuance of immigration detainers without requiring that Plaintiffs/Petitioners receive effective notice of the detainer causes the Plaintiffs/Petitioners to suffer substantial prejudice without affording them an opportunity to be heard prior to the deprivation. 49. Defendants’ failure to provide any mechanism by which the Plaintiffs/Petitioners may challenge the issuance of a detainer against them causes the Plaintiffs/Petitioners substantial prejudice by depriving them of their liberty without due process of law.
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50. Defendants’ detainer regulations, policies, practices, acts and omissions cause significant deprivations of Plaintiffs/Petitioners’ liberty without due process of law in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution.
51. As a proximate result of Defendants’ unconstitutional detainer regulations, policies, practices, acts, and omissions, Plaintiffs/Petitioners are suffering and will continue to suffer a significant deprivation of their liberty without due process of law. Plaintiffs/Petitioners have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiffs/Petitioners is necessary to prevent continued and future injury.
FOURTH CLAIM FOR RELIEF (Violation of the Tenth Amendment to the U.S. Constitution) 52. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 51. 53. Defendants’ issuance of detainers compelling state and local LEAs to detain Plaintiff/Petitioner, Jose Jimenez Moreno, in enforcement of a federal regulatory program, as required under federal regulation 8 C.F.R. § 287.7, caused the Plaintiff/Petitioner significant pain and suffering by depriving him of his liberty. 54. Defendants’ detainer regulations, policies, practices, acts and omissions compelling and conscripting state and local LEAs to enforce a federal regulatory program is a violation of the Plaintiff/Petitioner’s rights under the Anti-Commandeering Principle of the Tenth Amendment of the United States Constitution. 55. As a proximate result of Defendants’ unconstitutional conscription of state and local LEAs, Plaintiff/Petitioner is suffering and will continue to suffer a significant
14

Case: 1:11-cv-05452 Document #: 78 Filed: 05/01/13 Page 15 of 18 PageID #:487
deprivation of his liberty. Plaintiff/Petitioner has no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive and declaratory relief sought by Plaintiff/Petitioner is necessary to prevent continued and future injury.
FIFTH CLAIM FOR RELIEF (Petition for Writ of Habeas Corpus) 56. Plaintiffs/Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 55. 57. This claim for relief is brought as an alternative to the first four claims for relief, above, in the event the court were to rule that the proper or only vehicle for relief is by writ of habeas corpus. 58. The issuance of a detainer itself constitutes custody for purposes of 28 U.S.C. § 2241. 59. The issuance of a detainer against Plaintiffs/Petitioners in the absence of probable cause results in detention in violation of the laws or Constitution of the United States. 60. The issuance of a detainer against Plaintiffs/Petitioners, in the absence of procedural protections such as notice and an opportunity to be heard, results in detention in violation of the laws or Constitution of the United States. 61. The issuance of detainers against Plaintiffs/Petitioners that compel state and local law enforcement agencies to administer a federal regulatory program results in detention in violation of the laws or Constitution of the United States. 62. Plaintiffs/Petitioners seek to pursue a representative action to represent the group of similarly situated individuals subject to unlawful detainers.
15

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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs/Petitioners respectfully request that the Court:
a. Issue an order certifying this action to proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure;
b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure;
c. Alternately, to permit the action to proceed as a representative action in habeas corpus;
d. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein as applied to the Plaintiffs/Petitioners are unlawful and exceed defendants’ constitutional and statutory authority in violation of 5 U.S.C. §§ 706(2)(A)—(D);
e. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein are unlawful and violate Plaintiffs/Petitioners’ rights under the Fourth Amendment to the United States Constitution;
f. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein are unlawful and violate Plaintiffs/Petitioners’ rights under the Fifth Amendment to the United States Constitution;
g. Issue a judgment declaring that Defendants’ detainer regulations, policies, practices, acts, and omissions described herein are unlawful and violate Plaintiff/Petitioner Jose Jimenez Moreno’s rights under the Tenth Amendment to the United States Constitution;
h. Permanently enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them from subjecting Plaintiffs/Petitioners to these statutory violations and unconstitutional interpretation and application of regulations, policies, practices, acts and omissions described herein, and issue injunctive relief sufficient to rectify those statutory and constitutional violations;
i. Grant Plaintiffs/Petitioners their reasonable attorney fees and cost pursuant to 28 U.S.C. § 2412, and other applicable law; and
j. Grant such other relief as this Court deems just and proper.
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Date: May 1, 2013

Respectfully Submitted:
By:_/s/ Benjamin P. Carr________ Linda T. Coberly Raymond C. Perkins Benjamin P. Carr Joel M. Wallace WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 (312) 558-5600 LCoberly@winston.com RPerkins@winston.com BCarr@winston.com JWallace@winston.com
Claudia Beatrice Valenzuela Rivas Mark M. Fleming NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1818 Chicago, Illinois 60604 Telephone: (312) 660-1370 Fax: (312) 660-1505 cvalenzuela@heartlandalliance.org mfleming@heartlandalliance.org
Attorneys for Plaintiffs/Petitioners

17

Case: 1:11-cv-05452 Document #: 78 Filed: 05/01/13 Page 18 of 18 PageID #:490

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA JOSE LOPEZ,
on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
JANET NAPOLITANO, et al.,
in their official capacities,
Defendants.

) ) ) ) ) ) ) No. 1:11-cv-05452 ) ) Judge John Z. Lee ) ) ) ) ) )

CERTIFICATE OF SERVICE

I, Benjamin P. Carr, hereby certify that on the 1st day of May, 2013, I caused a

true and correct copy of the foregoing AMENDED COMPLAINT to be filed and served

on counsel of record of all parties via operation of the Court’s electronic filing system.

__/s/ Benjamin P. Carr___________________

18

Case: 1:11-cv-05452 Document #: 78-1 Filed: 05/01/13 Page 1 of 6 PageID #:491

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA JOSE LOPEZ,
on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
JANET NAPOLITANO, et al.,
in their official capacities,
Defendants.

) ) ) ) ) ) ) No. 1:11-cv-05452 ) ) Judge John Z. Lee ) ) ) ) ) )

INDEX OF EXHIBITS FOR AMENDED COMPLAINT

Exhibit A: Exhibit B:

Plaintiffs/Petitioners’ ICE I-247 Detainer Forms Example of Prior Detainer Form

Case: 1:11-cv-05452 Document #: 78-1 Filed: 05/01/13 Page 2 of 6 PageID #:492

Case: 1:11-cv-05452 Document #: 78-1 Filed: 05/01/13 Page 3 of 6 PageID #:493

Case: 1:11-cv-05452 Document #: 78-1 Filed: 05/01/13 Page 4 of 6 PageID #:494

Case: 1:11-cv-05452 Document #: 78-1 Filed: 05/01/13 Page 5 of 6 PageID #:495

Case: 1:11-cv-05452 Document #: 78-1 Filed: 05/01/13 Page 6 of 6 PageID #:496

 
 Order Form (01/2005) Case: 1:11-cv-05452 Document #: 68 Filed: 02/14/13 Page 1 of 1 PageID #:390
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

John Z. Lee

Sitting Judge if Other than Assigned Judge

11 C 5452

DATE

2/14/2013

Jimenez Moreno et al vs. Napolitano et al

DOCKET ENTRY TEXT
Plaintiffs’ motion to certify class [5] is stricken without prejudice. The parties have stated that they will need class discovery and discovery has commenced. Because class discovery may impact the parties’ arguments and the definition of the class, consideration of the class certification issue is premature at this time. On 1/8/13, the Court set a briefing schedule for the class certification issue. Plaintiffs are granted leave to file a renewed motion for class certification with their memorandum in support of class certification, which is due 4/19/13. Additionally, for the reasons provided herein, Sergey Mayorov and Nicholas Taylor-Jones’s motion to intervene [25] is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
On 11/23/11, Sergey Mayorov and Nicholas Taylor-Jones moved to intervene and serve as class representatives. When they moved to intervene, they had active I-247 immigration detainers outstanding against them. Since then, however, the detainers against them have been lifted.
On 11/30/12, the Court denied Defendants’ motion to dismiss and construed the proposed class to include only “individuals who have an active I-247 detainer outstanding against them.” (11/30/12 Mem. Op. & Order 9.) At that time, the Court held that the claims of named Plaintiffs Jose Jimenez Moreno and Maria Jose Lopez fall under the “inherently transitory” exception to the mootness doctrine. Consequently, even though the detainers against Moreno and Lopez have been lifted and Moreno and Lopez, therefore, are not themselves part of the proposed class, they can continue to represent the class for certification purposes because “it is preferable to have the plaintiff currently before the court act as a class representative, even if his individual claims have expired, than to have no plaintiff at all.” Trotter v. Klincar, 748 F.2d 1177, 1183-84 (7th Cir. 1984).
Adding Mayoror and Taylor-Jones as additional named plaintiffs, however, is not appropriate or necessary at this time because they are not part of the proposed class and the proposed class is already represented by Moreno and Lopez. Thus, Mayoror and Taylor-Jones’s motion to intervene as named plaintiffs and class representatives [25] is denied.

11C5452 Jimenez Moreno et al vs. Napolitano et al

Page 1 of 1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and

)

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security (DHS);

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement (ICE) )

and Removal Operations (ERO);

)

DAVID C. PALMATIER, Unit Chief,

)

ICE/ERO Law Enforcement Support Center )

(LESC); RICARDO WONG, ICE/ERO

)

Director, Chicago Field Office, in their

)

official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee

MEMORANDUM OPINION AND ORDER

Plaintiff Jose Jimenez Moreno was in the custody of the Winnebego County Sheriff when

the Immigration and Customs Enforcement Division (“ICE”) of the United States Department of

Homeland Security (“DHS”) issued a Form I-247 immigration detainer requesting that the

Sheriff maintain custody of Moreno, upon his release from state custody, for up to forty-eight

hours to provide DHS time to assume custody of him. Plaintiff Maria Jose Lopez, who was

serving time at a federal correctional center in Tallahassee, Florida, was also the subject of an

ICE Form I-247 detainer, requesting that the correctional center maintain custody of her, upon

her release, for up to forty-eight hours. Moreno and Lopez filed this lawsuit, on behalf of themselves and other similarly situated individuals, against the Secretary of DHS1 and other

1

The Secretary of DHS has changed since Plaintiffs filed suit. For the purpose of this

Memorandum Opinion and Order, the Secretary of DHS will be referenced by title only.

federal officials responsible for ICE, alleging that the issuance of the detainers exceeded ICE’s statutory authority under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(2)(A)– (D), and the Immigration and Naturalization Act (“INA”), 8 U.S.C. §§ 1226(a), 1357(a)(2), and 1357(d), and violated their constitutional rights under the Fourth, Fifth, and Tenth Amendments.
Before the Court is Plaintiffs’ amended motion for class certification pursuant to Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2). For the reasons provided herein, the Court grants Plaintiffs’ motion, but modifies the class definition proposed by Plaintiffs. The Court declines to certify Plaintiffs’ proposed sub-class.
Background I. The I-247 Detainer Form ICE is the division of DHS charged with identifying and removing unlawfully present aliens from the United States. Am. Compl. ¶ 15. As part of carrying out that task, ICE’s division of Enforcement and Removal Operations (“ERO”) issues Form I-247 immigration detainers to federal, state, and local law enforcement agencies (“LEAs”). Id. The detainers, which were revised in August 2010, December 2011, and December 2012, contain two main sections. See Pl.’s Mem. Supp. Class Cert., Exs. A, B, C. The first section advises an LEA that DHS has taken an action concerning an individual in the LEA’s custody. Id. The August 2010 version of the detainer form, which was issued to Moreno and Lopez, lists four checkboxes (“”) corresponding to various actions undertaken by DHS: (1) commencement of an investigation to determine whether the individual is subject to removal from the United States; (2) issuance of a Notice to Appear or other charging document initiating removal proceedings; (3) issuance of a warrant of arrest in removal proceedings; and (4) issuance of an order of deportation or removal from the United States. Id., Ex. A. ICE
2

indicates which of these actions are applicable by checking the box next to the corresponding action. Id. In December 2012, ICE revised the first checkbox to state that ICE has “[d]etermined that there is reason to believe the individual is an alien subject to removal from the United States.” Id., Ex. C.
The second section of the detainer form requests that the LEA take certain actions. See id., Exs. A, B, C. DHS can request the LEA to: (1) maintain custody of an individual for a period not to exceed forty-eight hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to assume custody of the individual pursuant to 8 CFR § 287.7; (2) sign and return a copy of the form; (3) notify DHS of the time of release at least thirty days prior to release or as far in advance as possible; (4) notify DHS in the event of the inmate’s death or transfer to another institution; and (5) cancel the detainer. Id. Like the first section, ICE indicates what action it requests the LEA to take by checking a box next to the appropriate action(s). Id.
In December 2011, ICE modified the detainer form to request that the LEA provide a copy of the detainer form to the detained individual. Id., Exs. B, C. ICE also added a section entitled “Notice to the Detainee” and included a telephone number by which the individual could contact ICE if he or she believed the detainer to be improper. Id.
II. The Named Plaintiffs In November 2010, Plaintiff Maria Lopez pleaded guilty to the federal offense of “misprision of a felony.” Am. Compl. ¶ 14. On January 25, 2011, she surrendered herself to the Federal Correctional Institution (“FCI”) in Tallahassee, Florida, to serve a year-long sentence.
3

Id. On February 1, 2011, ICE’s Chicago Area of Responsibility (“AOR”)2 issued an I-247 immigration detainer against Lopez to the FCI. Id., Ex. A.
In the first section of the detainer, DHS advised the FCI that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” Id., Ex. A. In the second section of the detainer, DHS requested that the FCI: (1) maintain custody of Lopez pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Lopez; (2) notify DHS at least thirty days prior to Lopez’s release or as soon as possible; and (3) notify DHS in the event of Lopez’s death or transfer to another institution. Id., Ex. A.
On March 21, 2011, Plaintiff Jose Moreno was arrested in Rockford, Illinois, and taken into state custody. Id. ¶ 13. The next day, he was indicted by the State of Illinois for two felonies: cocaine possession and threatening a public official. Defs.’ Opp’n 4. That same day, ICE’s Chicago AOR issued a Form I-247 immigration detainer against Moreno to the Winnebago County Sheriff. Am. Compl. ¶ 13, Ex. A.
The first section of the detainer advised the Sheriff that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” Id, Ex. A. In the second section, DHS requested that the Sheriff: (1) maintain custody of Moreno pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Moreno; (2) complete, sign, and return the form; (3) notify DHS at least thirty

2

The Chicago AOR for ICE is responsible for Illinois, Indiana, Wisconsin, Missouri, Kentucky,

and Kansas. Am. Compl. ¶ 18. The ERO Field Office for the ICE Chicago AOR (the “ERO Field

Office”) issues detainers for those six states. Defs.’ Opp’n 8 (citing Ex. A, Kaufman Decl. at ¶ 2). The

ERO Field Office also issues detainers for twenty-four additional states on weekends, holidays, and after

normal business hours. Id. (citing Ex. A, Kaufman Decl. at ¶ 2). The Chicago Deport Center, which was

previously run out of the ICE Chicago AOR, issued detainers nationwide, including the detainer issued to

Lopez. Id. (citing Ex. A, Kaufman Dec. at ¶ 4).

4

days prior to Moreno’s release or as soon as possible; and (4) notify DHS in the event of
Moreno’s death or transfer to another institution. Id., Ex. A.
In August 2011, after this case was filed, ICE lifted the detainer against Moreno. Defs.’
Opp’n 5. On November 22, 2011, ICE lifted the detainer against Lopez. Id. 6.
III. Plaintiffs’ Proposed Class Definitions
In their amended motion for class certification, Plaintiffs request that the Court certify the
following class:
All current and future persons against whom ICE has an active immigration detainer that was issued out of its Chicago Area of Responsibility (AOR) where ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA’s detention authority has expired and where ICE has not served a Notice to Appear or other charging document, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal.
Pls.’ Am. Mot. Class Cert. 5.
Moreno also seeks to represent a sub-class consisting of:
Members of the primary class who have had detainers issued against them while they are in state or local LEA [law enforcement agency] custody and where ICE has instructed their further detention pursuant to 8 C.F.R. § 287.7. Id.
Legal Standard
Plaintiffs seek class certification under Fed. R. Civ. P. 23, specifically Rule 23(b)(1) and
(2). To be certified, the proposed class first must meet each of the four requirements of Rule
23(a): numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). Once these
elements are satisfied, Plaintiffs must also demonstrate that class certification is appropriate under Rule 23(b)(1) or Rule 23(b)(2).3

3

Under Rule 23(b)(1), a class action may be maintained if “prosecuting separate actions by or

against individual class members would create a risk of: (A) inconsistent or varying adjudications with

respect to individual class members that would establish incompatible standards of conduct for the party

5

In so doing, Plaintiffs bear the burden of showing that a proposed class satisfies the requirements of Rule 23 by a preponderance of the evidence. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The Court must engage in a “rigorous analysis” to ensure that the requirements of Rule 23 have been satisfied. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 493 (7th Cir. 2012). A “rigorous analysis” helps protect “absent class members whose rights may be affected by the class certification.” Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (internal citation omitted).
That said, the Court should not “turn the class certification proceedings into a dress rehearsal for the trial on the merits.” Messner, 669 F.3d at 811. Of course, the “boundary between a class determination and the merits may not always be easily discernible.” Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 599 (7th Cir. 1993) (internal citations and quotations omitted). Consequently, “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id.; see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (class certification analysis “[f]requently . . . will entail some overlap with the merits of the plaintiff’s underlying claim”). And, as the Seventh Circuit has held, “a district court must make whatever factual and legal inquiries are necessary to ensure that requirements for class certification are satisfied before deciding whether a class should be certified, even if those considerations overlap the merits of the case.” Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010); see Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 889–90 & n.6 (7th Cir. 2011).
opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1). Under Rule 23(b)(2), a class action may be maintained 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).
6

Analysis I. Scope of Class Definition and Class Ascertainability In their opposition to class certification, Defendants initially challenge the class definition proposed by Plaintiffs on two grounds. First, Defendants argue that the class as proposed is overly broad because it includes individuals who may lack Article III standing. Second, Defendants contend that the proposed class and sub-class must fail because they are not reasonably ascertainable. A. Standing According to Defendants, the class proposed by Plaintiffs should not be certified because it includes class members who lack standing. Federal courts are limited by Article III of the Constitution to adjudicating actual cases and controversies, and Article III “requires a litigant to have ‘standing’ to invoke the power of a federal court.” Allen v. Wright, 468 U.S. 737, 750 (1984). In order to establish standing, Plaintiffs must demonstrate: (1) an “injury in fact”; (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Defendants first note that a number of courts of appeal have held that an ICE detainer unaccompanied by a Notice to Appear or a final order of removal “does not cause the subject of the detainer to be in ICE’s custody.”4 Because the Chicago AOR issues detainers to individuals held by LEAs within the jurisdiction of those circuits, Defendants contend that the potential class

4

Defs.’ Opp’n 10 n.6 (citing Cohen v. Lappin, 402 Fed. App’x 674 (3d Cir. 2010); Zolicoffer v.

U.S. Dep’t of Justice, 315 F.3d 538, 539 (5th Cir. 2003); Garcia v. Taylor, 40 F.3d 299, 303–04 (9th Cir.

1994); Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994); Roldan v. Racette, 984 F.2d 85, 88

(2d Cir. 1993); Santana v. Chandler, 961 F.2d 514, 516 (5th Cir. 1992); Prieto v. Gluch, 913 F.2d 1159,

1162 (6th Cir. 1990); Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990); Mohammed v. Sullivan, 866 F.2d

258, 260 (8th Cir. 1989); and Campillo v. Sullivan, 853 F.2d 593 (8th Cir. 1988)).

7

members located in those circuits have failed to demonstrate an “injury in fact.” This argument is unpersuasive.
In denying Defendants’ motion to dismiss, the Court cited Vargas v. Swan, 854 F.2d 1028 (7th Cir. 1988), to hold that the named Plaintiffs had standing to challenge the legality of their future confinement. Nov. 30, 2012, Mem. Op. and Order 7–8.5 The fact that other courts of appeal may have held otherwise does not change this Court’s analysis. In contrast to the “localized nature of state laws, ‘[a] single federal law implies a national interpretation. . . . [E]ach court of appeals considers the [federal] question independently . . . without regard to the geographic location of the events giving rise to the litigation.’” In re Sulfuric Acid Antitrust Litig., 743 F. Supp. 2d 827, 853 (N.D. Ill. 2010) (quoting Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126 (7th Cir. 1993), cert denied, 510 U.S. 1073, 114 S.Ct. 883 (1994)). “‘[B]ecause there is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse circuit interpretations simultaneously is inherently self-contradictory.’” Id. (quoting In re Korean Air Lines Disaster, 829 F.2d 1171, 1175 (D.C. Cir. 1987)). As discussed in the November 30, 2012, order, the Seventh Circuit’s decision in Vargas v. Swan confers standing upon the named Plaintiffs and is binding upon this Court. Accordingly, Defendants’ reliance upon the decision of other circuits is misplaced.

5

Although the Seventh Circuit has not specifically addressed whether the threat of future

confinement alone satisfies the injury-in-fact requirement for claims under the Fourth and Fifth

Amendments, the Court previously found that Vargas, which involved a habeas petition, is sufficiently

analogous to establish an injury flowing from “custody,” which is the very injury that Plaintiffs allege

here. See Nov. 30, 2012, Mem. Op. and Order 7–8. The Court further notes that, like the plaintiff in

Vargas, Plaintiffs here also seek a writ of habeas corpus under 28 U.S.C. § 2241. See Pls. First Am.

Compl. ¶¶ 56–62. Vargas would apply squarely to these claims. The Seventh Circuit in Vargas,

evaluating whether a Form I-247 detainer constituted “custody” for jurisdictional purposes in the habeas

context, held that a court would have jurisdiction if the detainer had “as part of its effect the holding of a

prisoner for a future custodian who has evinced an intent to retake or to decide the prisoner’s status at the

end of his or her current confinement.” 854 F.2d at 1032. ICE detainers issued to cooperating LEAs

place individuals in their custody in this exact situation.

8

Defendants also argue that, to the extent putative class members are in the custody of LEAs who have declined formally to comply with I-247 detainers, such individuals lack standing because they do not face any threat of extended custody. In support, Defendants cite to a number of LEAs that have elected formally not to comply with a request for extended custody contained in an I-247 detainer. Additionally, Defendants cite to the Third Circuit’s recent decision in Galarza v. Szalczyk, 745 F.3d 634, 645 (3d Cir. 2014), which held that the ICE detainers are merely requests and do not compel LEAs to detain suspected aliens for any length of time. According to Defendants, the Galarza case further supports the argument that putative class members in the custody of non-cooperating LEAs lack Article III standing. Defs.’ Supplemental Mem. 2.6
For their part, Plaintiffs first argued that the ICE detainers were mandatory directives, and not requests. Pls.’ Reply 6. In light of Galarza, however, Plaintiffs now concede that the detainers are not mandatory. See Pls.’ Supplemental Memo. 6 (“the detainer regulation cannot be understood as mandatory because any other interpretation would violate the Tenth Amendment.”) Additionally, Defendants now have presented evidence that a number of state and local LEAs have formally declined to cooperate with ICE detainers. For example, the Sheriff of Champaign County, Illinois notified ICE Chicago that his “office will not hold inmates based on a routine detainer.” Defs.’ Opp’n, Ex. B, Sheriff Dan Walsh Champaign Cnty.

6

Although Defendants claim that ICE detainers are merely requests, as Plaintiffs rightly note, the

government’s position as to this issue has not been entirely consistent. See, e.g., Fed. Defs.’ Mem. Supp.

Mot. Dismiss 13, Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, No. CV 08-4220

PJH, ECF No. 31 (“The law is clear that ICE agents may detain, and require other law enforcement

agencies to detain, illegal aliens.” (emphasis added)).

9

Sheriff’s Office. The Sheriff of Cook County, Illinois, also does not comply with ICE detainer requests. Id., Ex. B., 11-0-73 Ordinance.7
To satisfy the injury-in-fact requirement when seeking injunctive and declaratory relief, Plaintiffs must show that they are under threat of suffering an injury that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Based upon the evidence provided by Defendants and the court’s reasoning in Galarza, this Court is persuaded that state and local LEAs are not legally required to comply with I-247 detainers. As a consequence, potential class members in the custody of state and local LEAs that have declined to cooperate with the detainers do not face an actual and imminent threat of future confinement as a result of the detainers’ issuance.8 The Court thus finds that such putative class members lack standing and modifies Plaintiffs’ class definition to include only individuals in the custody of LEAs that cooperate with ICE detainer requests. See Streeter v. Sheriff of Cook Cnty., 256 F.R.D. 609, 611 (N.D. Ill. 2009) (“A district court has broad discretion to certify a class and may modify a proposed class definition if modification will render the definition adequate.”).9

7

Cook County Ordinance 11-0-73 creates an exception in which its LEAs may comply with a

detainer request if “there is a written agreement with the federal government by which all costs incurred

by Cook County in complying with the ICE detainer shall be reimbursed.” Defs.’ Opp’n, Ex. B, 11-0-73

Ordinance. Under 8 C.F.R. § 287.7(e), however, no detainer issued by ICE “shall incur any fiscal

obligation on the part of the Department.” Thus, Cook County has effectively declined to cooperate with

ICE detainer requests.

8

As for detainers issued to federal LEAs, there is no indication that federal LEAs would refuse to

comply with detainers, and it stands to reason that a federal correctional institution would comply with

detainers issued by a sister federal agency.

9

At the pleading stage, the Court denied Defendants’ motion to dismiss and found standing on the

part of the named Plaintiffs. In so doing, the Court was required to consider Plaintiffs’ factual allegations

as true and construed all reasonable inferences, including the risk of future confinement, in their favor.

See November 30, 2012 Order at 8 (“At the motion to dismiss stage when all reasonable inferences are

drawn in favor of the plaintiff . . . it cannot be said based upon the current record that the Plaintiffs’ risk

of future confinement is ‘conjectural’ or ‘hypothetical,’ or that the mandatory language of 8 C.F.R. §

10

In response, Plaintiffs contend that class members held by non-cooperating LEAs still face a threat of future confinement by either the LEA itself or by another LEA to which the individual may be transferred. Pls.’ Reply 6. But Plaintiffs have not offered any evidence to suggest that LEAs who have formally refused to cooperate with ICE detainer requests would instead comply. Similarly, Plaintiffs have not marshalled evidence to support their contention that detainees held by non-cooperating LEAs would be transferred systematically to compliant LEAs. Furthermore, even if a detainee were transferred from a non-cooperating LEA to a cooperating LEA, Plaintiffs have offered no evidence demonstrating that the non-cooperating LEA would notify the compliant LEA of the detainee’s existing immigration detainer.10 Such theories of purported harm are “too speculative” to constitute a cognizable injury-in-fact. See Plotkin v. Ryan, 239 F.3d 882, 886 (7th Cir. 2001).
Turning to Plaintiffs’ proposed sub-class, the purpose of the sub-class was to test whether I-247 detainers issued by ICE to state and local LEAs violated the Tenth Amendment. Pls.’ Am. Mot. Class Cert. 20. Because such detainers are not mandatory directives to state and local LEAs, the Court concludes that they do not, and certification of the proposed sub-class is unnecessary.
B. Ascertainability In order to obtain class certification, Plaintiffs must show “that the class is indeed identifiable as a class.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006) (citing

287.7 is not followed in practice.”). Such a deferential standard contrasts with the “rigorous analysis” that the Court must perform at the class certification stage.

10

The current and previous versions of the Form I-247 immigration detainer also contain a box that

states, “[n]otify this office in the event of the inmate’s death or transfer to another institution.” Pls.’ Am.

Mot. Class Certification, Exs. A-C. Even if ICE were to check that box, Plaintiffs only speculate that a

non-cooperating LEA would in fact notify a cooperating transferee LEA of the detainee’s existing

immigration detainer.

11

Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981), and Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977)). See also Jamie S., 448 F.3d 493 (“a class must be sufficiently definite that its members are ascertainable”). Here, Plaintiffs’ proposed class is comprised of individuals in custody who meet the following criteria: (1) ICE’s Chicago AOR has issued a detainer requesting that the LEA continue to detain the individual after the LEA’s detention authority has expired; (2) ICE has not served a charging document, warrant of arrest for removal, or obtained an order of deportation prior to the issuance of the detainer; and (3) the relevant LEA must be one that cooperates with ICE in implementing the detainers.
Defendants do not dispute that the proposed class is “sufficiently definite” or that it can be identified via “objective criteria.” Cf. EQT Production Co. v. Adair, --- F.3d ----, 2014 WL 4070457, at * 6 (4th Cir. 2014) (“A class cannot be certified unless a court can readily identify the class members in reference to objective criteria.”). Rather, Defendants object to certification on the grounds that “ascertaining membership would require the manual review of tens of thousands of active detainers.” Defs.’ Opp’n 11. But, the necessity of manually reviewing I-247 detainer forms does not preclude certification of the class.
Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539 (6th Cir. 2012), is instructive. There, the putative class consisted of policyholders of five different insurance companies. They claimed that the insurers incorrectly imposed certain charges in violation of state law. The defendants challenged the ascertainability of the class, arguing that “the class is not administratively feasible” because it would require a review of “a great number of policies” issued to the plaintiffs. Id. at 540. In fact, there were more than 14 million policy transactions during the class period. Id. at 540 n.3. The Sixth Circuit, however, rejected the defendants’ reasoning, noting that “[s]everal other courts have found that the size of the potential class and
12

the need to review individual files to identify its members are not reasons to deny class certification.” Id. (collecting cases). Further, it agreed with the district court’s reasoning that “the need to manually review files is not dispositive. If it were, defendants against whom claims of wrongful conduct have been made could escape class-wide review due solely to the size of their businesses or the manner in which their business records were maintained.” Id.
Similarly here, the putative class is “sufficiently definite” and identifiable through “objective criteria.” Identifying those individuals who meet the first criterion is straightforward; Defendants can compile a list of detainees to whom the Chicago AOR has issued an I-247 detainer with the top box checked. Id. 11-12. As for the second criteria, ICE concedes that the information necessary to make this assessment is available as well. Lastly, identifying class members who meet the third criterion is also administratively feasible. The ICE detainer forms contain a bottom section requesting a receipt of acknowledgement from the LEA. See Pl.’s Mem. Supp. Class Cert., Exs. A, B, C. The ICE detainer forms further request that the LEA sign and return the form in an enclosed envelope or by fax. See id. In the 2011 and 2012 versions of the detainer, ICE also suggests that the LEA keep a copy for record-keeping purposes. See id., Exs. B, C. The record indicates that both federal and state LEAs send receipts of acknowledgement to ICE. See Am. Compl., Ex. A (federal receipt of acknowledgement signed for Plaintiff Lopez); Pls. Reply Supp. Mot. Intervene, Ex. A (state receipt of acknowledgement signed for Proposed Intervenor Sergey Mayorov). ICE tracks non-cooperating LEAs, and submitted to the Court a list of these LEAs. See Defs.’ Opp’n, Ex. B. Based upon the list of non-cooperating LEAS submitted by ICE and its receipt of detainer acknowledgements from LEAs, the record indicates that ICE can identify those LEAs that comply with ICE detainers. “The fact that this manual process may be slow and burdensome cannot defeat the
13

ascertainability requirement.” Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125, 136 (S.D.N.Y. 2003).
For these reasons, the Court finds that Plaintiffs have identified an ascertainable class, and the fact that Defendants may need to conduct a manual review to determine the composition of the class is not sufficient grounds for denying class certification.
I. Rule 23(a) A. Numerosity
Under Rule 23(a), Plaintiffs must first demonstrate that “the class is so numerous that joinder of all members is impracticable[.]” Fed. R. Civ. P. 23(a)(1). According to information provided by Defendants, ICE/ERO Chicago has issued more than 23,000 detainers requesting that LEAs hold individuals up to forty-eight hours based on a checkbox indicating that ICE Chicago has either “[i]nitiated an investigation to determine whether this person is subject to removal from the United States” or “[d]etermined that there is reason to believe the individual is an alien subject to removal from the United States.” Pls.’ Am. Mot. Class Cert. 7. Thus, the Court finds that Plaintiffs have demonstrated that the proposed class is sufficiently numerous. See Barragan v. Evanger’s Dog and Cat Food Co., Inc., 259 F.R.D. 330, 331 (N.D. Ill. 2009) (“Although there is no number requiring or barring a finding of numerosity, a class including more than 40 members is generally believed to be sufficient.”).
B. Commonality Rule 23(a) also requires Plaintiffs to demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Furthermore, commonality “does not demand that every member of
14

the class have an identical claim. It is enough that there be one or more common questions of law or fact[.]” Spano v. The Boeing Co., 633 F.3d 574, 585 (7th Cir. 2011). But, as the Supreme Court explained, “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Wal-Mart, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw., 457 U.S. at 157). “Their claims must depend upon a common contention . . . [and] [t]hat common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.
Defendants argue that Plaintiffs have failed to satisfy Rule 23(a)(2)’s commonality requirement because: (1) the existence of probable cause to detain an individual is based on individualized questions of fact and law and not subject to a common answer; (2) the proposed class contains individuals whose detainers have ripened and those whose detention will never be extended; and (3) ICE Chicago issues detainers subject to the law of various federal, state, and local jurisdictions. These arguments are unsupported and do not preclude certification.11
Defendants first contend that the proposed class lacks commonality because, at least as they see it, Plaintiffs are challenging thousands of individual probable cause determinations. Defs.’ Opp’n 16–18. Defendants, however, misunderstand the nature of Plaintiffs’ claims. Rather than challenge the reasonableness or constitutionality of each individual decision to issue a detainer, Plaintiffs are challenging the general policies and procedures used by Defendants when issuing detainers. Specifically, Plaintiffs allege that, whatever the language on the I-247 Forms may have been, Defendants, as a matter of general policy, issued detainers without

11

In their supplemental memorandum, Defendants also argue that Plaintiffs’ putative class lacks

commonality because the detainers are merely requests and certain LEAs do not honor the requests.

Defs.’ Supplemental Mem. 2–3 (citing Galaraza, 745 F.3d at 653–45). Because the Court has modified

the class definition to exclude individuals in the custody of non-cooperating LEAs, this argument is moot.

15

engaging in any analysis to determine whether there was probable cause to believe that the individual in question was subject to removal from the United States.12 See Am. Compl. ¶¶ 36– 45 (alleging that ICE’s standard policies and procedures when issuing detainers without probable cause exceeded Defendants’ statutory authority and violated Fourth Amendment). Additionally, Plaintiffs assert that Defendants did not institute a procedure, by which such individuals could challenge the detainers once they were issued, in a manner that comports with due process. Id. ¶¶ 46–51 (alleging that Defendants failed to provide a sufficient mechanism by which individuals could challenge the detainers in accordance with due process).
These claims present common issues of fact and law that have class-wide application. As discovery has shown, ICE has standard policies and procedures relating to the issuance of detainers, and they are uniformly applied. (See Pls.’ Am. Mot., Ex. D, Dep. Kerry Kauffman 29:19–30:21; 53:3–9; Ex. M, “Interim Policy Number 10074.1: Detainers”; Ex. N, Dec. 21, 2012, “Guidance on the Use of Detainers”.). From this, a number of common questions arise. For example, what analysis, if any, were Defendants required to perform prior to issuing I-247 detainers? What policies and procedures, if any, did Defendants have that governed when I-247 detainers would be issued? What policies and procedures existed regarding how I-247 detainers were tracked and reviewed after they were issued? Plaintiffs’ allegations also present class-wide questions of law. Did the policies and procedures governing the issuance of I-247 detainers meet statutory and constitutional muster? Did Defendants’ post-issuance policies and procedures satisfy due process requirements?

12

The fact that Defendants claim the opposite — that their policies and procedures in fact require a

determination of a “reason to believe” prior to issuing a detainer — goes strictly to the merits of

Plaintiffs’ claims and is an argument better suited for summary judgment.

16

Answering these questions will not require an inquiry into whether probable cause existed for each individual class member. Nor will it require individualized examinations into how detainers were processed and implemented once they were issued. As a result, Plaintiffs’ claims implicate common questions of fact and law capable of classwide resolution. See Rodriguez v. Hayes, 591 F.3d 1105, 1122–24 (9th Cir. 2009) (finding commonality in proposed class of aliens detained without a hearing, because the constitutional question posed by detention of every class member “will largely be determined by its answer”); Spano, 633 F.3d at 585–86; Alliance to End Repression, 565 F.2d at 978–79. Furthermore, to the extent that these procedures and practices were statutorily and constitutionally deficient, the putative class members suffered from the same alleged injury. Borowski v. City of Burbank, 101 F.R.D. 59, 62 (N.D. Ill. 1984) (“[C]ommonality requirement is satisfied as a common question of law exists in the interpretation and validity of the challenged [ordinance].”); see also Does v. City of Indianapolis, Indiana, No. 1:06CV865 RLYWTL, 2006 WL 3365672, at **2, 4 (S.D. Ind. Nov. 20, 2006) (noting that “the very existence of the challenged provisions represents . . . [a] violation of the Constitution,” that “[t]he legal issue uniting all class members is whether the challenged ordinance is constitutional,” and that there is “an assumption of commonality where plaintiffs seek certification of an injunctive class under Rule 23(b)(2) to right alleged constitutional wrongs”) (citing Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y.2001)).
Next, Defendants argue that the proposed class fails Rule 23(a)’s commonality requirement because it contains individuals whose detainers have ripened and individuals whose detention will never be extended. But as explained above, a putative class member in the custody of an cooperating LEA is injured-in-fact when the detainer is issued, because an actual and imminent threat of future confinement exists as of that time. Whether a class member
17

subsequently is held pursuant to the detainer goes more to the extent of the injury rather than the fact of injury itself. In any event, this distinction is largely academic here, where Plaintiffs are seeking declaratory relief that Defendants’ detainer policies are unconstitutional and statutorily unsound and injunctive relief preventing Defendants from subjecting them to these policies. Am. Compl. Prayer for Relief. In short, the proposed class members suffer the same injury in the threat of future confinement, and this injury is not dependent upon whether they subsequently are confined upon their release from the LEA.
The Court also rejects Defendants’ argument that commonality is lacking because the Chicago AOR issues detainers subject to the law of various federal, state, and local jurisdictions. As explained above, this Court is bound by Seventh Circuit precedent and considers federal questions “without regard to the geographic location of the events giving rise to the litigation.” In re Sulfuric Acid Antitrust Litig., 743 F. Supp. 2d at 853 (internal quotations omitted). Because Plaintiffs have demonstrated that the proposed class suffered the same injury based upon common questions of fact and law that are capable of classwide resolution, the Court finds that they have satisfied Rule 23(a)’s commonality requirement.
C. Typicality Defendants also challenge Rule 23(a)’s requirement 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)(4). “The question of typicality in Rule 23(a)(3) is closely related to the . . . question of commonality.” Rosario, 963 F.2d at 1018; see also Barragan, 259 F.R.D. at 334 (same). “A plaintiff’s claim is typical if it: (1) arises from the same event, practice or course of action that gives rise to the claims of the other class members; and (2) the claims of the plaintiff and the class members are based on the same legal theory.” Barragan, 259 F.R.D. at 334 (citing
18

Rosario, 963 F.2d at 1018); see also Chavez v. Don Stoltzner Mason Contractor, Inc., 272 F.R.D. 450, 455 (N.D. Ill. 2011).
Defendants argue that Moreno and Lopez are not typical of the class because their detainers were issued in a form that is no longer in use. Defendants point to three differences between the forms issued to Moreno and Lopez and the detainer forms currently in use: (1) the checkbox that previously stated “an investigation has been initiated” has been changed to state that ICE has determined that there is “reason to believe” an individual is an alien subject to removal; (2) the form now contains a checkbox that instructs the LEA with custody of the detainee to provide a copy of the detainer to the individual; and (3) the form now lists a telephone number that individuals can call if they have a complaint regarding the detainer.
First, regardless of the change in language of the detainer forms, the evidence indicates that the procedures employed by the Chicago AOR to investigate and issue detainers have not changed.
Q: Were there any changes to the procedures followed by the Chicago AOR when the new detainer form was released?
A: No, the procedures for issuing a detainer didn’t change, just basically the detainer form did.
Q: . . . [S]ince the new form . . . was issued, has the Chicago AOR changed its procedures for investigating a detainer?
A: No. Pls.’ Am. Mot. Class Cert., Ex. A, Dep. Kerry Kauffman 73:20–74:4. Because Plaintiffs allege that ICE issued detainers without probable cause as a matter of policy, and the policy for investigating and issuing detainers has not changed, Moreno’s and Lopez’s claims remain typical of the class despite the revisions to the form. See De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (“The typicality requirement may be satisfied even if there are
19

factual distinctions between the claims of the named plaintiffs and those of other class members. Thus, similarity of legal theory may control even in the face of differences of fact.”) (internal citation omitted).
Similarly, the crux of Plaintiffs’ due process claim is that the procedures created by Defendants to permit individuals to contest I-247 detainers (to the extent any procedures exist) are insufficient to satisfy constitutional requirements. The revisions to the detainer form requesting that the LEA provide a copy of the form to the detained individual and indicating a telephone number for the individual to call may have some relevance in assessing this question, but Defendants have not argued (nor can they) that these changes in and of themselves were sufficient to satisfy due process requirements.13 The spotlight of the due process inquiry then remains on the overall policies and procedures that Defendants employed to hear and resolve objections to the detainers by individuals who were subject to them. In this way, Moreno and Lopez’s due process claims are typical of those of the rest of the class.14
Simply put, Moreno and Lopez’s claims arise from the same policies and procedures as those of the proposed class. Furthermore, their claims are based upon the same legal theories, i.e., that Defendants’ policies and procedures (or lack thereof) with respect to detainers exceeded Defendants’ statutory authority and violated the class members’ Fourth Amendment and due process rights. Accordingly, Plaintiffs have satisfied the typicality requirement of Rule 23(a)(4).

13

For example, there is evidence that Defendants had no authority to require cooperating LEAs to

provide individuals with a copy of the detainers and did not keep track of whether LEAs complied with

that request. Pls.’ Am. Mot. Ex. K at 4–5. Similarly, the mere fact that the detainer form listed a

telephone number does not prove what if anything was done when individuals called it.

14

To the extent that the differences in the forms create a conflict among class members during the

course of these proceedings, the Court has the discretion to create subclasses corresponding to the time

periods during which the different versions of the detainer form were used. See, e.g., Thomas v. Matrix

Corp. Servs., No. 10 C 5093, 2012 WL 3581298, at *3 (N.D. Ill. Aug. 17, 2012) (creating time-delimited

subclasses) (citing Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 888 (7th Cir. 2011)). For

the reasons explained, they do not preclude certification now.

20

D. Adequacy Finally, Rule 23 requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The adequate representation inquiry consists of two parts: (1) the adequacy of the named plaintiffs as representatives of the proposed class’s myriad members, with their differing and separate interests, and (2) the adequacy of the proposed class counsel.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011). Defendants do not challenge the adequacy of the proposed class counsel. Instead, Defendants cite to Arreola v. Godinez, 546 F.3d 788 (7th Cir. 2008), and argue that Moreno and Lopez are inadequate class representatives because they are no longer subject to an ICE detainer. Defs.’ Opp’n 15. In doing so, Defendants once again argue that the named Plaintiffs lack standing and that their claims are moot, but these arguments have already been rejected by the Court. In any event, Arreola does not stand for the broad proposition, as Defendants suggest, “that a named plaintiff no longer suffering an injury cannot serve as an adequate representative of an injunction-seeking class.” Id. The plaintiff in Arreola filed suit seeking to represent a class of inmates who were prohibited from using crutches in certain units of the jail. 546 F.3d at 791–93. In finding that the plaintiff was not an adequate class representative, the Seventh Circuit noted that “[b]y the time [plaintiff] filed the lawsuit, he was no longer at the Jail.” Id. at 799. The Seventh Circuit reasoned, “[t]o permit the certification of a class headed by a ‘representative’ who did not have a live controversy with the defendant on the day the suit began would be to jettison the last vestiges of the case-or-controversy requirement in class actions.” Id. (quoting Holmes v. Fisher, 854 F.3d 229, 233 (7th Cir. 1988)). Unlike the plaintiff in Arreola, Moreno and Lopez had live controversies at the time they filed suit. As the Court mentioned in its November 30, 2012, Order, Moreno and Lopez had
21

active immigration detainers lodged against them on the day their suits commenced, and they have sufficiently demonstrated an injury-in-fact. Nov. 30, 2012, Mem. Op. and Order 6–9. Furthermore, the fact that Defendants removed Moreno’s and Lopez’s detainers does not moot their claims for the reasons previously discussed. Id. 9–11.15 Because the named Plaintiffs’ claims are not moot and they suffered an injury-in-fact similar to that of the putative class members, the Court is satisfied that Moreno and Lopez are adequate class representatives.16
II. Rule 23(b)(1) and (2) Once Rule 23(a) is satisfied, the proposed class must also fall within one of the three categories enumerated in Rule 23(b): “(1) a mandatory class action (either because of the risk of incompatible standards for the party opposing the class or because the risk that the class action adjudication would, as a practical matter, either dispose of the claims of non-parties or substantially impair their interests), (2) an action seeking final injunctive or declaratory relief, or (3) a case in which the common questions predominate and class treatment is superior.” Spano, 633 F.3d at 583; Fed. R. Civ. P. 23(b)(1)-(2). Plaintiffs move to certify their class under Rule 23(b)(1) and (2). A court may certify a class under Rule 23(b)(1)(A) if individual adjudications “would create a risk of: inconsistent or varying adjudications with respect to individual class members

15

The Court previously has held that Moreno’s and Lopez’s claims met the two elements of the

“inherently transitory” exception: (1) it must be uncertain that a claim will remain live for any individual

who could be named as a plaintiff long enough for a court to certify the class; and (2) there must be a

“constant class of persons suffering the deprivation complained of in the complaint.” Olson v. Brown,

594 F.3d 577, 577, 582 (7th Cir. 2010) (citing Gernstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)).

16

Defendants also devote four sentences in arguing that Plaintiffs are inadequate class

representatives because their detainers never ripened. Defs.’ Opp’n 15–16. As the Court previously

explained, Moreno and Lopez suffered an injury-in-fact from the threat of future detention and the fact

that Defendants lifted the detainers does not make their claims moot. Nov. 30, 2012, Mem. Op. and

Order 6–11.

22

that would establish incompatible standards of conduct for the party opposing the class.” Plaintiffs contend that ICE’s standard policies and procedures used to issue detainers violate their Fourth Amendment and due process rights. Here, individual adjudications would create a risk of inconsistent results that would establish incompatible standards of conduct for Defendants. If a court finds any portion of Defendants’ challenged policies and procedures to be unconstitutional, Defendants would be required to modify the infringing policy or procedure. If another court, however, rules otherwise, Defendants would not be required to modify the same policies and procedures. Because individual adjudications could establish incompatible standards of conduct for Defendants, certification of Plaintiffs’ class under Rule 23(b)(1)(A) is appropriate.
In their brief, Defendants claim that Plaintiffs fail to satisfy the requirements of Rule 23(b)(1)(A) because Plaintiffs challenge individual probable cause determinations in which varying adjudications would be proper. As noted above, Plaintiffs challenge Defendants’ general detainer policies and procedures, not individual probable cause determinations.
Defendants also cite Portis v. City of Chicago, Illinois, 613 F.3d 702 (7th Cir. 2010), and Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008), and argue that “it is unclear why an individual adjudication regarding those [national] policies would not have the same effect as a class action without the management issues inherent to a certified class.” But Defendants’ position does not find support in these cases. In Portis, the Seventh Circuit reversed the district court’s certification of a class because “common questions d[id] not predominate,” not because the class failed to meet Rule 23(b)(1) as Defendants suggest. 613 F.3d at 705–06. Likewise in Rahman, the Seventh Circuit did not reverse the district court’s certification of a class because the class failed to meet Rule 23(b)(1). 530 F.3d at 626–28. Instead, the court found the certified class too
23

broad and equivalent to a class of “all persons in the United States who have been, or ever will
be, stopped without probable cause.” Id. at 626.
Alternatively, a court may certify a class under Rule 23(b)(2) if a defendant has “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.” Plaintiffs allege Defendants
have refused to modify their constitutionally infirmed policies and procedures related to the
issuance and implementation of detainers. Because Plaintiffs seek a declaratory judgment and
injunctive relief that would inure to the benefit of the entire class, certification under Rule
23(b)(2) is also appropriate. See 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1772 8–10 (2005) (noting it is “common for an action to fall
under Rule 23(b)(1) and one of the other categories in Rule 23(b)” and actions maintained under
both Rule 23(b)(1) and Rule 23(b)(2) “are treated alike for purposes of notice to passive class members and in measuring the effect of the judgment”).17
Conclusion
For the reasons discussed herein, the Court grants Plaintiffs’ motion for class certification
in part and certifies a class defined as follows:
All current and future persons against whom Immigration and Customs Enforcement (ICE) has issued an immigration detainer of the Chicago Area of Responsibility where: (1) ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA’s authority has expired; (2) where ICE has not served a Notice to Appear or other charging documents, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal with respect to the individual; and (3) where the LEA cooperates with ICE in complying with detainers.

17

Defendants repeat their argument that they changed the I-247 detainer forms and therefore

addressed the concerns raised by Plaintiffs in this case. However, as noted above, it is not at all clear

based upon the current record whether the two modifications upon which Defendants rely are sufficient in

and of themselves to address the constitutional deficiencies asserted by Plaintiffs.

24

SO ORDERED

ENTER: 9/30/14
___________________________ JOHN Z. LEE United States District Judge

25

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and

)

all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security (DHS);

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement (ICE) )

and Removal Operations (ERO);

)

DAVID C. PALMATIER, Unit Chief,

)

ICE/ERO Law Enforcement Support Center )

(LESC); RICARDO WONG, ICE/ERO

)

Director, Chicago Field Office, in their

)

official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

Plaintiff Jose Jimenez Moreno was in the custody of the Sheriff of Winnebego county,

Illinois, and Plaintiff Maria Jose Lopez was in the custody of the federal correctional center in

Tallahassee, Florida, when they became the subjects of Form I-247 immigration detainers issued

by the Immigration and Customs Enforcement Division (“ICE”) of the United States Department

of Homeland Security (“DHS”). The detainers requested that the respective local law

enforcement agency (“LEA”) retain custody of Moreno and Lopez, upon their release, up to 48

additional hours. Moreno and Lopez filed this lawsuit, alleging that ICE’s issuance of the Form

I-247 retainers exceeded its authority under the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 706(2)(A)–(D), and the Immigration and Naturalization Act (“INA”), 8 U.S.C. §§ 1226(a),

1357(a)(2), and 1357(d) (Claim I). Plaintiffs also assert that the retainers violated Plaintiffs’

rights under the Fourth and Fifth Amendment (Claims II and III) and contravened the Tenth Amendment by compelling state and local LEAs to enforce a federal regulatory scheme (Claim IV).
Before the Court are the parties’ cross-motions for partial judgment on the pleadings as to Claims I and IV. For the reasons provided herein, the Court denies both parties’ motions as to Claim I and grants Defendants’ motion as to Claim IV.
Factual Background1 I. The I-247 Detainer Form ICE is the division of DHS charged with identifying and removing unlawfully present aliens from the United States. Amend. Compl. ¶ 15. As part of carrying out that task, ICE’s division of Enforcement and Removal (“ERO”) issues Form I-247 immigration detainers to federal, state, and local LEAs. Id. These detainers contain two main sections. Id., Ex. A (Immigration Detainer – Notice of Action). The first section advises a LEA that DHS has taken an action concerning an individual in the LEA’s custody. Id. The detainer form issued to Moreno and Lopez lists four checkboxes (“”) corresponding to various actions undertaken by DHS: (1) commencement of an investigation to determine whether the individual is subject to removal from the United States; (2) issuance of a Notice to Appear or other charging document initiating removal proceedings; (3) issuance of a warrant of arrest in removal proceedings; and (4) issuance of an order of

1

When reviewing a motion under Rule 12(c), the Court considers the facts alleged in the pleadings in the

light most favorable to the nonmoving party. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.

2009). The facts set forth herein are not disputed.

2

deportation or removal from the United States. Id., Ex. A. ICE indicates which of these actions are applicable by checking the box next to the corresponding action. Id.2
The second section of the detainer form requests that the LEA take certain actions. Amend. Compl., Ex. A. DHS can request the LEA to: (1) maintain custody of an individual for a period not to exceed forty-eight hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to assume custody of the individual pursuant to 8 CFR § 287.7; (2) sign and return a copy of the form; (3) notify DHS of the time of release at least thirty days prior to release or as far in advance as possible; (4) notify DHS in the event of the inmate’s death or transfer to another institution; and (5) cancel the detainer. Id. Like the first section, ICE indicates what action it requests the LEA to take by checking a box next to the appropriate action(s). Id.3
B. The Named Plaintiffs In November 2010, Plaintiff Maria Lopez pleaded guilty to the federal offense of “misprision of a felony.” Am. Compl. ¶ 14. On January 25, 2011, she surrendered herself to the Federal Correctional Institution (“FCI”) in Tallahassee, Florida, to serve a year-long sentence. Id. On February 1, 2011, ICE’s Chicago Area of Responsibility (“AOR”)4 issued an I-247 immigration detainer against Lopez to the FCI. Id., Ex. A.

2

In December 2012, ICE revised the first checkbox to state that ICE has “[d]etermined that there is

reason to believe the individual is an alien subject to removal from the United States.” See Pl.’s Mem.

Supp. Class Cert., Exs. A, B, C.

3

In December 2011, ICE modified the detainer form to request that the LEA provide a copy of the

detainer form to the detained individual. See Pl.’s Mem. Supp. Class Cert., Exs. B, C. ICE also added a

section entitled “Notice to the Detainee” and included a telephone number by which the individual could

contact ICE if he or she believed the detainer to be improper. Id.

4

The Chicago AOR for ICE is responsible for Illinois, Indiana, Wisconsin, Missouri, Kentucky,

and Kansas. Am. Compl. ¶ 18. The ERO Field Office for the ICE Chicago AOR (the “ERO Field

Office”) issues detainers for those six states. Defs.’ Opp’n 8 (citing Ex. A, Kaufman Decl. at ¶ 2). The

ERO Field Office also issues detainers for twenty-four additional states on weekends, holidays, and after

3

In the first section of the detainer, DHS advised the FCI that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” Id., Ex. A. In the second section of the detainer, DHS requested that the FCI: (1) maintain custody of Lopez pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Lopez; (2) notify DHS at least thirty days prior to Lopez’s release or as soon as possible; and (3) notify DHS in the event of Lopez’s death or transfer to another institution. Id., Ex. A.
On March 21, 2011, Plaintiff Jose Moreno was arrested in Rockford, Illinois, and taken into state custody. Id. ¶ 13. That same day, ICE’s Chicago AOR issued a Form I-247 immigration detainer against Moreno to the Winnebago County Sheriff. Am. Compl. ¶ 13, Ex. A.
The first section of the detainer advised the Sheriff that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States.” Id, Ex. A. In the second section, DHS requested that the Sheriff: (1) maintain custody of Moreno pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Moreno; (2) complete, sign, and return the form; (3) notify DHS at least thirty days prior to Moreno’s release or as soon as possible; and (4) notify DHS in the event of Moreno’s death or transfer to another institution. Id., Ex. A.
Legal Standard Federal Rule of Civil Procedure (“Rule”) 12(c) permits a party to move for judgment on the pleadings after the complaint and answer have been filed. See Fed. R. Civ. P. 12(c). A Rule 12(c) motion for judgment on the pleadings is “designed to provide a means of disposing of
normal business hours. Id. (citing Ex. A, Kaufman Decl. at ¶ 2). The Chicago Deport Center, which was previously run out of the ICE Chicago AOR, issued detainers nationwide, including the detainer issued to Lopez. Id. (citing Ex. A, Kaufman Dec. at ¶ 4).
4

cases when the material facts are not in dispute and a judgment on the merits can be achieved by focusing on the content of the pleadings and any facts of which the court will take judicial notice.” Cincinnati Ins. Co. v. Contemporary Distrib., Inc., No. 09 C 2250, 2010 WL 338943, at *2 (N.D. Ill. Jan. 26, 2010) (quoting All Amer. Ins. Co. v. Broeren Russo Const., Inc., 112 F. Supp. 2d 723, 728 (C.D. Ill. 2001)). For the purposes of a Rule 12(c) motion, the pleadings consist of the complaint, answer, and any written documents attached as exhibits. Hous. Auth. Risk Retention Grp. Inc. v. Chi. Hous. Auth., 378 F.3d 596, 600 (7th Cir. 2004) (citing Fed. R. Civ. P. 12(c)).
Courts review Rule 12(c) motions using the same standard that applies when reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6): the facts in the pleadings are viewed in the light most favorable to the nonmoving party, and the motion will be granted “only if it appears beyond doubt that the [nonmoving party] cannot prove any facts that would support his claim for relief.” Buchanan-Moore, 570 F.3d at 827. “Thus to succeed, the moving party must demonstrate that there are no material issues of fact to be resolved.” N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998).
Analysis I. Claim I – Exercise of Detainer Authority In Claim I of their Amended Complaint, Plaintiffs allege that Defendants’ application of the immigration detainer regulations and issuance of I-247 detainers exceed Defendants’ constitutional and statutory authority in violation of 5 U.S.C. §§ 706(2)(A)-(D).5 Amend.

5

5 U.S.C. § 706(2) permits a reviewing court to “hold unlawful and set aside agency action,

findings, and conclusions found to be – (A) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess

of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance

of procedure required by law[.]”

5

Compl. ¶ 39. For their part, Defendants construe Claim I as arguing that ICE lacks the statutory authority to issue detainers at all under the relevant provisions of the INA, 8 U.S.C. §§ 1226(a), 1357(a)(2), and 1357(d). Based on this construction, Defendants argue that judgment on the pleadings is appropriate, because ICE issues immigration detainers pursuant to 8 C.F.R. § 287.7, which is within the statutory framework of the INA.
Although Defendants’ argument may be correct as a matter of law, their view of Claim I is incorrect. Rather than challenging ICE’s authority to issue detainers in the first instance, Plaintiffs here assert that the manner in which ICE exercises that authority when issuing detainers is contrary to and unsupported by 8 U.S.C. §§ 1226(a), 1357(a)(2), and 1357(d).6 Specifically, Plaintiffs allege that ICE exceeds its statutory and constitutional authority under 5 U.S.C. §§ 706(2)(A)-(D) when it issues detainers without probable cause, without providing the subject with notice, and without providing a sufficient mechanism by which the subject can challenge the grounds for the detainer. See Amend. Compl. ¶¶ 20–21, 42 (probable cause); 22, 48 (notice); 23, 49 (lack of challenge mechanism).
In response, Defendants deny Plaintiffs’ allegations and claim that their exercise of authority meet statutory and constitutional muster because: (1) the detainers are not issued unless there is “reason to believe” the individual is subject to removal from the United States; (2) the updated detainer form instructs LEAs to provide notice of the detainers to the individuals; and (3) the updated detainer form contains a telephone number by which the individual can contact ICE if he or she believes the detainer was not issued correctly. Determining whether

6

See Amend. Compl. ¶ 1 (“ICE’s exercise of detainer authority, however, regularly exceeds its

statutory authority”); id. ¶ 37 (“Defendants’ failure to restrict its issuance of detainers to its authority

under the INA . . .”); id. ¶ 38 (“Defendants’ failure to issue detainers in accordance with due process

protections required by the relevant provisions of the INA . . . “); see also Pls.’ Mot. Partial J. Pleadings

1–2 (“Plaintiffs contend that Defendants’ exercise of authority under that regulation . . . exceeds the

authority granted to immigration officers and employees under the statute.”).

6

Defendants’ exercise of their immigration detainer authority comports with ICE’s statutory authority and constitutional parameters will require the Court to resolve material issues of fact regarding Defendants’ immigration detainer policies and procedures.7 Faced with this argument, Defendants concede that “the question of how ICE exercises its authority under 8 C.F.R. § 287.7 is a factual issue that has been the subject of intense discovery[.]” Defs.’ Reply 2. Because there are material issues of fact to resolve, the Court denies Defendants’ motion for judgment on the pleadings as to Claim I.
Plaintiffs, on the other hand, argue that the Court should grant their respective motion for judgment on the pleadings because Defendants’ practice of issuing detainers without a warrant, finding a risk of flight, or provision of a prompt hearing exceeds ICE’s authority under 8 U.S.C. §§ 1226(a)8 and 1357(a)(2). Although Defendants do not issue warrants prior to issuing the immigration detainers under § 1226(a), § 1357(a) provides different circumstances under which ICE may detain or arrest an individual without a warrant. Therefore, in order for the Court to determine whether ICE’s issuance of detainers exceeds its statutory authority and violates Plaintiffs’ constitutional rights, the Court must resolve material issues of fact. For example, based solely on the pleadings, the Court cannot determine whether, under 8 U.S.C. § 1357(a), ICE issues detainers after (1) having found reason to believe that the particular alien violated an immigration law or committed a felony; and (2) whether the alien is likely to escape before a

7

For example, Defendants claim that, under their policies and procedures, detainers are not issued

unless there is a “reason to believe” the individual is subject to removal from the United States. See Defs.

Mot. Judg. Pleadings 2. Plaintiffs, however, contend that Defendants’ policies and procedures allow

detainers to be issued without a “reason to believe” the individual is subject to removal from the United

States. See Pls. Opp’n Defs.’ Mot. Judg. Pleadings 6–7. Determining whether Defendants’ exercise of

authority used to issue detainers violate Plaintiffs’ constitutional rights will require this Court to look

beyond the pleadings and resolve material issues of fact regarding Defendants’ policies and practices.

8

8 U.S.C. § 1226(a) provides that “[o]n warrant issued by the Attorney General, an alien may be

arrested and detained pending a decision on whether the alien is to be removed from the United States.”

7

warrant can be obtained for his arrest. Therefore, the Court also denies Plaintiffs’ motion for judgment on the pleadings as to Claim I.
II. Claim IV – Commandeering Under the Tenth Amendment Turning to Claim IV of Plaintiffs’ Amended Complaint, Plaintiffs allege that Defendants’ issuance of immigration detainers requires LEAs to maintain custody of an individual for a period not to exceed forty-eight hours in violation of the Anti-Commandeering Principle of the Tenth Amendment. Amend. Compl. ¶ 54. Plaintiffs argue that Defendants’ detainers are mandatory for LEAs because 8 C.F.R. § 287.7 contains the word shall: “upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours[.]” 8 C.F.R. § 287.7(d) (emphasis added). Defendants, on the other hand, point to 8 C.F.R. § 287.7(a) which states that a “a detainer serves to advise another law enforcement agency that the Department seeks custody of an alien . . . [and] [t]he detainer is a request that such agency advise the Department[.]” (emphasis added). Both parties now move for judgment on the pleadings as to Claim IV. Since the parties filed their briefs, the Third Circuit issued a decision holding that ICE detainers are requests that do not violate the Tenth Amendment. Galarza v. Szalczyk, 745 F.3d 634, 636 (3d Cir. 2014). Acknowledging the Third Circuit’s decision, Plaintiffs now concede “that the detainer regulation cannot be understood as mandatory because any other interpretation would violate the Tenth Amendment.” Pls.’ Supplemental Memo. 6. In light of Plaintiff’s concession, the Court grants Defendants’ motion for judgment on the pleadings as to Claim IV.
8

Conclusion For the reasons discussed herein, the Court denies both parties’ motions as to Claim I, grants Defendants’ motion as to Claim IV, and denies Plaintiffs’ motion as to Claim IV.

SO ORDERED

ENTER: 9/29/14
_______________________ JOHN Z. LEE United States District Judge

9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and

)

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security (DHS);

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement (ICE); )

DAVID C. PALMATIER, Unit Chief,

)

Law Enforcement Support Center (LESC); )

RICARDO WONG, Chicago Field Office

)

Director, in their official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee

MEMORANDUM OPINION AND ORDER

Congress has given the Immigration and Customs Enforcement Division (ICE) of the

United States Department of Homeland Security (DHS) the authority to arrest and detain any

individual whom ICE has probable cause to believe is a removable alien. As a purported exercise

of this authority, ICE issues “immigration detainers” to local law enforcement agencies (LEAs).

An immigration detainer is a request that the agency hold an inmate, whom ICE suspects of

being a removable alien, for up to forty-eight hours after the inmate otherwise would be released,

in order to give ICE the opportunity to take the alien into custody. Plaintiffs—a class of

individuals who have been targeted by ICE detainers—challenge ICE’s authority to issue these

detainers on multiple constitutional and statutory grounds.

Currently before the Court are Defendants’ motion to decertify the class and Plaintiffs’

motion for summary judgment. As explained below, the Court concludes that the certified class

continues to satisfy the requirements of Federal Rule of Civil Procedure 23 for the purposes of Plaintiffs’ statutory claim that the detainer program, as it currently operates, exceeds the statutory authority Congress has granted to DHS by seeking to detain individuals without a warrant and without a determination by ICE that the individuals are “likely to escape” within the meaning of 8 U.S.C. § 1357(a)(2). The Court also concludes that Plaintiffs are entitled to summary judgment as to this claim. As a result, the Court denies Defendants’ motion to decertify the class and grants Plaintiffs’ motion for summary judgment.
I. Factual & Procedural Background In 2011, Plaintiff Jose Jimenez Moreno, an American citizen, was in the custody of the Sheriff of Winnebago County, Illinois, when ICE issued an immigration detainer against him. The same year, Plaintiff Maria Jose Lopez, a lawful permanent resident, was serving a sentence at a federal correctional center in Tallahassee, Florida, when she also became the subject of an ICE immigration detainer. These detainers requested that the respective recipients hold Moreno and Lopez for up to forty-eight hours after they would otherwise be released in order to give ICE the opportunity to take custody of them. Neither Moreno nor Lopez was in fact a removable alien. While still incarcerated for the non-immigration offenses, they filed this lawsuit on behalf of themselves and other similarly situated individuals, claiming that ICE’s issuance of detainers violated the Fourth, Fifth, and Tenth Amendments to the United States Constitution and exceeded ICE’s statutory authority. When Moreno and Lopez filed suit, the immigration detainers issued against them were still in place, though the detainers had not yet extended their incarceration. Soon after they filed, however, ICE rescinded their detainers and moved to dismiss their complaint for lack of
2

jurisdiction, arguing that Moreno and Lopez lacked standing and, alternatively, that their claims had been mooted by the rescission of their detainers.
On the question of standing, the Court explained that standing is assessed only with regard to the date the complaint was filed. Moreno v. Napolitano, No. 11 C 5452, 2012 WL 5995820, at *4–5 (N.D. Ill. Nov. 30, 2012). Moreno and Lopez, the Court concluded, had standing when they filed their complaint because they faced imminent detention pursuant to the detainers issued against them. Id. On the question of mootness, the Court explained that, although the detainers targeting Moreno and Lopez had been rescinded, the “inherently transitory” exception to mootness applied. Id. at *6–7. Defendants’ motion to dismiss therefore was denied.
In another opinion, the Court denied Plaintiffs’ motion for partial judgment on the pleadings, explaining that the factual record would need to be developed before Plaintiffs’ claims could be decided. Moreno v. Napolitano, No. 11 C 5452, 2014 WL 4814776, at *1, *4 (N.D. Ill. Sept. 29, 2014). In the same opinion, the Court granted in part Defendants’ cross-motion for partial judgment on the pleadings, dismissing Plaintiffs’ Tenth Amendment claim. Id. at *1, *5. The Tenth Amendment claim had been premised on the idea that ICE unconstitutionally commandeered state officials by requiring them to detain suspected removable aliens, but Plaintiffs had since conceded that the immigration detainers were mere requests to local law enforcement rather than orders. Id. at *5.
In the most recent opinion in this case, the Court granted Plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23(b)(1) and (b)(2). Moreno v. Napolitano, No. 11 C 5452, 2014 WL 4911938, at *1 (N.D. Ill. Sept. 30, 2014). One of Defendants’ arguments in opposition to certification was that the “commonality” and “typicality”
3

requirements of Rule 23(a) could not be met because ICE’s immigration detainer forms had
changed since the original detainers targeting Moreno and Lopez had been issued. Id. at *8. The
form used against Moreno and Lopez had stated only that an “investigation has been initiated”
into their immigration status, resulting in the issuance of the detainer, while the new form stated
that ICE “has reason to believe” that the target of the detainer is subject to removal. Id. at *9. But
the Court rejected this argument because ICE witnesses testified that the actual process for
issuing detainers had not changed. Id.
Another of Defendants’ arguments in opposition to class certification was that the
“adequacy” requirement of Rule 23(a)(4) was not satisfied because ICE had rescinded Moreno’s
and Lopez’s detainers, meaning that their stake in the case was small compared to the interests of
other class members. But the Court rejected this argument as well, explaining that the existence
of a live controversy on the day Moreno and Lopez filed suit was enough to make them adequate
class representatives. Id. at *10–11.
The Court then provided this definition of the certified class:
All current and future persons against whom Immigration and Customs Enforcement (ICE) has issued an immigration detainer of the Chicago Area of Responsibility where: (1) ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA’s authority has expired; (2) where ICE has not served a Notice to Appear or other charging documents, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal with respect to the individual; and (3) where the LEA cooperates with ICE in complying with detainers.
Id. at *12.
Since this class was certified, ICE has again created new immigration detainer forms.
One of the new forms, DHS Form I-247D, is used to request detention of a subject for up to
forty-eight hours, when the subject is considered to be a priority for removal because he or she is
4

suspected of terrorism, has a prior felony conviction, or has three prior misdemeanor convictions. See Defs.’ Ex. B, DHS Form I-247D. Another form, DHS Form I-245X, is used to request a detention of up to forty-eight hours, when the subject is a removal priority for some other reason, such as having committed a significant abuse of a visa program. See Defs.’ Ex. C, DHS Form I245X. A third, DHS Form I-247N, is used simply to request advance notification of the subject’s release date. See Defs.’ Ex. A, DHS Form I-247N.
Both of the new forms that request detention state that the issuing immigration officer has developed probable cause to believe that the targeted individual is a removable alien. Both forms also include check boxes for the issuing officer to indicate the basis for the probable cause determination. The choices are (1) the existence of a final order of removal, (2) the pendency of ongoing removal proceedings, (3) biometric confirmation that the subject is a person known to be removable, (4) statements made by the subject that indicate removability, and (5) “other reliable evidence” of removability. Defs.’ Ex. B, DHS Form I-247D; Defs.’ Ex. C, DHS Form I245X. Additionally, the current forms state that they are not effective unless and until they are served on the subject, whereas the earlier version merely asked that the form be served on the subject. And the current forms request that the subject be detained up to forty-eight hours including weekends and holidays, whereas the previous versions excluded weekends and holidays from the detention calculation.
II. Analysis A. Motion To Decertify Class Defendants have moved to decertify Plaintiffs’ class, arguing that the “commonality” requirement of Rule 23(a)(2) is no longer satisfied. Defs.’ Mem. Supp. Decert. at 9–11. “Commonality requires the plaintiff to demonstrate that the class members have suffered the
5

same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). The plaintiffs’ claims “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution.” Id. at 351. In other words, the claims must present common questions that will generate common answers. Id.
According to Defendants, because the current detainer forms require the issuing immigration officer to have probable cause to believe the subject is a removable alien, the class members targeted by these forms have not suffered the same alleged Fourth Amendment violation suffered by other class members, who were subjects of earlier versions. Additionally, Defendants point out that Plaintiffs’ due process claims also are based on the earlier forms, which were materially different from the current versions because they excluded weekends and holidays from the calculation of the detention period and did not specify that the detainer would be effective only upon service to the suspected alien. In sum, Defendants argue that, because of the new forms, “the class is comprised of individuals that were, are, or will be subject to two very different standards.” Defs.’ Mem. Supp. Decert. at 10. Defendants’ challenges to the typicality and adequacy requirements of Rule 23(a) are based on substantially identical grounds. Id. at 11–13.
Plaintiffs respond that their claims continue to present common questions that will generate common answers. They deny that the addition of the words “probable cause” to the new detainer forms have changed anything about ICE’s process for issuing detainers, and they deny that the due process claims in this case are affected by the changes Defendants cite. Additionally, they contend their claims that ICE’s actions exceed its statutory authority are not impacted in any way by the changes to the detainer forms.
6

The Court concludes that the class should not be decertified, at least with respect to one of Plaintiffs’ statutory claims. Even if ICE has changed its practices in a way that destroys commonality, typicality, or adequacy as to Plaintiffs’ constitutional claims, Defendants do not argue that the changes they invoke warrant decertification as to Plaintiffs’ claim that ICE’s practice of issuing detainers without obtaining a warrant exceeds its statutory authority under 8 U.S.C. § 1357(a)(2). Nor can they.
As discussed more fully below, under 8 U.S.C. § 1357(a)(2), ICE may detain an alien without a warrant, but only if ICE has “reason to believe” that the alien “is likely to escape before a warrant can be obtained for his arrest.” Plaintiffs’ claim that ICE’s detainer program violates this provision raises a number of central and determinative factual and legal issues that are common to the class, including: whether it is ICE’s practice to obtain (or try to obtain) warrants before issuing detainers; whether it is ICE’s practice to make a determination that an alien “is likely to escape” before issuing a detainer; and, if the answers to the previous questions are negative, whether it is a violation of § 1357(a)(2) for ICE to issue detainers to LEAs without first doing so. The reasons Defendants offer for decertification—that ICE makes an individualized probable cause determination that a target is a removable alien before it issues a detainer and that varying versions of detainer forms were used during different time periods—are not relevant to this claim. Accordingly, the Court finds that the Plaintiffs’ statutory claim based upon 8 U.S.C. § 1357(a)(2) remains amenable to class treatment pursuant to Rule 23(b)(1) and 23(b)(2).
As for Defendants’ request to decertify Plaintiffs’ constitutional claims, as will be seen, there is no need to decide this question because this case can be resolved based upon Plaintiffs’
7

statutory claim. And the Court, adhering to the well-established principle of judicial restraint, will not reach Plaintiffs’ constitutional claims.
One final note, as part of their submissions, Defendants argue that the class should be decertified because, under the new forms, ICE does not “instruct” the LEA to comply with the detainer, but only requests that it do so. But Plaintiffs previously have conceded that even the older detainer forms only requested, not required, LEA compliance, and the Court recognized as much in its prior orders. See, e.g., Moreno, 2014 WL 4911938 at *1, *5. Nevertheless, to avoid confusion, the Court hereby modifies the class definition as follows:
All current and future persons against whom Immigration and Customs Enforcement (ICE) has issued an immigration detainer of the Chicago Area of Responsibility where: (1) ICE has requested the law enforcement agency (LEA) to continue to detain the individual after the LEA’s authority has expired; (2) where ICE has not served a Notice to Appear or other charging documents, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal with respect to the individual; and (3) where the LEA cooperates with ICE in complying with detainers. For these reasons, Defendants motion to decertify the class is denied. B. Motion for Summary Judgment Plaintiffs have moved for summary judgment with respect to all of their claims. A motion for summary judgment will be granted when the evidence, viewed in the light most favorable to the non-moving party, shows that there are no material disputes of fact and that the movant is entitled to judgment as a matter of law. Shell v. Smith, 789 F.3d 715, 717 (7th Cir. 2015). As referenced above, in addition to their constitutional claims, Plaintiffs have brought three claims under the Administrative Procedures Act, 5 U.S.C. § 706(2)(C), asserting that ICE’s immigration detainer practices go beyond the agency’s statutory authorization. Of their three
8

statutory claims, two are not amenable to summary judgment on this record.1 But Plaintiffs are entitled to summary judgment on the third, which resolves the case in their favor.
Plaintiffs’ third statutory claim is that ICE’s practice of issuing immigration detainers without first obtaining an arrest warrant is prohibited by the Immigration and Nationality Act. Under 8 U.S.C. § 1226(a), “an alien may be arrested and detained” while awaiting a removal decision, but the arrest must be pursuant to “a warrant issued by the Attorney General.” An exception to this warrant requirement is found in 8 U.S.C. § 1357(a)(2), but that provision allows for warrantless arrest only if ICE has “reason to believe” that the suspected removable alien “is likely to escape before a warrant can be obtained for his arrest.”2 Plaintiffs contend that ICE’s procedures for issuing immigration detainers fail to comply with § 1357(a)(2) because the

1

One of these claims is that ICE’s detainer practices defy the statutory requirement that an

immigration officer establish probable cause before arresting a suspected removable alien. But, as

explained, Defendants contend that immigration officers are now required to establish probable cause

before issuing a detainer, and in support they have offered a declaration from ICE’s Assistant Director of

Enforcement. See Defs.’ Ex. F, Albence Decl. ¶ 7. The other claim is that ICE does not comply with the

statutory requirement that it take a detained alien before an immigration officer without “unnecessary

delay.” But whether the delays experienced by detainees are unnecessary cannot be resolved on this

record. Because genuine issues of material fact exist with respect to these claims, summary judgment is

inappropriate.

2

The provision reads in full:

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant . . . to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.

8 U.S.C. § 1357(a)(2).

9

agency makes no determination whatsoever about the chances that any individual it targets with an immigration detainer will escape before a warrant can be obtained.
For their part, Defendants concede that being detained pursuant to an ICE immigration detainer constitutes a warrantless arrest. See Defs.’ Summ. J. Resp. Br. at 12; see also Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015) (holding that detention pursuant to an immigration detainer is an arrest under the Fourth Amendment that must be supported by probable cause). They also admit that ICE’s statutory authority to make warrantless arrests, including by issuing immigration detainers, is bestowed and limited by 8 U.S.C. § 1357(a)(2),3 which permits ICE to dispense with a warrant only when one cannot be obtained before the subject will likely escape. See Defs.’ Summ. J. Resp. Br. at 12, 19. Moreover, Defendants acknowledge that, “[a]s part of the process of issuing immigration detainers, ICE’s policies and practices do not require any individualized determination that a class member is ‘likely to escape before a warrant can be obtained for his arrest.’” See Pls.’ SOF ¶ 47; Defs.’ Resp. Pls.’ SOF ¶ 47 (“Defendants do not dispute this fact.”). Defendants further admit that, in fact, “ICE agents do not make any determination at all that the class member is ‘likely to escape before a warrant can

3

The Court notes that another section of the statute, 8 U.S.C. § 1357(d), actually uses the word

“detainer” and places certain limitations on the issuance of detainers with respect to aliens accused of

drug crimes. This provision, however, does not provide ICE with any authority to request that a local law

enforcement agency detain an alien beyond when the local agency would otherwise release the person. As

a group of law professors explain persuasively in an amicus brief, “detainer” in the statute simply means a

request to a local law enforcement agency for information about an inmate’s release date. See Brief of

Law Professors as Amici Curiae. The professors’ understanding is supported by an opinion of the

Supreme Court. See Arizona v. United States, 132 S. Ct. 2492, 2507 (2012) (“State officials can also

assist the Federal Government by responding to requests for information about when an alien will be

released from their custody. See § 1357(d).”); see also Galarza v. Szalczyk, 745 F.3d 634, 641 (3d Cir.

2014) (“[I]n reviewing this statute, the Supreme Court has noted that § 1357(d) is a request for notice of a

prisoner’s release, not a command (or even a request) to LEAs to detain suspects on behalf of the federal

government.”). Additionally, materials from the Immigration and Naturalization Service, ICE’s

predecessor, also acknowledge this older understanding of “detainer.” Pls.’ Ex. Q, INS Manual at

DHS000097–DHS000098. In any event, Defendants agree with Plaintiffs that an immigration detainer

that seeks to extend the subject’s detention must comply with the requirements of 8 U.S.C. § 1357(a)(2).

10

be obtained for his arrest.’” See Pls.’ SOF ¶ 48 (emphasis added); Defs.’ Resp. Pls.’ SOF ¶ 48

(“Defendants do not dispute this fact.”).

Despite these concessions, Defendants contend that summary judgment should not be

granted to Plaintiffs. They argue that ICE need not make any determination that a particular alien

is “likely to escape” before a warrant can be obtained because, as they see it, any potentially removable alien4 who is in the custody of a local law enforcement agency is, by definition,

“likely to escape before a warrant can be obtained,” once he or she is released. See Defs.’ Summ.

J. Resp. Br. at 19–20. Put another way, Defendants argue that ICE has satisfied § 1357(a)(2) by

determining, on a categorical basis, that all potentially removable aliens who are in the custody

of a local law enforcement agency are, without exception, likely to escape before ICE can obtain

a warrant. This argument suffers from several flaws.

First, it ignores the fact that, in many circumstances, ICE would have plenty of time to

obtain a warrant while the subject is still in the custody of the local law enforcement agency,

before he or she is released. Looking at the class representatives in this case, ICE issued the

detainer for Lopez on February 1, 2011, ten months before her scheduled released date in

November 2011. See Pls.’ Ex. BB, Lopez detainer at DHS000247. ICE issued the detainer for

Moreno on March 22, 2011, and he was not released from custody until August 2011 or later.

See Defs.’ Summ. J. Resp. Br. at 4. Given Defendants’ insistence that ICE makes (and always

has made) a probable cause determination as to a subject’s removability before a detainer is

issued, it is difficult to see why (and Defendants do not provide any basis for the Court to find

that) it would take materially longer for ICE to obtain a warrant than to issue a detainer. Perhaps

a situation could exist in which ICE would have reason to believe it has time to issue a detainer

4

Of course, at the time that the detainer is issued, no formal determination has been made as to the

target’s removability. Defendants assert that ICE makes a probable cause determination of removability

prior to issuing a detainer, and this factual assertion must be taken as true for the purposes of this motion.

11

but not to get a warrant before an alien is released from the custody of an LEA. But Defendants admit that immigration officers “do not make any determination at all” with respect to this issue.
Second, Defendants’ argument appears to be premised on the notion that all potentially removable aliens are, by their very status, “likely to escape before a warrant can be obtained,” or, at a minimum, all potentially removable aliens, who have been placed in custody by an LEA (whether they have been convicted of a crime or not), are “likely to escape before a warrant can be obtained” upon their release. To evaluate this contention, the term “likely to escape” needs to be defined. And based upon the plain meaning of the words, the statutory context in which the phrase appears, and the cases that have applied it, it is clear that “likely to escape” means “likely to evade detention by immigration officers.” See United States v. Cantu, 519 F.2d 494, 497 (7th Cir. 1975) (“[T]he likelihood of escape was a serious threat. . . . [The suspected aliens] travelled a heavily-trafficked interstate highway system at high speeds and for a great distance. From one moment until the next their location was uncertain and their destination not entirely predictable.”); Westover v. Reno, 202 F.3d 475, 479–80 (1st Cir. 2000) (no evidence that woman in her own home was “likely to escape”); Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218–19 (9th Cir. 1995) (no reason to believe that aliens working in factory were likely to escape before warrant could be obtained); United States v. Harrison, No. 97-4178, 1999 WL 26921, at *3 (4th Cir. Jan. 25, 1999) (unpublished) (local resident was not likely to escape before agents could obtain a warrant); Araujo v. United States, 301 F. Supp.2d 1095, 1102 (N.D. Cal. 2004) (government did not satisfy § 1357(a)(2) because there was no evidence that plaintiff had intended to flee).
Turning to Defendants’ argument with this definition in mind, it goes without saying that a potentially removable alien who is in the custody of an LEA is not likely to evade detention by
12

ICE during the period of custody. Nor can it be the case that, simply by being potentially removable, an alien must be deemed to be likely to evade detention by ICE. Such a reading would render the limitations on warrantless arrest created by 8 U.S.C. §§ 1226(a) and 1357(a)(2) meaningless. See Mountain High Knitting, Inc., 51 F.3d at 218 (“Section 1357(a)(2) requires that the arresting officer reasonably believe that the alien is in the country illegally and that she ‘is likely to escape before a warrant can be obtained for [her] arrest.’”).
In fact, the phase “reason to believe” in § 1357(a)(2) requires the equivalent of probable cause, see Cantu, 519 F.2d at 496, which in turn requires a particularized inquiry. See Maryland v. Pringle, 540 U.S. 366, 373 (2003) (“‘Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.’” (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). Indeed, courts typically frown upon categorical determinations, such as the one Defendants espouse here, instead requiring a more individualized determination prior to arrest or detention. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”); Huff v. Reichert, 744 F.3d 999, 1007 (7th Cir. 2014) (same); United States v. Marrocco, 578 F.3d 627, 633 (7th Cir. 2009) (“The suspicion necessary to justify [a search] cannot be based solely on an officer’s conclusion that a suspect fits a drug-courier profile.”); United States v. Walden, 146 F.3d 487, 490 (7th Cir. 1998) (“Reasonable suspicion of criminal activity cannot be based solely on a person’s prior criminal record.”).5 This is reflected

5

See also United States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008) (“[S]tanding alone, a high

incidence of child molestation by persons convicted of child pornography crimes may not demonstrate

that a child molester is likely to possess child pornography.”); Barham v. Ramsey, 434 F.3d 565, 573–74

(D.C. Cir. 2006) (mass arrest of park occupants was not supported by probable cause just because certain

individuals had been observed committing offenses); United States v. Sigmond-Ballesteros, 285 F.3d

1117, 1121 (9th Cir. 2002) (“[R]easonable suspicion may not be based on broad profiles which cast

13

in the cases that have addressed the “likely to escape” language in § 1357(a)(2). See, e.g., Cantu, 519 F.2d at 497 (noting that defendants were travelling a long distance on an undetermined route); Mountain High Knitting, 51 F.3d at 217–18 (aliens who were detained without a warrant in a factory had not been likely to escape before a warrant could be obtained); Araujo, 301 F. Supp. 2d at 1101 (alien who was living with his wife and had filed an application to adjust status was not likely to escape).
So, then, Defendants are left with the theory that a potentially removable alien is likely to evade detention by immigration officers simply because he or she was in the custody of an LEA prior to release. But if that is Defendants’ argument, the record contains no support for such a proposition, and Defendants have offered none. And, as noted, the statutory language and the cases require a more particularized inquiry.
Perhaps recognizing the weaknesses in their position, Defendants invoke in passing Chevron v. National Resource Defense Council, 467 U.S. 837 (1984). Under Chevron a court is to defer to an agency’s reasonable interpretation of any vague term in a statute the agency is tasked with enforcing. Defendants assert that “the agency’s interpretation of the statutes relating to the administration of immigration laws and the powers to detain illegal aliens is entitled to deference under Chevron.” Defs.’ Summ. J. Resp. Br. at 20.
A Chevron analysis proceeds in two steps. Brumfield v. City of Chi., 735 F.3d 619, 626 (7th Cir. 2013). First, the Court asks whether the statute in question is silent or ambiguous on the question at issue. Id. If it is not, the analysis ends there, and the statute’s unambiguous meaning is applied. If, however, the statute is silent or ambiguous, the Court must then determine whether “the agency has promulgated a reasonable interpretation of the statute.” Id.
suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.”).
14

Curiously, Defendants do not explain how the phrase “likely to escape” may be ambiguous, nor do they point to any agency interpretation of that phrase. In any event, as discussed, the Court concludes that “likely to escape” in this context unambiguously means “likely to evade immigration officers.”
Boiled down, Defendants’ Chevron argument is merely a reiteration of its request that the Court defer to ICE’s judgment that every suspected removable alien becomes likely to evade immigration authorities as soon they are released from state or local custody. In support, Defendants cite a congressional finding that “[o]ver 20 percent of nondetained criminal aliens” in removal proceedings fail to appear. Defs.’ Summ. J. Resp. Br. at 20 n.9. Rather than supporting Defendants’ position, however, the citation shows that nearly 80 percent of “nondetained criminal aliens” do not evade ICE, highlighting the need for individual determinations of flight risk under § 1357(a)(2). To the extent that Defendants would have this Court conclude that a 20 percent probability of an event is sufficient to deem it “likely” to occur (or to defer to ICE’s consideration of this issue), they have not provided any support for such a strained construction.
That said, even assuming, for the sake of argument, that ICE is correct in believing that every potentially removable alien in the custody of an LEA is “likely to escape” as soon as they are released, Defendants nevertheless admit that ICE makes no determination whether it would be able to obtain a warrant before the subject is detained under ICE’s detention program. See Pls.’ SOF ¶ 48; Defs.’ Resp. Pls.’ SOF ¶ 48. This itself violates § 1357(a)(2).
The bottom line is that, because immigration officers make no determination whatsoever that the subject of a detainer is likely to escape upon release before a warrant can be obtained, ICE’s issuance of detainers that seek to detain individuals without a warrant goes beyond its
15

statutory authority to make warrantless arrests under 8 U.S.C. § 1357(a)(2). In the Court’s view, ICE would be wise to heed the advice on issuing detainers found in the 1993 Immigration and Naturalization manual, which is included in the record. The manual states that “[s]ince it is difficult to establish that these aliens [those detained by another agency] are likely to abscond before a warrant can be obtained to support an arrest without a warrant under section 287(a)(2) of the Act [8 U.S.C. § 1357(a)(2)], a warrant of arrest should be issued and served upon the alien.” Pls.’ Ex. Q, INS Manual at DHS000098. The other option is for immigration officers to make an individualized assessment of the likelihood that a suspected removable alien, who is in the custody of an LEA, will seek to evade immigration officers upon release before a warrant can be obtained.
Plaintiffs are thus entitled to summary judgment on this statutory claim, which resolves the case in their favor and nullifies the immigration detainers that have been issued against them. Because the principle of judicial restraint counsels against reaching constitutional questions unnecessarily, the Court will not address Plaintiffs’ constitutional claims. See Bhd. of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region v. Union Pac. R. Co., 522 F.3d 746, 750 (7th Cir. 2008), aff’d, 558 U.S. 67 (2009) (“[I]t is a fundamental rule of judicial restraint that we ought not pass on questions of constitutionality unless such adjudication is unavoidable.”); United States v. Harden, 758 F.3d 886, 891 (7th Cir. 2014) (declining to reach Article III question because statutory question was dispositive and citing Nguyen v. United States, 539 U.S. 69, 76 n.9 (2003)).
Conclusion For all of the reasons above, Defendants’ motion to decertify Plaintiffs’ class [199] is denied. Plaintiffs’ motion for summary judgment [192] is granted as to their claim that ICE’s
16

issuance of immigration detainers exceeds the authority granted by 8 U.S.C. §§ 1226(a) and 1357(a)(2) in violation of 5 U.S.C. § 706(2)(C). Because the immigration detainers issued under ICE’s detention program seek to detain subjects without a warrant—even in the absence of a determination by ICE that the subjects are likely to escape before a warrant can be obtained—the Court will enter judgment for Plaintiffs declaring the immigration detainers issued against Plaintiffs void. However, the Court will stay the effect of this judgment until 5:00 pm. on October 7, 2016, to allow Defendants an opportunity to determine whether they will file a motion to stay the effect of the judgment pending appeal. If Defendants wish to file a motion to stay pending appeal, Defendants must file the motion by October 6, 2016, and notice the motion for presentation on October 7, 2016, at 2:00 p.m. A status hearing is set for October 7, 2016, at 2:00 p.m.

SO ORDERED

ENTER: 9/30/16

______________________________________ JOHN Z. LEE United States District Judge

17

 
 Case: 1:11-cv-05452 Document #: 239 Filed: 11/28/16 Page 1 of 2 PageID #:3705

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and

)

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security (DHS);

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement (ICE); )

DAVID C. PALMATIER, Unit Chief,

)

Law Enforcement Support Center (LESC); )

RICARDO WONG, Chicago Field Office

)

Director, in their official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee

JUDGMENT

This cause coming to be heard after the Court's Memorandum Opinion and Order [230]

denying the Defendants' motion to decertify the class and granting the Plaintiffs ' motion for

summary judgment, the Court enters the following Judgment resolving all claims:

THE COURT HAVING FOUND THAT:

A. The Plaintiff class consists of the following individuals:
All current and future persons against whom Immigration and Customs Enforcement (ICE) has issued an immigration detainer of the Chicago Area of Responsibility where: (1) ICE has requested the law enforcement agency (LEA) to continue to detain the individual after the LEA's authority has expired; (2) where ICE has not served a Notice to Appear or other charging documents, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal with respect to the individual; and (3) where the LEA cooperates with ICE in complying with detainers.
B. ICE 's practice of issuing "immigration detainers" that seek to detain an

individual without a warrant- without making a particularized determination that the

Case: 1:11-cv-05452 Document #: 239 Filed: 11/28/16 Page 2 of 2 PageID #:3706

individual is likely to escape before a warrant can be obtained-goes beyond ICE's

statutory authority to make warrantless arrests under 8 U.S.C. § 1357(a)(2).

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. The immigration detainers already issued against Plaintiffs and the

Plaintiff class are declared null and void;

2. Defendants shall promptly provide notice to every law enforcement

agency and correctional institution that may house a member of the Plaintiff class,

informing the agency or institution of this judgment;

3. Within 30 days of entry of this Judgment, Defendants shall report to the

Court the status of their compliance with paragraphs 2; and

4. Defendants are permanently enjoined from issuing from the Chicago Field

Office (which oversees the area of responsibility consisting of Illinois, Indiana,

Wisconsin, Missouri, Kentucky, and Kansas) immigration detainers that request the

continued detention of individuals in the custody of law enforcement agencies, unless

a. an ICE officer (i) has probable cause to conclude that an individual

is a removable non-citizen and (ii) has obtained a warrant of arrest of the individual, in

accordance with the applicable statute and regulations; or,

b. an ICE officer (i) has probable cause to conclude that an individual

is a removable non-citizen and (ii) has reason to believe that the particular individual is

likely to escape before a warrant can be obtained.

IT IS SO ORDERED. Dated: November 28,2016

uZr)L..J_,._-

United States District Court Judge

 
 Case: 1:11-cv-05452 Document #: 241 Filed: 12/27/16 Page 1 of 6 PageID #:3708

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and )

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security;

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement;

)

DAVID C. PALMATIER, Unit Chief,

)

Law Enforcement Support Center;

)

RICARDO WONG, Chicago Field Office

)

Director, in their official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee

PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT

Plaintiffs Jose Jimenez Moreno and Maria Jose Lopez, on behalf of themselves and the

class they represent, and pursuant to Rule 59(e) of the Federal Rules of Civil Procedure,

respectfully move this Court to alter or amend its Judgment entered on November 28, 2016.

ECF No. 239. In support thereof, and as more fully set forth in the accompanying memorandum

of law, Plaintiffs state the following:

1. Plaintiffs’ Amended Complaint sought both declaratory and injunctive relief

under the Administrative Procedure Act, 5 U.S.C. §706(a), as well as under the Fourth and Fifth

Amendments to the Constitution of the United States. ECF No. 78, ¶ 5. In each claim, Plaintiffs

specifically requested injunctive relief “to prevent continued and future injury” resulting from

Defendants’ unlawful detainer practice. Id. ¶¶ 40, 45, 51.

Case: 1:11-cv-05452 Document #: 241 Filed: 12/27/16 Page 2 of 6 PageID #:3709
2. After certifying a class, this Court granted Plaintiffs’ motion for summary judgment. Moreno v. Napolitano, --- F. Supp. 3d ---, No. 11-cv-05452, 2016 WL 5720465, at *1, *4 (N.D. Ill. Sept. 30, 2016). The Court held that the practice of issuing immigration detainers that seek to detain an individual without a warrant—without making any particularized determination that the individual is likely to escape before a warrant can be obtained—goes beyond Defendants’ statutory authority to make warrantless arrests under 8 U.S.C. § 1357(a)(2). Id. at *8. Under the doctrine of constitutional avoidance—and because it intended the relief it would grant on that basis to resolve all claims—the Court elected not to address Plaintiffs’ claims under the Fourth and Fifth Amendments. Id. at *9.
3. At the Court’s request, Plaintiffs submitted a Proposed Judgment setting forth the terms of their requested relief. See Ex. A to accompanying Mem. Specifically, to prevent future harm to the named Plaintiffs and members of the certified class, Plaintiffs proposed that Defendants be “permanently enjoined from issuing immigration detainers that request the continued detention of individuals in the custody of law enforcement agencies,” unless either (a) an ICE officer finds probable cause and obtains and serves a warrant upon the individual in accordance with the applicable statute and regulations, or (b) an ICE officer finds probable cause and also makes (and sufficiently demonstrates) a particularized determination that the individual is likely to escape between when the detainer would be issued and when a warrant can be obtained. Id. ¶ 7.
4. On November 28, 2016, this Court entered its Judgment, narrowing the scope of relief in two important respects. First, the Judgment enjoins Defendants from issuing the unlawful detainers only from ICE’s “Chicago Field Office.” ECF No. 239, ¶ 4. Second, the Judgment omits the words “and served” from the provision relating to warrants, so that
-2-

Case: 1:11-cv-05452 Document #: 241 Filed: 12/27/16 Page 3 of 6 PageID #:3710

Defendants may continue to issue detainers in the future if those detainers are accompanied by

warrants “obtained . . . in accordance with the applicable statute and regulations,” whether or not

the warrant or detainer is actually “served.” Id. ¶ 4(a).

5.

Unfortunately, the narrowed relief is insufficient to protect the named Plaintiffs

and members of the certified class from suffering the identical harm in the future. This is so for

two reasons.

6.

First, by limiting the injunction to the Chicago Field Office, the Judgment would

allow Defendants to continue their unlawful practices merely by shifting their detainer efforts for

the Chicago Area of Responsibility to another field office elsewhere in the country. This has

already begun to occur; a declaration filed after the summary judgment ruling in this case

confirms that during the pendency of this case, Defendants shifted responsibility for after-hours

detainers (nights, weekends, holidays) from the Chicago Field Office to an office in California.

See ECF No. 234-1, Att. A. Further, while the parties were awaiting the Judgment in this case,

Plaintiffs’ counsel discovered the following evidence further confirming that detainers are being

routinely issued from California against detainees within the Chicago Area of Responsibility:

a. a copy of a detainer issued from California against a detainee at the

Winnebago County Jail, Illinois—the same facility where named plaintiff Moreno was in

custody when subjected to an immigration detainer, see Ex. B to accompanying Mem.; and

b. the deposition testimony of the Director of the California office,

confirming that his office is now responsible for detainers issued against individuals held by law

enforcement agencies within the Chicago Area of Responsibility after hours and on weekends,

see Ex. C to accompanying Mem.

-3-

Case: 1:11-cv-05452 Document #: 241 Filed: 12/27/16 Page 4 of 6 PageID #:3711
7. Second, by omitting the words “and served” from the proposed relief regarding detainers accompanied by warrants, the Judgment would allow Defendants to continue their practice of issuing detainers to the law enforcement agencies electronically, without any service of any document on the individual detainee at all—which effectively leaves Plaintiffs’ Due Process claim based on lack of service entirely unresolved. In its summary judgment ruling and Judgment, this Court expressed an intention to grant relief that resolves all claims in this case. Although Plaintiffs do not concede that the existing regulations regarding service are sufficient to protect their rights to Due Process, Defendants should at least be required to comply with those regulations in all respects—including the regulations that require personal service of the warrant by an ICE officer. 8 C.F.R. §§ 236.1(b)(1), 287.5(e)(3), 287.8(c).
8. Under Rule 59(e), and for the reasons set forth in the accompanying Memorandum, this Court should amend its Judgment to address both of these issues. Plaintiffs respectfully request that the Court amend Paragraph 4 of its Judgment to enjoin Defendants from issuing detainers from “or into” the Chicago Area of Responsibility, unless (1) the detainer is based on probable cause and a warrant is obtained “and served” in accordance with the applicable statute and regulations, or (2) the detainer is based on probable cause and there is reason to believe a particular individual is likely to escape before a warrant can be obtained.
Plaintiffs met and conferred with Defendants about the requested relief. Defendants were unable to express a position on this relief at this time, as the proposal is currently being evaluated by multiple agencies.
-4-

Case: 1:11-cv-05452 Document #: 241 Filed: 12/27/16 Page 5 of 6 PageID #:3712

Dated: December 27, 2016

Respectfully submitted,
By: /s/ Linda T. Coberly
Linda T. Coberly Lee B. Muench Sean H. Suber WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 Telephone: (312) 558-5600 Fax: (312) 558-5700 lcoberly@winston.com lmuench@winston.com ssuber@winston.com
Mark M. Fleming Charles Roth Claudia Beatrice Valenzuela Rivas NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Telephone: (312) 660-1370 Fax: (312) 660-1505 mfleming@heartlandalliance.org croth@heartlandalliance.org cvalenzuela@ heartlandalliance.org
Attorneys for Plaintiffs

-5-

Case: 1:11-cv-05452 Document #: 241 Filed: 12/27/16 Page 6 of 6 PageID #:3713

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE JIMENEZ MORENO and MARIA

)

JOSE LOPEZ, on behalf of themselves and )

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

JANET NAPOLITANO, Secretary of the

)

Department of Homeland Security;

)

JOHN MORTON, Director of U.S.

)

Immigration and Customs Enforcement;

)

DAVID C. PALMATIER, Unit Chief,

)

Law Enforcement Support Center;

)

RICARDO WONG, Chicago Field Office

)

Director, in their official capacities,

)

)

Defendants.

)

Case No. 11 C 5452 Judge John Z. Lee

CERTIFICATE OF SERVICE

I, Linda T. Coberly, hereby certify that on December 27, 2016, I caused a true and correct

copy of the Plaintiffs’ Motion to Alter or Amend Judgment to be served via electronic mail

upon the following:

Colin A. Kisor William C. Silvis Katherine E.M. Goettel U.S. DPT. OF JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT SECTION P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Colin.Kizor@usdoj.gov William.Silvis@usdoj.gov Kate.Goettel@usdoj.gov

Craig Arthur Oswald UNITED STATES ATTORNEY’S OFFICE NORTHERN DISTRICT OF ILLINOIS 219 South Dearborn Street, Suite 500 Chicago, Illinois 60604 Craig.Oswald@usdoj.gov
By: /s/ Linda T. Coberly Attorney for Plaintiffs

 
 Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 1 of 25
COLE,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:11−cv−05452

Jimenez Moreno et al v. Napolitano et al Assigned to: Honorable John Z. Lee Demand: $0 Cause: 28:1331 Federal Question
Plaintiff
Jose Jimenez Moreno

Date Filed: 08/11/2011 Date Terminated: 11/28/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Claudia Valenzuela National Immigrant Justice Center 208 South LaSalle Suite 1300 Chicago, IL 60604 312−660−1308 Email: cvalenzuela@heartlandalliance.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond C. Perkins Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 Email: rperkins@winston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Paul Carr Winston & Strawn Llp 35 W. Wacker Dr. Chicago, IL 60601 (312) 558−3735 Email: bcarr@winston.com TERMINATED: 06/25/2013
Charles Roth National Immigrant Justice Center 208 South LaSalle Suite 1300 Chicago, IL 60604 312−660−1613 Email: croth@heartlandalliance.org ATTORNEY TO BE NOTICED
Giovanni Angles Winston & Strawn Llp 35 West Wacker Drive Chicago, IL 60601 (312) 558−9501 Email: gangles@winston.com TERMINATED: 05/27/2014
Joanna Rubin Travalini Winston & Strawn Llp 35 W. Wacker Drive Chicago, IL 60601 (312) 558−3256 Email: jtravalini@winston.com ATTORNEY TO BE NOTICED

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 2 of 25

Plaintiff Maria Jose Lopez

Joel M Wallace Winston & Strawn Llp 35 W Wacker Dr Chicago, IL 60601 (312) 558−7432 Email: JWallace@schiffhardin.com TERMINATED: 05/27/2014
Keith R.C. Pozulp Golan & Christie LLP 70 W. Madison Suite 1500 Chicago, IL 60602 (312) 696−1370 Email: krcpozulp@golanchristie.com TERMINATED: 01/18/2013
Lee Benjamin Muench Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601 (312) 558−6451 Email: Lmuench@winston.com ATTORNEY TO BE NOTICED
Linda T. Coberly Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 Email: lcoberly@winston.com ATTORNEY TO BE NOTICED
Mark M. Fleming National Immigrant Justice Center 208 S. Lasalle Street Suite 1300 Chicago, IL 60604 (312) 660−1628 Email: mfleming@heartlandalliance.org ATTORNEY TO BE NOTICED
Nicole A. Kozdron California Court of Appeal Second Appellate District 300 South Spring Street 2nd Floor, North Tower Los Angeles,, CA 90013 (212) 830−7446 Email: Nicole.kozdron@jud.ca.gov TERMINATED: 04/23/2012
Sean H. Suber Winston & Strawn Llp 35 W. Wacker Chicago, IL 60601 (312) 558−3765 Email: ssuber@winston.com ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address)

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 3 of 25
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond C. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Paul Carr (See above for address) TERMINATED: 06/25/2013
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Giovanni Angles (See above for address) TERMINATED: 05/27/2014
Joanna Rubin Travalini (See above for address) ATTORNEY TO BE NOTICED
Joel M Wallace (See above for address) TERMINATED: 05/27/2014
Keith R.C. Pozulp (See above for address) TERMINATED: 01/18/2013
Lee Benjamin Muench (See above for address) ATTORNEY TO BE NOTICED
Linda T. Coberly (See above for address) ATTORNEY TO BE NOTICED
Mark M. Fleming (See above for address) ATTORNEY TO BE NOTICED
Nicole A. Kozdron (See above for address) TERMINATED: 04/23/2012
Sean H. Suber (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Janet Napolitano

represented by Colin Abbott Kisor United States Navy Office of the Judge Advocate General 716 Sicard Street 1000 Washington, DC 20374 (202)685−7426 Email: colin.kisor@usdoj.gov LEAD ATTORNEY

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 4 of 25

ATTORNEY TO BE NOTICED

Craig Arthur Oswald United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353−5300 Email: craig.oswald@usdoj.gov ATTORNEY TO BE NOTICED

Jacob A Bashyrov U.s. Department Of Justice, Civil, Office Of Imm. Lit. Po Box 878 Ben Franklin Station Washington, DC 20044 (202) 616−3477 Email: jacob.bashyrov@usdoj.gov ATTORNEY TO BE NOTICED

Katherine Elizabeth Goettel United States Department of Justice Civil Division P.O. Box 353 Ben Franklin Station Washington, DC 20044 (202) 532 − 4115 Email: kate.goettel@usdoj.gov TERMINATED: 02/17/2017

Kathleen Ann Connolly Department Of Justice, Office Of Immigration Litigation, Dcs Po Box 868 Ben Franklin Station Washington, DC 20044 (202) 305−8627 Email: kathleen.a.connolly@usdoj.gov ATTORNEY TO BE NOTICED

Lana Lunskaya Vahab doj − civil P.O. Box 868, Ben Franklin Station washington, DC 20044 (202) 532−4067 Email: lana.vahab@usdoj.gov ATTORNEY TO BE NOTICED

William Charles Silvis United States Department of Justice 450 5th Street, NW Suite 6030 Washington, DC 20001 202 307 4693 Email: william.silvis@usdoj.gov ATTORNEY TO BE NOTICED

Defendant John Morton

represented by Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig Arthur Oswald

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 5 of 25

(See above for address) ATTORNEY TO BE NOTICED

Jacob A Bashyrov (See above for address) ATTORNEY TO BE NOTICED

Katherine Elizabeth Goettel (See above for address) TERMINATED: 02/17/2017

Kathleen Ann Connolly (See above for address) ATTORNEY TO BE NOTICED

Lana Lunskaya Vahab (See above for address) ATTORNEY TO BE NOTICED

William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED

Defendant David C. Palmatier

represented by Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig Arthur Oswald (See above for address) ATTORNEY TO BE NOTICED

Jacob A Bashyrov (See above for address) ATTORNEY TO BE NOTICED

Katherine Elizabeth Goettel (See above for address) TERMINATED: 02/17/2017

Kathleen Ann Connolly (See above for address) ATTORNEY TO BE NOTICED

Lana Lunskaya Vahab (See above for address) ATTORNEY TO BE NOTICED

William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED

Defendant Ricardo Wong

represented by Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig Arthur Oswald (See above for address) ATTORNEY TO BE NOTICED

Jacob A Bashyrov

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 6 of 25

(See above for address) ATTORNEY TO BE NOTICED

Katherine Elizabeth Goettel (See above for address) TERMINATED: 02/17/2017

Kathleen Ann Connolly (See above for address) ATTORNEY TO BE NOTICED

Lana Lunskaya Vahab (See above for address) ATTORNEY TO BE NOTICED

William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED

Amicus
Law Professors as Proposed Amici Curiae Law Professors as Proposed Amici Curiae

represented by Christopher Nelson Lasch University Of Denver Sturm College Of Law 2255 East Evans Avenue Suite 335 Denver, CO 80208 (303) 871−6368 Email: chris.lasch@gmail.com ATTORNEY TO BE NOTICED

V. Movant Julien Morena Garcon

represented by Julien Morena Garcon 2100 N. Australian Ave #414N West Palm Beach, FL 33407 PRO SE

V.
Intervenor
Sergey Mayorov TERMINATED: 02/14/2013

represented by Raymond C. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Paul Carr (See above for address) TERMINATED: 06/25/2013
Joel M Wallace (See above for address) TERMINATED: 05/27/2014
Linda T. Coberly (See above for address) ATTORNEY TO BE NOTICED
Nicole A. Kozdron (See above for address) TERMINATED: 04/23/2012

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 7 of 25

Intervenor
Nicholas Taylor−Jones TERMINATED: 02/14/2013

represented by Raymond C. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Paul Carr (See above for address) TERMINATED: 06/25/2013
Joel M Wallace (See above for address) TERMINATED: 05/27/2014
Linda T. Coberly (See above for address) ATTORNEY TO BE NOTICED
Nicole A. Kozdron (See above for address) TERMINATED: 04/23/2012

Date Filed 08/11/2011
08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/12/2011 08/19/2011
08/26/2011 09/02/2011 09/27/2011 09/30/2011 10/04/2011 10/14/2011

# Docket Text
1 COMPLAINT filed by Jose Jimenez Moreno, Maria Jose Lopez; Filing fee $ 350, receipt number 0752−6274187. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Valenzuela Rivas, Claudia) (Entered: 08/11/2011)
2 CIVIL Cover Sheet (Valenzuela Rivas, Claudia) (Entered: 08/11/2011)
3 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Claudia Beatrice Valenzuela Rivas (Valenzuela Rivas, Claudia) (Entered: 08/11/2011)
CASE ASSIGNED to the Honorable Robert M. Dow, Jr. Designated as Magistrate Judge the Honorable Jeffrey Cole. (jn, ) (Entered: 08/11/2011)
4 Corrected complaint by Jose Jimenez Moreno, Maria Jose Lopez (Valenzuela Rivas, Claudia) (Entered: 08/11/2011)
5 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to certify class (Valenzuela Rivas, Claudia) (Entered: 08/11/2011)
SUMMONS Issued as to U.S. Attorney, and U.S. Attorney General (daj, ) (Entered: 08/12/2011)
6 DESIGNATION of Craig Arthur Oswald as U.S. Attorney for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Oswald, Craig) (Entered: 08/19/2011)
7 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Mark M. Fleming (Fleming, Mark) (Entered: 08/26/2011)
SUMMONS Issued as to Janet Napolitano, David C. Palmatier, Ricardo Wong, U.S. Attorney, and U.S. Attorney General (rc, ) (Entered: 09/02/2011)
8 ATTORNEY Appearance for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong by Colin Abbott Kisor (Kisor, Colin) (Entered: 09/27/2011)
SUMMONS Issued as to Defendant John Morton (mh, ) (Entered: 09/30/2011)
9 SUMMONS Returned Executed by Jose Jimenez Moreno, Maria Jose Lopez as to All Defendants (Fleming, Mark) (Entered: 10/04/2011)
10 MOTION by Defendants Ricardo Wong, John Morton, Janet Napolitano, David C. Palmatier to dismiss for lack of jurisdiction (Attachments: # 1 Appendix Cancelled detainer, # 2 Appendix cancelled detainer, # 3 Appendix criminal conviction)(Kisor,

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 8 of 25

10/14/2011 10/14/2011 10/24/2011 10/27/2011
11/17/2011 11/17/2011 11/17/2011 11/17/2011 11/21/2011
11/21/2011 11/22/2011 11/22/2011 11/22/2011 11/22/2011 11/23/2011 11/23/2011 11/23/2011

Colin) (Entered: 10/14/2011)
11 NOTICE of Motion by Colin Abbott Kisor for presentment of motion to dismiss, 10 before Honorable Robert M. Dow Jr. on 10/27/2011 at 09:15 AM. (Kisor, Colin) (Entered: 10/14/2011)
12 MOTION by Defendants Ricardo Wong, John Morton, Janet Napolitano, David C. Palmatier to dismiss for lack of jurisdiction (Kisor, Colin) (Entered: 10/14/2011)
13 NOTICE of Motion by Mark M. Fleming for presentment of motion to certify class 5 before Honorable Robert M. Dow Jr. on 10/27/2011 at 09:15 AM. (Fleming, Mark) (Entered: 10/24/2011)
14 MINUTE entry before Honorable Robert M. Dow, Jr: Motion to certify class 5 is is held in abeyance. Defendants' Motion to dismiss 10 is taken under advisement; Defendants' Motion to dismiss for lack of jurisdiction 12 is taken under advisement. Plaintiffs are given to and including 12/2/2011 to respond to Motions to Dismiss 10 and 12 ; Defendants are given until 1/9/2012 to reply; ruling on motions to dismiss will be by mail. Mailed notice (tbk, ) (Entered: 10/27/2011)
15 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for leave to file additional appearances (Valenzuela Rivas, Claudia) (Entered: 11/17/2011)
16 NOTICE of Motion by Claudia Beatrice Valenzuela Rivas for presentment of motion for leave to file 15 before Honorable Robert M. Dow Jr. on 11/22/2011 at 09:15 AM. (Valenzuela Rivas, Claudia) (Entered: 11/17/2011)
17 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for extension of time of the briefing schedule on defendants' motion to dismiss (Valenzuela Rivas, Claudia) (Entered: 11/17/2011)
18 NOTICE of Motion by Claudia Beatrice Valenzuela Rivas for presentment of extension of time 17 before Honorable Robert M. Dow Jr. on 11/22/2011 at 09:15 AM. (Valenzuela Rivas, Claudia) (Entered: 11/17/2011)
19 MINUTE entry before Honorable Robert M. Dow, Jr: MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for extension of time 17 of the briefing schedule on defendants' motion to dismiss granted as follows: Plaintiffs' response due by 12/16/2011 and Defendants' reply due by 1/25/2012. Plaintiffs' Motion for leave to file additional appearances will also be granted in an order to follow. Notice of Motion date of 11/22/2011 is stricken and no appearances are necessary on that date. Mailed notice (tbk, ) (Entered: 11/21/2011)
20 MINUTE entry before Honorable Robert M. Dow, Jr: Plaintiffs' Motion for leave to file 15 additional appearances of counsel from Winston & Strawn LLP is granted. Mailed notices (gcy, ) (Entered: 11/22/2011)
21 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Raymond C. Perkins (Perkins, Raymond) (Entered: 11/22/2011)
22 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Linda T. Coberly (Coberly, Linda) (Entered: 11/22/2011)
23 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Keith R.C. Pozulp (Pozulp, Keith) (Entered: 11/22/2011)
24 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Nicole Angelique Kozdron (Kozdron, Nicole) (Entered: 11/22/2011)
25 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to intervene (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit 1− to Exhibit A, # 4 Exhibit 2− to Exhibit A)(Pozulp, Keith) (Entered: 11/23/2011)
26 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez in support of motion to intervene 25 (Pozulp, Keith) (Entered: 11/23/2011)
27 NOTICE of Motion by Keith R.C. Pozulp for presentment of motion to intervene 25 before Honorable Robert M. Dow Jr. on 11/30/2011 at 09:15 AM. (Pozulp, Keith) (Entered: 11/23/2011)

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 9 of 25

11/30/2011 12/05/2011 12/16/2011 01/17/2012 01/25/2012 01/31/2012 02/01/2012 02/01/2012 02/01/2012 04/18/2012 04/18/2012 04/23/2012
06/01/2012
06/06/2012

28 MINUTE entry before Honorable Robert M. Dow, Jr: MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to intervene 25 is taken under advisement; Defendants' response due by 1/17/2012; Plaintiffs' reply due by 1/31/2012; ruling will be by mail. Mailed notice (tbk, ) (Entered: 11/30/2011)
29 ATTORNEY Appearance for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong by Lana Lunskaya Vahab (Vahab, Lana) (Entered: 12/05/2011)
30 RESPONSE by Jose Jimenez Moreno, Maria Jose Lopezin Opposition to MOTION by Defendants Ricardo Wong, John Morton, Janet Napolitano, David C. Palmatier to dismiss for lack of jurisdiction 12 (Attachments: # 1 Exhibit A−F)(Kozdron, Nicole) (Entered: 12/16/2011)
31 RESPONSE by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wongin Opposition to MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to intervene 25 (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix)(Kisor, Colin) (Entered: 01/17/2012)
32 REPLY by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to response in opposition to motion 30 , MOTION by Defendants Ricardo Wong, John Morton, Janet Napolitano, David C. Palmatier to dismiss for lack of jurisdiction 12 (Kisor, Colin) (Entered: 01/25/2012)
33 REPLY by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to motion to intervene 25 (Attachments: # 1 Exhibit A)(Coberly, Linda) (Entered: 01/31/2012)
34 ATTORNEY Appearance for Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones by Linda T. Coberly (Coberly, Linda) (Entered: 02/01/2012)
35 ATTORNEY Appearance for Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones by Nicole A. Kozdron (Kozdron, Nicole) (Entered: 02/01/2012)
36 ATTORNEY Appearance for Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones by Raymond C. Perkins (Perkins, Raymond) (Entered: 02/01/2012)
37 MOTION by counsel for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez, Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones to withdraw as attorney Nicole A. Kozdron (Coberly, Linda) (Entered: 04/18/2012)
38 NOTICE of Motion by Linda T. Coberly for presentment of motion to withdraw as attorney 37 before Honorable Robert M. Dow Jr. on 4/24/2012 at 09:15 AM. (Coberly, Linda) (Entered: 04/18/2012)
39 MINUTE entry before Honorable Robert M. Dow, Jr: MOTION by counsel for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez, Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones to withdraw 37 the appearance of Nicole A. Kozdron is granted. Notice of Motion date of 4/24/2012 is stricken and no appearances are necessary on that date. Mailed notice (tbk, ) (Entered: 04/23/2012)
40 EXECUTIVE COMMITTEE ORDER: It appearing that, pursuant to the Executive Committee Order entered on May 18, 2012, the civil cases on the attached list have been selected for reassignment to form the initial calendar of the Honorable John Z. Lee, therefore IT IS HEREBY ORDERED That the attached list of 323 cases be reassigned to the Honorable John Z. Lee IT IS FURTHER ORDERED that this order shall become effective on Tuesday, June 5, 2012. Case reassigned to the Honorable John Z. Lee for all further proceedings. Signed by Executive Committee on 6/1/2012. Mailed Notice (td, ) (Entered: 06/05/2012)
41 MINUTE entry before Honorable John Z. Lee: This case having been reassigned to Judge Lee's calendar, the initial reassignment status hearing is set for June 19 at 2:00 p.m. Lead counsel is directed to appear at this status hearing. Parties shall prepare and file an Initial Reassignment Joint Status Report on or before Friday, June 15, 2012, and provide a courtesy copy to the Courtroom Deputy by 4:00 p.m. on that date. The requirements for an Initial Reassignment Joint Status Report can be found at Judge Lee's website. Plaintiff is to advise all other parties of the court's action herein. Mailed notice (ca, ) (Entered: 06/06/2012)

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06/14/2012 06/18/2012 08/17/2012 10/02/2012 10/31/2012 10/31/2012 10/31/2012 11/13/2012 11/15/2012 11/15/2012 11/19/2012 11/19/2012 11/19/2012 11/30/2012 11/30/2012 12/03/2012
12/15/2012 12/15/2012 12/17/2012

42 STATUS Report Initial Reassignment (Joint) by Jose Jimenez Moreno, Maria Jose Lopez, Sergey Mayorov, John Morton, Janet Napolitano, David C. Palmatier, Nicholas Taylor−Jones, Ricardo Wong (Pozulp, Keith) (Entered: 06/14/2012)
43 MINUTE entry before Honorable John Z. Lee: The Initial Reassignment Status Hearing scheduled for 6/19/2012 at 2:00 p.m. is stricken. The parties are to appear for a status hearing on 8/21/2012 at 9:15 a.m. Mailed notice (ca, ) (Entered: 06/18/2012)
44 MINUTE entry before Honorable John Z. Lee: The status hearing set for 8/21/12 at 9:15 a.m. is reset to 10/3/12 at 9:15 a.m.Mailed notice (ca, ) (Entered: 08/17/2012)
45 MINUTE entry before Honorable John Z. Lee: Status hearing set for 10/3/12 at 9:15 a.m. is reset for 11/1/2012 at 9:00 a.m.Mailed notice (ca, ) (Entered: 10/02/2012)
46 MINUTE entry before Honorable John Z. Lee: Status hearing set for 11/1/12 is reset for 12/5/2012 at 9:00 a.m. Mailed notice (ca, ) (Entered: 10/31/2012)
47 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Joel M Wallace (Wallace, Joel) (Entered: 10/31/2012)
48 ATTORNEY Appearance for Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones by Joel M Wallace (Wallace, Joel) (Entered: 10/31/2012)
49 ATTORNEY Appearance for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong by William Charles Silvis (Silvis, William) (Entered: 11/13/2012)
50 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Benjamin Paul Carr (Carr, Benjamin) (Entered: 11/15/2012)
51 ATTORNEY Appearance for Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones by Benjamin Paul Carr (Carr, Benjamin) (Entered: 11/15/2012)
52 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez, Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones to Open Discovery for a Limited Purpose (Class Certification) (Carr, Benjamin) (Entered: 11/19/2012)
53 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez, Sergey Mayorov, Nicholas Taylor−Jones in support of motion for miscellaneous relief 52 (Attachments: # 1 Exhibit A)(Carr, Benjamin) (Entered: 11/19/2012)
54 NOTICE of Motion by Benjamin Paul Carr for presentment of motion for miscellaneous relief 52 before Honorable John Z. Lee on 12/5/2012 at 09:00 AM. (Carr, Benjamin) (Entered: 11/19/2012)
55 MINUTE entry before Honorable John Z. Lee: For the reasons provided herein, the Court denies Defendants' motion to dismiss 10 . [For further detail see separate order.] Mailed notice (ca, ) (Entered: 11/30/2012)
56 MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 11/30/2012Mailed notice(ca, ). (Entered: 11/30/2012)
57 MINUTE entry before Honorable John Z. Lee: Initial status hearing set for 1/8/13 at 9:30 a.m. The parties are referred to Judge Lee's web−page regarding procedures for initial status conferences. Because the Court will address discovery at the initial status conference, Plaintiffs' motion to open discovery for a limited purpose 52 is denied as moot. The status hearing set for 12/5/12 at 9:00 a.m. is stricken. Mailed notice (ca, ) (Entered: 12/03/2012)
58 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for extension of time (Oswald, Craig) (Entered: 12/15/2012)
59 NOTICE of Motion by Craig Arthur Oswald for presentment of extension of time 58 before Honorable John Z. Lee on 12/20/2012 at 09:00 AM. (Oswald, Craig) (Entered: 12/15/2012)
60 MINUTE entry before Honorable John Z. Lee: Defendants John Morton, Janet Napolitano, David C. Palmatier, and Ricardo Wong's motion for extension of time 58 is granted. Defendants John Morton, Janet Napolitano, David C. Palmatier, and Ricardo Wong shall answer or otherwise plead by 12/28/12. No appearance necessary

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12/27/2012 01/02/2013 01/08/2013
01/17/2013 01/17/2013 01/18/2013 02/08/2013 02/14/2013
03/08/2013 03/11/2013

on 12/20/12. Mailed notice (ca, ) (Entered: 12/17/2012)
61 Defendants in theor official capacities ANSWER to Complaint by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong(Kisor, Colin) (Entered: 12/27/2012)
62 STATUS Report (Joint Initial) by Jose Jimenez Moreno, Maria Jose Lopez, John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Carr, Benjamin) (Entered: 01/02/2013)
63 MINUTE entry before Honorable John Z. Lee: Status hearing held on 1/8/2013. Pursuant to the parties' request, the parties are to exchange Rule 26(a)(1) disclosures by 1/29/13, amend the pleadings and/or add additional parties, if needed, no later than 5/1/13, and serve written discovery requests by 2/15/13. Fact discovery will close on 8/1/13. Plaintiffs' memorandum in support of class certification should be filed by 4/19/13; Defendants brief in opposition to class certification should be filed by 5/20/13. The parties are to meet and confer regarding the production of ESI, if any, by 3/1/13 and to submit a joint ESI plan by 3/8/13 if necessary. Furthermore, Plaintiff filed a motion for class certification contemporaneously with the complaint. Presumably, Plaintiff did so in order to address the concerns raised by the Court of Appeals in Damasco v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011). At this time, however, the parties have stated that they will needed class discovery and consideration of the class certification motion is premature. Accordingly, the Court requests that the parties consider entering into a stipulation in this case that would obviate the need for the parties to address the premature motion for class certification at this time, while also addressing the concerns raised in Damasco. An example of such a stipulation can be found at Hayden v. Fresh Express, Inc., Case No. 12 C 1583, Dock. No. 18. If the parties enter into the stipulation, Plaintiff will be granted leave to refile the motion on 4/19/13 along with the brief in support. The parties are instructed to report whether they are amenable to agreeing to such a stipulation by filing either the executed stipulation or a joint status report no later than 2/8/13. Status hearing set for 3/14/13 at 9:00 a.m.Mailed notice (ca, ) (Entered: 01/08/2013)
64 MOTION by counsel for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez, Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones to withdraw as attorney Keith R. Pozulp (Carr, Benjamin) (Entered: 01/17/2013)
65 NOTICE of Motion by Benjamin Paul Carr for presentment of motion to withdraw as attorney 64 before Honorable John Z. Lee on 1/24/2013 at 09:00 AM. (Carr, Benjamin) (Entered: 01/17/2013)
66 MINUTE entry before Honorable John Z. Lee: The Court grants plaintiffs' motion to withdraw as attorney 64 . No appearance on the motion is necessary. Mailed notice (ca, ) (Entered: 01/18/2013)
67 STATUS Report Regarding Class Certification Stipulation (Joint) by Jose Jimenez Moreno, Maria Jose Lopez, John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Attachments: # 1 Exhibit A)(Carr, Benjamin) (Entered: 02/08/2013)
68 MINUTE entry before Honorable John Z. Lee: Plaintiffs' motion to certify class 5 is stricken without prejudice. The parties have stated that they will need class discovery and discovery has commenced. Because class discovery may impact the parties arguments and the definition of the class, consideration of the class certification issue is premature at this time. On 1/8/13, the Court set a briefing schedule for the class certification issue. Plaintiffs are granted leave to file a renewed motion for class certification with their memorandum in support of class certification, which is due 4/19/13. Additionally, for the reasons provided herein,Sergey Mayorov and Nicholas Taylor−Jones's motion to intervene 25 is denied.[ For further details see minute order.] Mailed notice(ca, ) (ca, ). (Entered: 02/14/2013)
69 STATUS Report Regarding Discovery of Electronically Stored Information (Joint) by Jose Jimenez Moreno, Maria Jose Lopez, John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Carr, Benjamin) (Entered: 03/08/2013)
70 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for reconsideration of Order Striking Motion to Certify Class 68 (Uncontested) (Carr, Benjamin) (Entered: 03/11/2013)

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03/11/2013 03/11/2013 03/14/2013
03/18/2013 04/12/2013 04/12/2013 04/16/2013
05/01/2013 05/07/2013 05/07/2013 05/13/2013
05/13/2013 05/28/2013 05/28/2013

71 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez in support of motion for reconsideration 70 (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Carr, Benjamin) (Entered: 03/11/2013)
72 NOTICE of Motion by Benjamin Paul Carr for presentment of motion for reconsideration 70 before Honorable John Z. Lee on 3/14/2013 at 09:00 AM. (Carr, Benjamin) (Entered: 03/11/2013)
73 MINUTE entry before Honorable John Z. Lee: Status and motion hearing held on 3/14/13. For the reasons stated on the record, plaintiffs' uncontested motion for reconsideration of order striking motion to certify class 70 is granted. Plaintiff should file a renewed motion for class certification by 3/21/13; the renewed motion will be construed as being filed on 2/14/13. Status hearing set for 6/5/13 at 9:00 a.m., at which time the parties are to report on more expected dates of the completion of ESI production. Mailed notice (ca, ) (Entered: 03/15/2013)
74 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to certify class or Representative Habeas Action (Carr, Benjamin) (Entered: 03/18/2013)
75 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez, Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to Amend the Scheduling Order Regarding Class Certification Briefing (Carr, Benjamin) (Entered: 04/12/2013)
76 NOTICE of Motion by Benjamin Paul Carr for presentment of motion for miscellaneous relief 75 before Honorable John Z. Lee on 4/17/2013 at 09:00 AM. (Carr, Benjamin) (Entered: 04/12/2013)
77 MINUTE entry before Honorable John Z. Lee: Pursuant to the Court's order of 3/14/13, Plaintiffs filed a renewed motion for class certification on 3/18/13. Because the parties are conducting discovery as to these issues, the motion will be entered and continued. Along the same lines, the Court grants the Joint Motion to Amend the Scheduling Order Regarding Class Certification Briefing 75 . Plaintiff's brief in support of its motion for class certification will be due on 6/21/13; Defendants' response is due on 7/22/13; Plaintiffs' reply is due on 8/5/13. No appearance is necessary on 4/17/13. Mailed notice (ca, ) (Entered: 04/16/2013)
78 AMENDED complaint by Jose Jimenez Moreno, Maria Jose Lopez against John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Attachments: # 1 Exhibit A − B)(Carr, Benjamin) (Entered: 05/01/2013)
79 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for protective order DEFENDANTS UNOPPOSED MOTION FOR THE ENTRY OF A PRIVACY ACT PROTECTIVE ORDER (Attachments: # 1 Text of Proposed Order Privacy Act Protective Order)(Vahab, Lana) (Entered: 05/07/2013)
80 NOTICE of Motion by Lana Lunskaya Vahab for presentment of motion for protective order, 79 before Honorable John Z. Lee on 5/14/2013 at 09:00 AM. (Vahab, Lana) (Entered: 05/07/2013)
81 MINUTE entry before Honorable John Z. Lee: Defendants' unopposed motion for the entry of a privacy act protective order 79 is stricken for failure to comply with the Court's standing order and Local Rules regarding protective orders. Defendants are granted leave to file an amended protective order consistent with the Court's standing order and the Local Rules. No appearance is necessary on 5/14/13.Mailed notice (ca, ) (Entered: 05/13/2013)
82 ANSWER to amended complaint by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong(Silvis, William) (Entered: 05/13/2013)
83 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for an Entry of an Agreed Confidentiality Order in accordance with L.R. 26.2 (Vahab, Lana) (Entered: 05/28/2013)
84 NOTICE of Motion by Lana Lunskaya Vahab for presentment of motion for miscellaneous relief 83 before Honorable John Z. Lee on 6/4/2013 at 09:00 AM. (Vahab, Lana) (Entered: 05/28/2013)

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06/03/2013 06/03/2013 06/05/2013 06/17/2013 06/17/2013 06/17/2013 06/17/2013 06/19/2013
06/20/2013 06/21/2013 06/21/2013
06/24/2013 06/24/2013 06/24/2013 06/25/2013
07/15/2013

85 MINUTE entry before Honorable John Z. Lee: Defendants' unopposed motion for entry of a Privacy Act confidentiality order 83 is granted. Order shall be entered. No appearance is necessary on 6/4/13. Mailed notice (ca, ) (Entered: 06/03/2013)
86 AGREED Confidentiality Order Signed by the Honorable John Z. Lee on 6/3/13Mailed notice(ca, ). (Entered: 06/03/2013)
87 MINUTE entry before Honorable John Z. Lee:Status hearing held on 6/5/13. The parties report they are proceeding with discovery. Status hearing set for 8/22/13 at 9:00 a.m. Mailed notice (ca, ) (Entered: 06/05/2013)
88 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for leave to file excess pages (Unopposed) (Wallace, Joel) (Entered: 06/17/2013)
89 NOTICE of Motion by Joel M Wallace for presentment of motion for leave to file excess pages 88 before Honorable John Z. Lee on 6/20/2013 at 09:00 AM. (Wallace, Joel) (Entered: 06/17/2013)
90 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for leave to file documents under seal(Unopposed) (Wallace, Joel) (Entered: 06/17/2013)
91 NOTICE of Motion by Joel M Wallace for presentment of motion for leave to file 90 before Honorable John Z. Lee on 6/20/2013 at 09:00 AM. (Wallace, Joel) (Entered: 06/17/2013)
92 MINUTE entry before Honorable John Z. Lee: Plaintiffs' unopposed motion for leave to file under seal is granted. Plaintiffs' unopposed motion for leave to file a brief in excess of 15 pages is granted. Plaintiffs' brief in support of their motion for class certification may include up to 20 pages; Defendants' brief in response may include up to 20 pages; Plaintiffs' reply brief is limited to 15 pages. No appearance is necessary on 6/20/13. Mailed notice (ca, ) (Entered: 06/19/2013)
93 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Charles Roth (Roth, Charles) (Entered: 06/20/2013)
94 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to certify class (amended) (Wallace, Joel) (Entered: 06/21/2013)
95 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez in support of motion to certify class 94 (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V)(Wallace, Joel) (Entered: 06/21/2013)
96 SEALED EXHIBIT by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez regarding memorandum in support of motion,, 95 (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit J)(Wallace, Joel) (Entered: 06/24/2013)
97 MOTION by counsel for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez, Intervenor Parties Sergey Mayorov, Nicholas Taylor−Jones to withdraw as attorney (Carr, Benjamin) (Entered: 06/24/2013)
98 NOTICE of Motion by Benjamin Paul Carr for presentment of motion to withdraw as attorney 97 before Honorable John Z. Lee on 6/27/2013 at 09:00 AM. (Carr, Benjamin) (Entered: 06/24/2013)
99 MINUTE entry before Honorable John Z. Lee:Plaintiffs' and intervening plaintiffs' motion for leave to withdraw counsel 97 is granted, attorney Benjamin Carr is granted leave to withdraw his appearance. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 06/25/2013)
100 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo WongAGREED MOTION TO AMEND THE SCHEDULING ORDER REGARDING CLASS CERTIFICATION BRIEFING AND THE CLOSE OF DISCOVERY (Vahab, Lana) (Entered: 07/15/2013)

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 14 of 25

07/15/2013 07/24/2013
08/01/2013 08/01/2013 08/01/2013 08/02/2013 08/02/2013 08/02/2013 08/05/2013
08/08/2013
09/19/2013 09/19/2013 09/20/2013 09/20/2013 09/20/2013
09/20/2013

101 NOTICE of Motion by Lana Lunskaya Vahab for presentment of motion for miscellaneous relief 100 before Honorable John Z. Lee on 7/25/2013 at 09:00 AM. (Vahab, Lana) (Entered: 07/15/2013)
102 MINUTE entry before Honorable John Z. Lee: Defendants' agreed motion to amend the scheduling order 100 is granted. Defendants' brief in opposition to class certification will be due on 8/5/13; Plaintiffs' reply brief on 8/19/13. Fact discovery will close on 10/1/13. No appearance is necessary on 7/25/13. Mailed notice (ca, ) (Entered: 07/24/2013)
103 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for leave to file excess pages (Vahab, Lana) (Entered: 08/01/2013)
104 NOTICE of Motion by Lana Lunskaya Vahab for presentment of motion for leave to file excess pages 103 before Honorable John Z. Lee on 8/8/2013 at 09:00 AM. (Vahab, Lana) (Entered: 08/01/2013)
105 MINUTE entry before Honorable John Z. Lee: The motion to certify class 74 is moot, the motion was amended as document 94 .Mailed notice (ca, ) (Entered: 08/01/2013)
106 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for judgment on the pleadings on pure legal issues (Kisor, Colin) (Entered: 08/02/2013)
107 MEMORANDUM in support of motion for partial judgment on the pleadings by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Kisor, Colin) Modified on 8/5/2013 by Clerk's Office(mb, ). (Entered: 08/02/2013)
108 NOTICE of Motion by Colin Abbott Kisor for presentment of motion for judgment on the pleadings 106 , motion for judgment on the pleadings 107 before Honorable John Z. Lee on 8/8/2013 at 09:00 AM. (Kisor, Colin) (Entered: 08/02/2013)
109 RESPONSE by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wongin Opposition to MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to certify class (amended) 94 (Attachments: # 1 Appendix Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Vahab, Lana) (Entered: 08/05/2013)
110 MINUTE entry before Honorable John Z. Lee: Motion hearing held on 8/8/13. Defendants' unopposed motion for leave to file brief in excess of twenty pages 103 is granted. Defendants'' brief in response may include up to 25 pages; Plaintiffs' reply brief is limited to 20 pages. Plaintiffs' response to defendants' motion for partial judgment on the pleadings is due by 9/20/13; reply due 10/4/13. Plaintiffs' reply to the motion for class certification is due by 9/20/13. Status hearing set for 10/23/13 at 9:00 a.m. Mailed notice (ca, ) (Entered: 08/08/2013)
111 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Giovanni Angles (Angles, Giovanni) (Entered: 09/19/2013)
112 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Joanna Rubin Travalini (Travalini, Joanna) (Entered: 09/19/2013)
113 REPLY by Jose Jimenez Moreno, Maria Jose Lopez to response in opposition to motion, 109 (Attachments: # 1 Exhibit A−C)(Coberly, Linda) (Entered: 09/20/2013)
114 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for judgment on the pleadings (Partial) (Coberly, Linda) (Entered: 09/20/2013)
115 Memorandum of Law in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Judgment on the Pleadings 106 and Plaintiffs' Cross Motion for Partial Judgment on the Pleadings 114 by Jose Jimenez Moreno, Maria Jose Lopez (Attachments: # 1 Exhibit A−E, # 2 Exhibit F−J)(Coberly, Linda) (Entered: 09/20/2013)
116 NOTICE of Motion by Linda T. Coberly for presentment of motion for judgment on the pleadings 114 before Honorable John Z. Lee on 9/25/2013 at 09:00 AM. (Coberly, Linda) (Entered: 09/20/2013)

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09/23/2013 09/25/2013 09/25/2013 09/30/2013
10/01/2013 10/01/2013 10/02/2013
10/22/2013 10/25/2013
10/29/2013 10/29/2013 12/19/2013 02/27/2014 03/05/2014 04/25/2014 05/23/2014 05/23/2014 05/23/2014

117 MINUTE entry before Honorable John Z. Lee: The briefing schedule on the motion for judgment on the pleadings set on 8/8/13 is to stand; no appearance is necessary on 9/25/13.Mailed notice (ca, ) (Entered: 09/23/2013)
118 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for extension of time to complete discovery (AGREED MOTION) (Silvis, William) (Entered: 09/25/2013)
119 NOTICE of Motion by William Charles Silvis for presentment of motion for extension of time to complete discovery 118 before Honorable John Z. Lee on 10/1/2013 at 09:00 AM. (Silvis, William) (Entered: 09/25/2013)
120 MINUTE entry before Honorable John Z. Lee: The parties' agreed motion to amend the scheduling order regarding the close of discovery 118 is granted. Fact discovery will now conclude on 11/1/13. No appearance is necessary for the motion. Mailed notice (ca, ) (Entered: 09/30/2013)
121 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to stay briefing schedule on motions for partial judgment on the pleadings (Silvis, William) (Entered: 10/01/2013)
122 NOTICE of Motion by William Charles Silvis for presentment of motion to stay 121 before Honorable John Z. Lee on 10/3/2013 at 09:00 AM. (Silvis, William) (Entered: 10/01/2013)
123 MINUTE entry before Honorable John Z. Lee: The parties agreed motion for a stay of the briefing schedule on the motions for partial judgment on the pleadings 121 is granted; The briefing schedule on motions 106 and 114 is stayed. The deadlines for the parties will be extended to commensurate with the duration of the lapse in appropriations plus an additional seven days. No appearance necessary on the motion. Mailed notice (ca, ) (Entered: 10/02/2013)
124 MINUTE entry before Honorable John Z. Lee: The status hearing set for 10/23/13 is reset to 12/19/13 at 9:00 a.m.Mailed notice (ca, ) (Entered: 10/22/2013)
125 REPLY by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to motion for judgment on the pleadings 106 , notice of motion 108 , motion for judgment on the pleadings 114 , other, 115 , reply to response to motion 113 (Attachments: # 1 Certificate of Service)(Kisor, Colin) (Entered: 10/25/2013)
126 NOTICE by Mark M. Fleming of Change of Address (Fleming, Mark) (Entered: 10/29/2013)
127 NOTICE by Claudia Beatrice Valenzuela Rivas of Change of Address (Valenzuela Rivas, Claudia) (Entered: 10/29/2013)
128 MINUTE entry before the Honorable John Z. Lee:Status hearing held on 12/19/13. Status hearing set for 3/6/14 at 9:00 a.m. Mailed notice (ca, ) (Entered: 12/19/2013)
129 ATTORNEY Appearance for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong by Jacob A Bashyrov (Bashyrov, Jacob) (Entered: 02/27/2014)
130 MINUTE entry before the Honorable John Z. Lee: The status hearing set for 3/6/14 is reset 4/30/14 at 9:00 a.m.Mailed notice (ca, ) (Entered: 03/05/2014)
131 MINUTE entry before the Honorable John Z. Lee: The status hearing set for 4/30/14 is reset to 7/1/14 at 9:00 a.m.Mailed notice (ca, ) (Entered: 04/25/2014)
132 MOTION by counsel for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to withdraw as attorney Giovanni Angles (Travalini, Joanna) (Entered: 05/23/2014)
133 NOTICE of Motion by Joanna Rubin Travalini for presentment of motion to withdraw as attorney 132 before Honorable John Z. Lee on 5/29/2014 at 09:00 AM. (Travalini, Joanna) (Entered: 05/23/2014)
134 MOTION by counsel for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to withdraw as attorney Joel M. Wallace (Travalini, Joanna) (Entered: 05/23/2014)

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 16 of 25

05/23/2014 05/27/2014
05/28/2014
06/13/2014 06/13/2014 06/27/2014 08/12/2014 09/17/2014 09/29/2014
09/29/2014 09/30/2014 09/30/2014 10/01/2014 10/09/2014 11/06/2014 01/07/2015 01/07/2015

135 NOTICE of Motion by Joanna Rubin Travalini for presentment of motion to withdraw as attorney 134 before Honorable John Z. Lee on 5/29/2014 at 09:00 AM. (Travalini, Joanna) (Entered: 05/23/2014)
136 MINUTE entry before the Honorable John Z. Lee:Plaintiffs' motion to withdraw as attorney 132 134 are granted. Giovanni Angles and Joel M Wallace are granted leave to withdraw their appearances. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 05/27/2014)
137 MINUTE entry before the Honorable John Z. Lee: The United States Court of Appeals for the Third Circuit recently issued its decision in Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014). The Court requests that Plaintiffs and Defendants file separate supplemental memoranda, not to exceed seven pages each, addressing this case and the impact (if any) the case may have on the pending motion for class certification and motions for judgment on the pleadings. The memoranda should be filed by June 13, 2014. Mailed notice (ca, ) (Entered: 05/28/2014)
138 SUPPLEMENT to text entry,, 137 Defendants' Supplemental Memoranda addressing Galarza v. Szalczyk, 745 F.3d 634 (3d. Cir. 2014). (Vahab, Lana) (Entered: 06/13/2014)
139 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez addressing the impact (if any) of Galarza v. Szalczyk (Coberly, Linda) (Entered: 06/13/2014)
140 MINUTE entry before the Honorable John Z. Lee: The status hearing set for 7/1/14 is reset to 8/20/14 at 9:00 a.m.Mailed notice (ca, ) (Entered: 06/27/2014)
141 MINUTE entry before the Honorable John Z. Lee: The status hearing set for 8/20/14 is reset to 9/25/14 at 9:00 a.m. Mailed notice (ca, ) (Entered: 08/12/2014)
142 MINUTE entry before the Honorable John Z. Lee:The status hearing set for 9/25/14 is reset to 10/14/14 at 9:00 a.m.Mailed notice (ca, ) (Entered: 09/17/2014)
143 MINUTE entry before the Honorable John Z. Lee: For the reasons stated in the Court's Memorandum Opinion and Order, Plaintiffs' Motion for Partial Judgment on the Pleadings 114 is denied. Defendants' Motion for Judgment on the Pleadings 106 is granted in part and denied in part. [For further details see memorandum opinion and order.] Mailed notice (ca, ) (Entered: 09/29/2014)
144 MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/29/14Mailed notice(ca, ). (Entered: 09/29/2014)
145 MINUTE entry before the Honorable John Z. Lee: Plaintiffs' Motion to Certify Class 94 is granted. [For further details see memorandum opinion and order].Mailed notice (ca, ) (Entered: 09/30/2014)
146 MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/30/14Mailed notice(ca, ). (Entered: 09/30/2014)
147 MINUTE entry before the Honorable John Z. Lee: By agreement of the parties, the status hearing set for 10/14/14 is reset to 10/30/14 at 9:15 a.m.Mailed notice (ca, ) (Entered: 10/01/2014)
148 MINUTE entry before the Honorable John Z. Lee: By agreement of the parties, the status hearing set for 10/30/14 is reset to 11/6/14 at 9:15 a.m.Mailed notice (ca, ) (Entered: 10/09/2014)
149 MINUTE entry before the Honorable John Z. Lee:Status hearing held on 11/6/14. Motion for summary judgment is due by 1/23/15; response due by 3/6/15; reply due by 3/27/15; ruling will be by mail.Mailed notice (ca, ) (Entered: 11/06/2014)
150 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for an Extension to the Briefing Schedule on the Motions for Summary Judgment (AGREED) (Coberly, Linda) (Entered: 01/07/2015)
151 NOTICE of Motion by Linda T. Coberly for presentment of motion for miscellaneous relief 150 before Honorable John Z. Lee on 1/15/2015 at 09:00 AM. (Coberly, Linda) (Entered: 01/07/2015)

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01/14/2015
01/28/2015 02/05/2015 03/16/2015 03/16/2015 03/17/2015 03/26/2015 03/26/2015 03/30/2015 03/30/2015 04/03/2015
04/09/2015
04/09/2015

152 MINUTE entry before the Honorable John Z. Lee: Plaintiffs inform the Court that a recent Executive Action issued by the President may material impact the scope of the relief requested in this case. Agreed motion for an extension of the briefing schedule on the motions for summary judgment 150 is granted. Motions for Summary Judgment, with initial briefs are due by March 20, 2015, response briefs are due May 1, 2015, and reply briefs are due May 22, 2015. No appearance is required on the motion. Mailed notice (ca, ) (Entered: 01/14/2015)
153 MOTION by Movant Julien Morena Garcon for declaratory relief (Exhibits). (mgh, ) (Entered: 02/03/2015)
154 MINUTE entry before the Honorable John Z. Lee: Movant's motion 153 is stricken without prejudice. Movant is neither an intervenor nor a named plaintiff. Any correspondence with the Court should be done through class counsel.Mailed notice (ca, ) (Entered: 02/05/2015)
155 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for extension of time to the Briefing Schedule on the Motions for Summary Judgement (AGREED) (Coberly, Linda) (Entered: 03/16/2015)
156 NOTICE of Motion by Linda T. Coberly for presentment of extension of time 155 before Honorable John Z. Lee on 3/31/2015 at 09:00 AM. (Coberly, Linda) (Entered: 03/16/2015)
157 MINUTE entry before the Honorable John Z. Lee:Agreed motion for an extension to the briefing schedule on the motions for summary judgment 155 is granted. Motions for Summary Judgment, with initial briefs are due by July 2, 2015, response briefs are due August 20, 2015, and reply briefs are due September 17, 2015. No appearance is required on the motion. Mailed notice (ca, ) (Entered: 03/17/2015)
158 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for Settlement Conference (JOINT) (Coberly, Linda) (Entered: 03/26/2015)
159 NOTICE of Motion by Linda T. Coberly for presentment of motion for miscellaneous relief 158 before Honorable John Z. Lee on 4/1/2015 at 09:00 AM. (Coberly, Linda) (Entered: 03/26/2015)
160 MINUTE entry before the Honorable John Z. Lee: Plaintiff's Joint Motion for settlement conference 158 is granted. The case is referred to Magistrate Judge Cole for the purpose of conducting a settlement conference. The parties should discuss available dates for the conference with Magistrate Judge Cole. Mailed notice (np, ) (Entered: 03/30/2015)
161 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Jeffrey Cole for the purpose of holding proceedings related to: settlement conference. (np, ) Mailed notice. (Entered: 03/30/2015)
162 MINUTE entry before the Honorable Jeffrey Cole: The parties are directed to conference call the courtroom deputy at 312−408−5178 by 4/8/2015 to set a settlement conference date. The parties are directed to contact their respective clients in advance of the conference call to procure 3 or 4 dates that they and the principals are available for a settlement conference between 4/22/2015 and 5/14/2015. The court has many earlier dates available at 7:00 am if the parties wish to proceed then. Mailed notice (jms, ) (Entered: 04/03/2015)
163 MINUTE entry before the Honorable Jeffrey Cole: Status hearing is set for 4/13/2015 at 08:30 AM to set a settlement conference date. The parties are directed to contact their respective clients in advance of the status date to procure 3 or 4 dates that they and the principals are available for a settlement conference. All counsel must attend the status hearing set for 4/13/2015 at 08:30 AM.Mailed notice (jms, ) (Entered: 04/09/2015)
164 MINUTE entry before the Honorable Jeffrey Cole: Settlement Conference set for 4/23/2015 at 01:00 PM in Courtroom 1003. The parties shall strictly abide by this Court's Standing Order for Settlement Conference which appears on the court's website and which counsel must review. Plaintiff's counsel shall submit copies of both plaintiff's settlement demand letter as well as defendant's response letter to Room 1010 by 4/20/2015. The schedule for the preparation and ultimate submission to the court of

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 18 of 25

04/09/2015 04/22/2015 04/22/2015 04/23/2015 04/23/2015 04/23/2015 04/29/2015 05/14/2015 06/04/2015
06/05/2015 06/05/2015 06/08/2015
07/13/2015

the parties' respective written presentations is spelled out in the Standing Order. Mailed notice (jms, ) (Entered: 04/09/2015)
165 MINUTE entry before the Honorable Jeffrey Cole: Status hearing date of 4/13/2015 is stricken.Mailed notice (jms, ) Modified on 4/9/2015 (jms, ). (Entered: 04/09/2015)
166 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to Excuse Attendance of Plaintiff Maria Jose Lopez at Settlement Conference (AGREED EMERGENCY) (Attachments: # 1 Exhibit A)(Coberly, Linda) (Entered: 04/22/2015)
167 NOTICE of Motion by Linda T. Coberly for presentment of motion for miscellaneous relief 166 before Honorable Jeffrey Cole on 4/23/2015 at 01:00 PM. (Coberly, Linda) (Entered: 04/22/2015)
168 MINUTE entry before the Honorable Jeffrey Cole:Plaintiff's agreed emergency motion to excuse attendance of plaintiff Maria Jose Lopez at the settlement conference today 166 is granted.Mailed notice (jms, ) (Entered: 04/23/2015)
169 MINUTE entry before the Honorable Jeffrey Cole:Settlement conference held and continued for a telephone conference on 5/14/15. The parties must either call in on a conference call or must provide the court with a call in number. Mailed notice (jms, ) (Entered: 04/27/2015)
170 MOTION by Movant Julien Morena Garcon for preliminary injunction or permanent injunction. (EXHIBITS). (ks, ) (Entered: 04/28/2015)
171 MINUTE entry before the Honorable John Z. Lee:Movant's motion 170 is stricken without prejudice. Again, Movant is neither an intervenor nor a named plaintiff. See 2/05/15 Minute Order. Any correspondence with the Court should be done through class counsel.Mailed notice (ca, ) (Entered: 04/29/2015)
172 MINUTE entry before the Honorable Jeffrey Cole: Telephonic Settlement conference held and continued to 6/4/15 at 10:00 a.m. By agreement, the same conference call number will be used.Mailed notice (jms, ) (Entered: 05/26/2015)
173 MINUTE entry before the Honorable Jeffrey Cole: Telephonic settlement conference held and continued to 7/13/15 at 8:30 a.m. in Court. The parties report that while the defendants anticipate making a counter−proposal to the plaintiffs' settlement demand, they cannot do so until the "roll out" of the government's new priority enforcement program. While the defendants hope that event will occur "soon," there is no specified date for the roll out and it is at the Secretary's discretion. Should counsel for the plaintiffs desire to have input into that program beyond that which they have already had −− however significant or limited that may have been −− they will have to discuss the matter with counsel for the defendants. If the roll out has not yet occurred prior to the next settlement conference (and thus the counter proposal will not have been made), counsel is to advise the court by motion for a continuance and by telephone with a call to chambers (312−435−5601) that the conference must be rescheduled so as to not needlessly inconvenience those lawyers who will be flying in from Washington and elsewhere. Mailed notice (np, ) (Entered: 06/04/2015)
174 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for extension of time to the Briefing Schedule on the Motions for Summary Judgment (AGREED) (Coberly, Linda) (Entered: 06/05/2015)
175 NOTICE of Motion by Linda T. Coberly for presentment of extension of time 174 before Honorable John Z. Lee on 6/10/2015 at 09:00 AM. (Coberly, Linda) (Entered: 06/05/2015)
176 MINUTE entry before the Honorable John Z. Lee:Agreed motion for an extension to the briefing schedule on the motions for summary judgment 174 is granted. Plaintiffs motion and initial brief is due by August 28, 2015; Defendants response and any cross−motion are due by October 16, 2015; Plaintiffs responsive papers are due by November 13, 2015; and Defendants reply supporting any cross−motion is due by December 4, 2015. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 06/08/2015)
177 MINUTE entry before the Honorable Jeffrey Cole:Settlement conference held and continued to 7/23/2015 at 09:00 AM for further phone conference. Between now and

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 19 of 25

07/23/2015 08/17/2015 08/17/2015 08/18/2015
09/21/2015 09/21/2015 09/23/2015
10/07/2015 12/02/2015 12/02/2015 12/04/2015 12/04/2015
12/11/2015

July 23rd, the parties will be discussing a possible framework −− first discussed today −− for resolving the case. The parties and their counsel are to be commended for the creative and cooperative spirit in which they have approached settlement in this case. Their conduct is proof that lawyers can act with civility and courtesy in their dealings with opposing counsel without sacrificing the obligations owed to their respective clients or diminishing the importance of the questions raised by the case. Mailed notice (jms, ) (Entered: 07/13/2015)
178 MINUTE entry before the Honorable Jeffrey Cole:Further telephonic settlement conference held.Mailed notice (jms, ) (Entered: 07/23/2015)
179 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for an Extension to the Briefing Schedule on the Motions for Summary Judgment (Agreed) (Coberly, Linda) (Entered: 08/17/2015)
180 NOTICE of Motion by Linda T. Coberly for presentment of motion for miscellaneous relief 179 before Honorable John Z. Lee on 8/20/2015 at 09:00 AM. (Coberly, Linda) (Entered: 08/17/2015)
181 MINUTE entry before the Honorable John Z. Lee: Agreed motion for an extension to the briefing schedule on the motions for summary judgment 179 is granted. Plaintiffs' summary judgment motion is now due by September 28, 2015; Defendants' response and any cross−motion is due November 16, 2015; Plaintiffs' reply in support of its summary judgment motion and response to any cross−motion is due December 14, 2015; and Defendants' reply supporting any cross−motion is due January 4, 2016. No appearance is required on the motion. Mailed notice (ca, ) (Entered: 08/18/2015)
182 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for Entry of a New Briefing Schedule on Motions for Summary Judgment (AGREED) (Coberly, Linda) (Entered: 09/21/2015)
183 NOTICE of Motion by Linda T. Coberly for presentment of motion for miscellaneous relief 182 before Honorable John Z. Lee on 9/24/2015 at 09:00 AM. (Coberly, Linda) (Entered: 09/21/2015)
184 MINUTE entry before the Honorable John Z. Lee:Agreed motion for entry of a new briefing schedule on motions for summary judgment 182 is granted. Plaintiffs motion for summary judgment is due by December 4, 2015; Defendants opposition and any cross−motion are due January 15, 2016; Plaintiffs reply and opposition to any cross−motion are due February 17, 2016; Defendants reply supporting any cross−motion are due March 2, 2016. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 09/23/2015)
185 ATTORNEY Appearance for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong by Katherine Elizabeth Goettel (Goettel, Katherine) (Entered: 10/07/2015)
186 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for extension of time to file by One−Week, Plaintiffs' Motion for Summary Judgment (Emergency Agreed) (Coberly, Linda) (Entered: 12/02/2015)
187 NOTICE of Motion by Linda T. Coberly for presentment of motion for extension of time to file 186 before Honorable John Z. Lee on 12/8/2015 at 09:00 AM. (Coberly, Linda) (Entered: 12/02/2015)
188 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Lee Benjamin Muench (Muench, Lee) (Entered: 12/04/2015)
189 MINUTE entry before the Honorable John Z. Lee:Plaintiff's agreed motion for a one week extension of time on plaintiff's motion for summary judgment 186 is granted. Plaintiffs motion for summary judgment is due by December 11, 2015; Defendants opposition and any cross−motion are due January 22, 2016; Plaintiffs reply and opposition to any cross−motion are due February 24, 2016; Defendants reply supporting any cross−motion are due March 9, 2016. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 12/04/2015)
190 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for leave to file excess pages in Brief in Support of Plaintiffs' Motion for Summary Judgment (Coberly,

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 20 of 25

12/11/2015 12/11/2015 12/11/2015 12/11/2015 12/11/2015
12/15/2015
12/16/2015 12/18/2015 12/31/2015 12/31/2015
12/31/2015 01/05/2016 01/07/2016

Linda) (Entered: 12/11/2015)
191 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for leave to file documents provisionally under seal (Coberly, Linda) (Entered: 12/11/2015)
192 MOTION by Plaintiffs Maria Jose Lopez, Jose Jimenez Moreno for summary judgment (Coberly, Linda) (Entered: 12/11/2015)
193 SEALED DOCUMENT by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez Plaintiffs' Memorandum of Law in Support of their Motion for Summary Judgment 192 (Coberly, Linda) (Entered: 12/11/2015)
194 NOTICE of Motion by Linda T. Coberly for presentment of motion for summary judgment 192 , motion for miscellaneous relief 191 , motion for leave to file excess pages 190 before Honorable John Z. Lee on 12/16/2015 at 09:00 AM. (Coberly, Linda) (Entered: 12/11/2015)
195 SEALED DOCUMENT by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez Local Rule 56.1(a) Statement of Material Facts (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG, # 35 Exhibit HH, # 36 Exhibit II, # 37 Exhibit JJ, # 38 Exhibit KK, # 39 Exhibit LL, # 40 Exhibit MM)(Coberly, Linda) (Entered: 12/11/2015)
196 MINUTE entry before the Honorable John Z. Lee:Plaintiffs' unopposed motion for leave to file brief exceeding page limit 190 is granted. Motion for leave to file documents provisionally under seal 191 is granted. The government has 28 days from the date of this order to file a response to the motion for leave to file documents provisionally under seal, setting forth the basis for the confidential designations on the documents at issue. No appearance is required on the motion. Mailed notice (ca, ) (Entered: 12/15/2015)
197 MINUTE entry before the Honorable John Z. Lee: The Clerk's Office is directed to provide the parties with access to documents filed under seal in this case.Mailed notice (ca, ) (Entered: 12/16/2015)
198 MINUTE entry before the Honorable John Z. Lee: Minute order 197 is corrected: The clerks office is directed to provide plaintiff's counsel and defense counsel with access to sealed documents 193 and 195 on the docket. Mailed notice (ca, ) (Entered: 12/18/2015)
199 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to de−certify the class (Goettel, Katherine) (Entered: 12/31/2015)
200 MEMORANDUM by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong in support of motion for miscellaneous relief 199 (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Goettel, Katherine) (Entered: 12/31/2015)
201 NOTICE of Motion by Katherine Elizabeth Goettel for presentment of motion for miscellaneous relief 199 before Honorable John Z. Lee on 1/6/2016 at 09:00 AM. (Goettel, Katherine) (Entered: 12/31/2015)
202 MINUTE entry before the Honorable John Z. Lee: Plaintiff's response to Defendants' motion to de−certify class 199 is due by 1/29/16; Defendants' reply is due by 2/19/16. No appearance is required on 1/6/16.Mailed notice (ca, ) (Entered: 01/05/2016)
203 MOTION by Amicus Law Professors as Proposed Amici Curiae for leave to file Brief of Amici Curiae in Support of Plaintiffs' Motion for Summary Judgment (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order)(Lasch, Christopher) (Entered: 01/07/2016)

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 21 of 25

01/07/2016 01/07/2016 01/12/2016
01/13/2016 01/13/2016 01/14/2016 01/14/2016 01/14/2016 01/20/2016
01/22/2016 02/03/2016 02/03/2016 02/04/2016

204 ATTORNEY Appearance for Amicus Law Professors as Proposed Amici Curiae by Christopher Nelson Lasch (Lasch, Christopher) (Entered: 01/07/2016)
205 NOTICE of Motion by Christopher Nelson Lasch for presentment of motion for leave to file, 203 before Honorable John Z. Lee on 1/20/2016 at 09:00 AM. (Lasch, Christopher) (Entered: 01/07/2016)
206 RESPONSE by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to order on motion for leave to file excess pages, order on motion for miscellaneous relief, text entry,,,,,, 196 , and order directing a response to Plaintiffs' motion to file exhibits under seal (Attachments: # 1 Ex. A, # 2 Ex. B)(Goettel, Katherine) (Entered: 01/12/2016)
207 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier for extension of time to file response/reply as to motion for summary judgment 192 unopposed (Kisor, Colin) (Incorrect pdf document linked − Docket Text Modified by Clerk's Office) Modified on 1/14/2016 (jc, ). (Entered: 01/13/2016)
208 MEMORANDUM by John Morton, Janet Napolitano, David C. Palmatier in support of motion for extension of time to file response/reply, motion for relief 207 unopposed (Kisor, Colin) (Incorrect pdf document linked − Docket Text Modified by Clerk's Office) Modified on 1/14/2016 (jc, ). (Entered: 01/13/2016)
209 NOTICE of Correction regarding 207 208 (jc, ) (Entered: 01/14/2016)
210 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier for extension of time unopposed (Kisor, Colin) (Entered: 01/14/2016)
211 corrected NOTICE of Motion by Colin Abbott Kisor for presentment of extension of time 210 before Honorable John Z. Lee on 1/20/2016 at 09:00 AM. (Kisor, Colin) (Entered: 01/14/2016)
212 MINUTE entry before the Honorable John Z. Lee: Motion hearing held on 1/20/16. Motion of proposed amici curiae for leave to file brief in support of plaintiffs' motion for summary judgment 203 is granted. The government's response to the amicus brief is due by 4/29/16. Defendants unopposed motion to extend briefing schedules for the two pending motions and for extra pages on their opposition to plaintiffs' motion for summary judgment 210 is granted. Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and any Cross−Motion for Summary Judgment, not to exceed 25 pages, is due by 2/4/16; Plaintiffs' Opposition to Defendants' Motion to Decertify the Class due by 2/12/16; Defendants' Reply to Plaintiffs Opposition to Defendants Motion to Decertify the Class due by 2/26/16; Plaintiffs' Reply to Defendants' Opposition to Motion for Summary Judgment and Opposition to any Cross−Motion for Summary Judgment due by 3/9/16; Defendants' Reply (if any) to Plaintiffs' Opposition to any Cross−Motion for Summary Judgment due 3/23/16. Mailed notice (ca, ) (Entered: 01/20/2016)
213 Amicus Brief by Law Professors as Proposed Amici Curiae filed per Court's Order of January 20, 2016 (Docket #212) (Lasch, Christopher) (Entered: 01/22/2016)
214 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier for extension of time to file summary judgment opposition and related responses and replies (Goettel, Katherine) (Entered: 02/03/2016)
215 NOTICE of Motion by Katherine Elizabeth Goettel for presentment of extension of time 214 before Honorable John Z. Lee on 2/9/2016 at 09:00 AM. (Goettel, Katherine) (Entered: 02/03/2016)
216 MINUTE entry before the Honorable John Z. Lee:Defendants' agreed motion to extend the briefing schedules for two pending motions 214 is granted. Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and any Cross−Motion for Summary Judgment, not to exceed 25 pages, is due by 2/11/16; Plaintiffs' Opposition to Defendants' Motion to Decertify the Class due by 2/19/16; Defendants' Reply to Plaintiffs Opposition to Defendants Motion to Decertify the Class due by 3/4/16; Plaintiffs' Reply to Defendants' Opposition to Motion for Summary Judgment and Opposition to any Cross−Motion for Summary Judgment due by 3/16/16; Defendants' Reply (if any) to Plaintiffs' Opposition to any Cross−Motion for Summary Judgment due 3/30/16. No appearance is required on the motion.Mailed notice (ca, ) (Entered:

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 22 of 25

02/09/2016 02/09/2016 02/09/2016 02/19/2016 02/22/2016
03/01/2016 03/01/2016 03/01/2016 03/02/2016
03/04/2016 03/30/2016 04/27/2016 09/30/2016

02/04/2016)
217 RESPONSE by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wongin Opposition to MOTION by Plaintiffs Maria Jose Lopez, Jose Jimenez Moreno for summary judgment 192 (Kisor, Colin) (Entered: 02/09/2016)
218 MEMORANDUM by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong in Opposition to motion for summary judgment 192 with appendices A−F (Attachments: # 1 Appendix I−247N, # 2 Appendix I−247D, # 3 Appendix I−247X, # 4 Appendix, # 5 Appendix, # 6 Appendix)(Kisor, Colin) (Entered: 02/09/2016)
219 RULE 56 56.1b(3)(C) Statement by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong regarding motion for summary judgment 192 disputed facts (Kisor, Colin) (Entered: 02/09/2016)
220 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez in Opposition to motion for miscellaneous relief 199 (Coberly, Linda) (Entered: 02/19/2016)
221 MINUTE entry before the Honorable Jeffrey Cole: On 7/23/15, I held a telephonic settlement conference with counsel who, as I remember, were consulting to see if there was a framework for a possible settlement, in the face of their inability to reach an amicable resolution at one ore more prior settlement conferences held with the court. However, in the past 7 months I have not heard from counsel on either side. While inferences from silence are often perilous, United States v. Hale, 422 U.S. 171, 176 (1975), we have here not merely silence, but rather concrete action by the parties. The docket reflects that the plaintiffs have filed a motion for summary judgment in December 2015, and defendants have filed a motion to decertify the class also in late December. It appears, therefore, that the case is proceeding and that there is nothing further for this court to do under the referral which is limited to holding of a settlement conference. All matters relating to the referral having been completed, the referral is closed and the case returned to Judge Lee. Judge Honorable Jeffrey Cole no longer referred to the case.Mailed notice (jms, ) (Entered: 02/22/2016)
222 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to file instanter a Reply in Support of Plaintiffs' Motion for Leave to File Documents Provisionally Under Seal (Coberly, Linda) (Entered: 03/01/2016)
223 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez for extension of time to file response/reply as to motion for summary judgment 192 (Coberly, Linda) (Entered: 03/01/2016)
224 NOTICE of Motion by Linda T. Coberly for presentment of motion for extension of time to file response/reply, motion for relief 223 , motion to file instanter 222 before Honorable John Z. Lee on 3/8/2016 at 09:00 AM. (Coberly, Linda) (Entered: 03/01/2016)
225 MINUTE entry before the Honorable John Z. Lee:Plaintiff's unopposed motion for leave to file a reply instanter 222 is granted. Plaintiff's unopposed motion for a two−week extension of time 223 is granted. Plaintiffs' reply in support of their motion for summary judgment is due 3/30/16; Defendants' Reply (if any) to Plaintiffs' Opposition to any Cross−Motion for Summary Judgment due 4/13/16. No appearance is required on the motion. Mailed notice (ca, ) (Entered: 03/02/2016)
226 REPLY by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to memorandum in opposition to motion 220 (Attachments: # 1 Ex. J − 2012 Form I−247)(Goettel, Katherine) (Entered: 03/04/2016)
227 RESPONSE by Jose Jimenez Moreno, Maria Jose Lopezin Support of MOTION by Plaintiffs Maria Jose Lopez, Jose Jimenez Moreno for summary judgment 192 (Coberly, Linda) (Entered: 03/30/2016)
228 RESPONSE by Defendants John Morton, Janet Napolitano, David C. Palmatier to other 213 to amici curiae brief (Kisor, Colin) (Entered: 04/27/2016)
229 MINUTE entry before the Honorable John Z. Lee:For the reasons stated in the memorandum opinion and order, Defendants' motion to decertify Plaintiffs' class 199 is denied. Plaintiffs' motion for summary judgment 192 is granted as to their claim that ICE's issuance of immigration detainers exceeds the authority granted by 8 U.S.C. §§

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 23 of 25

09/30/2016 10/04/2016 10/04/2016 10/07/2016
10/26/2016 10/27/2016 10/27/2016 10/28/2016
11/02/2016
11/28/2016

1226(a) and 1357(a)(2) in violation of 5 U.S.C. § 706(2)(C). Because the immigration detainers issued under ICE's detention program seek to detain subjects without a warranteven in the absence of a determination by ICE that the subjects are likely to escape before a warrant can be obtainedthe Court will enter judgment for Plaintiffs declaring the immigration detainers issued against Plaintiffs void. However, the Court will stay the effect of this judgment until 5:00 pm. on October 7, 2016, to allow Defendants an opportunity to determine whether they will file a motion to stay the effect of the judgment pending appeal. If Defendants wish to file a motion to stay pending appeal, Defendants must file the motion by October 6, 2016, and notice the motion for presentation on October 7, 2016, at 2:00 p.m. A status hearing is set for October 7, 2016, at 2:00 p.m. [For further details see memorandum opinion and order.]Mailed notice (ca, ) (Entered: 09/30/2016)
230 MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/30/16. Mailed notice(ca, ) (Entered: 09/30/2016)
231 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong for extension of time to move to stay effect of judgment (Attachments: # 1 Memorandum of Law)(Goettel, Katherine) (Entered: 10/04/2016)
232 NOTICE of Motion by Katherine Elizabeth Goettel for presentment of extension of time 231 before Honorable John Z. Lee on 10/7/2016 at 02:00 PM. (Goettel, Katherine) (Entered: 10/04/2016)
233 MINUTE entry before the Honorable John Z. Lee: Status hearing held on 10/7/16. Defendants' motion for additional time to file a motion to stay the effect of judgment pending appeal 231 is granted without objection. Defendants' motion to stay effect of judgment pending appeal is due by 4:00 p.m. on 10/26/16. Status hearing set for 10/28/16 at 9:00 a.m. The current stay as to the effect of the judgment will be extended to 10/31/16. Mailed notice (ca, ) (Entered: 10/07/2016)
234 MEMORANDUM by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong in support of motion to stay the effect of judgment pending appeal authorization (Attachments: # 1 Attachment A − Declaration of ICE Assistant Director Matthew Albence)(Goettel, Katherine) (Docket Text Modified by Clerk's Office on 10/27/2016) (cc, ). (Entered: 10/26/2016)
235 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to unseal document − Unseal Plaintiffs' Summary Judgment Documents (JOINT) (Attachments: # 1 Index of Exhibits, # 2 Exhibit J, # 3 Exhibit K, # 4 Exhibit N, # 5 Exhibit R, # 6 Exhibit CC, # 7 Exhibit DD, # 8 Exhibit II)(Coberly, Linda) (Entered: 10/27/2016)
236 NOTICE of Motion by Linda T. Coberly for presentment of motion to unseal document, 235 before Honorable John Z. Lee on 10/28/2016 at 09:00 AM. (Coberly, Linda) (Entered: 10/27/2016)
237 MINUTE entry before the Honorable John Z. Lee: Status and motion hearing held on 10/28/16. Joint motion to unseal plaintiffs summary judgment documents 235 is granted. The clerk is directed to unseal documents 193, 195, 195−1, and 195−40. The following exhibits should not be unsealed: 195−11, 195−12, 195−15, 195−19, 195−30, 195−31, and 195−36. The unredacted versions are attached to minute entry 235 . The governments motion to stay the effect of judgment pending appeal authorization is granted in part without objection. Once the judgment is entered in this case, the effect of the judgment will be stayed for 60 days. Mailed notice (ca, ) (Entered: 10/28/2016)
238 MINUTE entry before the Honorable John Z. Lee: Minute order 237 is corrected: Status and motion hearing held on 10/28/16. Joint motion to unseal plaintiffs summary judgment documents 235 is granted. The clerk is directed to unseal documents 193, 195, 195−1 through 195−40. The following exhibits should not be unsealed: 195−11, 195−12, 195−15, 195−19, 195−30, 195−31, and 195−36. Redacted versions are attached to minute entry 235. The governments motion to stay the effect of judgment pending appeal authorization is granted in part without objection. Once the judgment is entered in this case, the effect of the judgment will be stayed for 60 days. Mailed notice (ca, ) (Entered: 11/02/2016)
239 JUDGMENT Signed by the Honorable John Z. Lee on 11/28/16. Mailed notice(ca, ) (Entered: 11/28/2016)

Case: 1:11-cv-5452 As of: 03/12/2017 02:35 PM CDT 24 of 25

11/28/2016 12/27/2016 12/27/2016 12/27/2016 12/27/2016 12/28/2016
01/09/2017 01/10/2017 01/11/2017
01/20/2017 01/20/2017 01/20/2017 01/25/2017 01/25/2017 02/01/2017 02/14/2017

***Civil Case Terminated. (ca, ). (Entered: 12/16/2016)
240 ATTORNEY Appearance for Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez by Sean H. Suber (Suber, Sean) (Entered: 12/27/2016)
241 MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to amend/correct order 239 (Coberly, Linda) (Entered: 12/27/2016)
242 MEMORANDUM by Jose Jimenez Moreno, Maria Jose Lopez in support of motion to amend/correct, motion for relief 241 (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Coberly, Linda) (Entered: 12/27/2016)
243 NOTICE of Motion by Linda T. Coberly for presentment of motion to amend/correct, motion for relief 241 before Honorable John Z. Lee on 1/11/2017 at 09:00 AM. (Coberly, Linda) (Entered: 12/27/2016)
244 MINUTE entry before the Honorable John Z. Lee: The motion hearing on 1/11/17 at 9:00 a.m. shall stand. The parties are ordered to report whether Defendants object to Plaintiffs' motion to amend/correct order 241 in a status report filed on the docket no later than 1/10/17. Mailed notice (ber, ) (Entered: 12/28/2016)
246 MAIL RETURNED, for document # 244 sent to Julien Morena Garcon returned as undeliverable, return to sender. New address found, re−mailed to 2100 N. Australian Ave, #414N, West Palm Beach, FL 33407 (ags, ) (Entered: 01/11/2017)
245 STATUS Report regarding Plaintiffs' Motion to Amend or Alter Judgment by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong (Goettel, Katherine) (Entered: 01/10/2017)
247 MINUTE entry before the Honorable John Z. Lee: Motion hearing held on 1/11/17. For the reasons stated on the record, Plaintiff's motion to alter or amend judgment 241 is denied to the extent that Plaintiff request that the class definition be modified. As for the remaining issues raised in the motion, the government's response shall be due by 1/25/17; reply due by 2/1/17. Mailed notice (ca, ) (Entered: 01/11/2017)
248 MOTION by Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong to stay the effect of judgment (Goettel, Katherine) (Entered: 01/20/2017)
249 MEMORANDUM by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong in support of motion to stay 248 (Goettel, Katherine) (Entered: 01/20/2017)
250 NOTICE of Motion by Katherine Elizabeth Goettel for presentment of motion to stay 248 before Honorable John Z. Lee on 1/26/2017 at 09:00 AM. (Goettel, Katherine) (Entered: 01/20/2017)
251 MINUTE entry before the Honorable John Z. Lee:Unopposed motion to extend the stay of the effect of the judgment pending appeal authorization 248 is granted. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 01/25/2017)
252 MEMORANDUM by John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong in opposition to Plaintiffs' Rule 59 Motion to Alter or Amend Judgment (Goettel, Katherine) (Entered: 01/25/2017)
253 REPLY by Jose Jimenez Moreno, Maria Jose Lopez to MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to amend/correct order 239 241 (In Support) (Coberly, Linda) (Entered: 02/01/2017)
254 MINUTE entry before the Honorable John Z. Lee: On 1/11/17, the Court denied Plaintiffs' motion to alter or amend judgment pursuant to Fed R. Civ. P. 59(e) 241 to the extent Plaintiffs requested that the class definition be modified. To the extent the motion seeks any other alterations or amendments to the judgment, the motion 241 is hereby denied in its entirety. In particular, Plaintiffs have asked the Court to amend paragraph 4(a) of the judgment 239 to add the words "and served" after the word "obtained," thereby requiring ICE officers to serve warrants before individuals are detained pursuant to those warrants and accompanying detainers. Plaintiffs have cited no authority giving rise to such a service requirement, and the Court concludes that the requested amendment is unwarranted. For these reasons, Plaintiffs' motion 241 is denied. Plaintiffs' motion is hereby disposed of in its entirety for purposes of Fed. R. App. P. 4(a)(4)(A)(iv). Mailed notice (ca, ) (Entered: 02/14/2017)

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255 MOTION by Attorney Katherine E.M. Goettel to withdraw as attorney for John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong. No party information provided (Goettel, Katherine) (Entered: 02/16/2017)
256 NOTICE of Motion by Katherine Elizabeth Goettel for presentment of motion to withdraw as attorney 255 before Honorable John Z. Lee on 2/21/2017 at 09:00 AM. (Goettel, Katherine) (Entered: 02/16/2017)
257 ATTORNEY Appearance for Defendants John Morton, Janet Napolitano, David C. Palmatier, Ricardo Wong by Kathleen Ann Connolly (Connolly, Kathleen) (Entered: 02/16/2017)
258 MINUTE entry before the Honorable John Z. Lee:Defendants' motion for leave to withdraw as counsel 255 is granted. Katherine Elizabeth Goettel is granted leave to withdraw as counsel. No appearance is required on the motion.Mailed notice (ca, ) (Entered: 02/17/2017)
259 MAIL RETURNED, for document # 254 sent to Julien Morena Garcon returned as undeliverable, return to sender. No new contact information received; however the document will be mailed a second time. (eaa, ) (Entered: 03/01/2017)