280 F. Supp. 3d 373
W.D.N.Y.2017Background
- Two asylum-seekers (Abdi and Barrios Ramos) and a putative class of arriving aliens were detained at the Buffalo Federal Detention Facility after passing credible-fear interviews and were held months (often >6 months) without parole or individualized bond hearings.
- ICE has a 2009 internal Parole Directive (ICE Directive No. 11002.1) that prescribes procedural safeguards (written notice in a language the alien understands, parole interview timing, written explanations of denials, opportunity to seek redetermination).
- Petitioners sued via habeas and for declaratory/injunctive relief, alleging (1) failure to follow the ICE Directive in parole adjudications and (2) denial of bond hearings after six months’ detention in violation of statute and due process. They sought class relief and a preliminary injunction.
- Government moved to dismiss for lack of jurisdiction and failure to state a claim, and argued the ICE Directive is nonbinding and that discretionary parole decisions are unreviewable; it also argued releases of the named plaintiffs mooted the case.
- The court denied the motion to dismiss, held it had jurisdiction to review procedural compliance (not the ultimate discretionary parole decisions), found Petitioners plausibly alleged Accardi-type violations and that §1225(b) detentions require a six-month bond-hearing limitation, and granted a preliminary injunction requiring compliance with the ICE Directive and bond hearings after six months using a clear-and-convincing standard to continue detention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review parole procedures | Challenge is to procedures (failure to follow ICE Directive), not to the ultimate discretionary parole decision; thus habeas review is proper | Parole decisions are discretionary under §1182(d)(5)(A) and §1252(a)(2)(B)(ii) bars review of such decisions and their process | Court has jurisdiction to review procedural compliance with ICE Directive; §1252(a)(2)(B)(ii) does not bar challenges to the scope of authority or failures to follow binding procedures |
| Enforceability of ICE Directive (Accardi claim) | ICE Directive affects individual rights and thus agencies must follow their own procedures; petitioners may enforce it under Accardi/Montilla | The Directive is an internal, nonbinding memo that disclaims creating enforceable rights, so failures to follow it are not judicially remediable | Directive is enforceable here under the Accardi line because it affects detainees’ rights and ICE previously represented it was in effect; petitioners stated a plausible claim |
| Right to bond hearing after prolonged §1225(b) detention | By analogy to Lora and Rodriguez, §1225(b) must be read to avoid serious constitutional concerns and requires an individualized bond hearing after six months; government must prove by clear and convincing evidence risk of flight or danger to continue detention | Arriving aliens at the border have diminished constitutional protections; Lora (which addressed §1226(c)) and Ninth Circuit precedents are inapplicable; no statutory time limit in §1225(b) | In Second Circuit law, prolonged detention under §1225(b) cannot be indefinite; court applies a six-month temporal limit and requires individualized bond hearings after six months with clear-and-convincing proof to continue detention |
| Mootness / class justiciability | Named plaintiffs’ release does not moot claims because government can revoke parole at will (voluntary cessation) and the class is inherently transitory; class claims survive | Release of named plaintiffs moots individual habeas claims and undermines adequacy of representation | Voluntary cessation and inherently transitory exceptions apply; individual releases do not moot the action and class relief may proceed pending certification |
Key Cases Cited
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (Sup. Ct.) (agencies must follow their own procedures where individual rights are affected)
- Zadvydas v. Davis, 533 U.S. 678 (Sup. Ct.) (limits on judicial review; distinction between discretionary action and scope of statutory authority)
- Montilla v. I.N.S., 926 F.2d 162 (2d Cir.) (Accardi doctrine applies to internal procedures affecting individuals)
- Lora v. Shanahan, 804 F.3d 601 (2d Cir.) (§1226(c) detention requires bond hearing after six months; clear-and-convincing standard)
- Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir.) (interpreting prolonged §1225(b) detention; constitutional-avoidance construction and six-month rule)
- Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir.) (distinguishing jurisdictional bar where agency failed to follow mandatory procedures)
- Demore v. Kim, 538 U.S. 510 (Sup. Ct.) (mandatory detention in immigration context is permissible but does not foreclose scrutiny of prolonged detention)