319 F. Supp. 3d 110
D.C. Cir.2018Background
- Three plaintiffs (POE asylum seekers) passed credible-fear interviews and were detained under 8 U.S.C. § 1225(b); they allege repeated denials of parole and absence of bond hearings.
- Plaintiffs contend ICE applied an unwritten, nationwide "deterrence" policy contrary to ICE Directive No. 11002.1 (the Morton Directive), causing denials of parole that the Directive would otherwise permit.
- Plaintiffs seek (inter alia) preliminary injunctive relief ordering bond hearings before immigration judges and requiring ICE to follow the Morton Directive (and to stop using deterrence as a parole factor).
- Defendants moved to transfer venue to the Southern District of Texas and argued plaintiffs must proceed via habeas and that parole decisions are unreviewable discretionary acts.
- The court denied transfer, allowed plaintiffs to supplement their preliminary-injunction application and exhibits, and granted in part the preliminary injunction: it ordered ICE to re-evaluate Mikailu J. (and Aracely R. if her parole is revoked) for parole consistent with the Morton Directive and without considering deterrence, within two weeks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue transfer under 28 U.S.C. § 1404(a) | Case challenges a national policy promulgated from D.C.; D.C. is appropriate forum | Most operative events and plaintiffs are in Texas; move to transfer for convenience | Denied: factors (private & public) slightly favor keeping venue in D.C. because policy allegedly emanated from D.C. HQ |
| Motion to supplement preliminary-injunction prayer and exhibits | Supplement clarifies and broadens relief (bond hearing alternative wording) and updates evidence; no prejudice | Supplement improper procedural device; seeks ultimate/habeas relief | Granted: court exercised inherent discretion to permit supplementation and exhibit updates |
| Right to bond hearings before immigration judges for § 1225 detainees | Plaintiffs claim constitutional due-process right to bond hearings | Defendants say statute and regulations preclude IJ custody redeterminations for arriving aliens; Jennings limits reading remedies into statute | Denied as to bond hearings: plaintiffs unlikely to succeed—Jennings, Mezei, Demore line counsels against implying a bond-hearing right for arriving aliens detained under § 1225(b) |
| APA challenge: ICE's alleged unwritten deterrence policy vs. Morton Directive | Policy is a final, reviewable agency action that contradicts and circumvents the Morton Directive; therefore arbitrary & capricious; plaintiffs likely to succeed and suffer irreparable harm | Parole decisions are discretionary and unreviewable under 8 U.S.C. § 1252; no final agency action; Morton Directive nonbinding | Granted in part: court found (on the preliminary-injunction record) plaintiffs likely to show ICE considered deterrence in parole denials in violation of the Morton Directive, meriting re-evaluation of specified parole determinations without considering deterrence |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (preliminary injunction standard requires likelihood of success, irreparable harm, balance of equities, and public interest)
- Zadvydas v. Davis, 533 U.S. 678 (limits on post-removal detention; due-process-based custody review where detention may be indefinite)
- Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (constitutional treatment of aliens denied admission at the border)
- Jennings v. Rodriguez, 138 S. Ct. 830 (courts may not read a six-month bond-hearing limit into § 1225; scope of judicial avoidance)
- U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (agency must follow its own rules/procedures)
- Morton v. Ruiz, 415 U.S. 199 (agency's failure to follow binding internal procedures can be arbitrary and capricious)
- Demore v. Kim, 538 U.S. 510 (upholding brief mandatory detention under § 1226(c) and emphasizing detention brevity)