Devitri v. Cronen
289 F. Supp. 3d 287
D.D.C.2018Background
- Fifty Indonesian Christian nationals resided in New Hampshire under ICE's "Operation Indonesian Surrender," were placed on Orders of Supervision (OSUPs), and complied for years while subject to final removal orders.
- ICE terminated the program in 2017 and gave participants a "thirty-thirty" notice requiring departure within 60 days, prompting petitions to file motions to reopen based on changed country conditions (fear of persecution/torture in Indonesia).
- Petitioners sought preliminary injunctive relief to stay removals so they could obtain A-files, prepare and file motions to reopen and seek stays from the BIA and First Circuit before removal.
- BIA practice: non-detained aliens are ineligible for the BIA’s emergency stay procedures; non-emergency stay requests are often not decided until the motion to reopen itself is adjudicated, and denials of stays are not separately appealable until a final administrative order exists.
- Petitioners submitted country-condition evidence (expert affidavit and Indonesian press coverage) alleging heightened anti-Christian violence and lack of state protection; no individualized affidavits for each petitioner were provided.
- The district court found it likely Petitioners would be removed before the BIA and courts could adjudicate stays/motions to reopen and entered a preliminary injunction staying removals with conditions (A-file production, 90 days to file motions, stay continues until 7 business days after BIA ruling, with First Circuit timing rules).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas/judicial access is available despite 8 U.S.C. §1252(g) | Motion-to-reopen process is not an adequate substitute for habeas where petitioners face persecution before BIA/Court can rule; Suspension Clause and due process require pre-removal review | §1252(g) and the administrative motion-to-reopen plus appellate review provide adequate alternative; courts lack jurisdiction | Court held §1252(g) as applied here violates Suspension Clause; habeas and federal-question jurisdiction exist for these petitioners |
| Whether BIA procedures provide adequate process for non-detained aliens facing imminent removal | BIA non-emergency stay procedures are inadequate because they typically do not decide stays before removal | Government says administrative process plus appeals to circuit courts suffice and should operate per Congress' design | Court found BIA procedures inadequate for these facts and likely to result in removal before adjudication; preliminary injunction warranted |
| Whether petitioners demonstrated likelihood of irreparable harm | Removal would expose petitioners to likely persecution/torture and post-removal relief may not restore status or permit return—thus irreparable harm | Government contends petitioners' fears are speculative and that post-removal reopening and appellate review are sufficient remedies | Court found petitioners presented sufficient credible evidence of irreparable harm (non-frivolous reopening claims and realistic inability to return) |
| Whether balance of equities and public interest favor injunctive relief | Public interest and equities favor preventing wrongful removal to persecution and preserving process; brief delay acceptable | Government insists public interest favors prompt execution of removal orders and adherence to statutory scheme | Court held equities and public interest tip toward petitioners; injunction permits use of administrative and judicial processes without upsetting Congress' intent |
Key Cases Cited
- I.N.S. v. St. Cyr, 533 U.S. 289 (discusses adequacy of substitutes for habeas and availability of judicial review)
- Swain v. Pressley, 430 U.S. 372 (indicates adequate collateral remedies may replace habeas)
- Perez Santana v. Holder, 731 F.3d 50 (1st Cir.) (recognizes post-removal motion to reopen and appellate path)
- Gando-Coello v. I.N.S., 857 F.2d 25 (1st Cir.) (court of appeals jurisdiction attaches only after final administrative order; stay denials not immediately reviewable)
- Nken v. Holder, 556 U.S. 418 (stay of removal standard; removal alone not necessarily irreparable harm)
- Dada v. Mukasey, 554 U.S. 1 (statutory right to file motion to reopen is codified; motion to reopen is an important safeguard)
- Zadvydas v. Davis, 533 U.S. 678 (Due Process protections apply to aliens; nature of protection varies by circumstance)
- Goldberg v. Kelly, 397 U.S. 254 (some entitlements require pre-deprivation hearing)
- Kucana v. Holder, 558 U.S. 233 (motion to reopen as an important safeguard in immigration proceedings)