296 F. Supp. 3d 383
D.D.C.2017Background
- Terry Rombot, an Indonesian national with a 2008 final removal order, voluntarily surrendered to ICE in 2010 as part of "Operation Indonesian Surrender" and was placed on an Order of Supervision requiring periodic check-ins.
- In 2015 Rombot was prosecuted for failure to depart, served time, was sentenced to time served, and then was initially put on a flight but removed from the plane and released by ICE with a Release Notification promising an opportunity to "prepare for an orderly departure."
- Rombot complied with supervision; on August 1, 2017 he reported as required and was detained without advance notice, shackled, and issued a Notice of Revocation of Release citing a "significant likelihood of removal in the foreseeable future." No informal interview was recorded.
- ICE issued a Notice to Alien of File Custody Review giving Rombot until October 30, 2017 to submit materials; nevertheless, Field Office Director Cronen issued a Decision to Continue Detention on October 24, 2017, before the deadline, citing unexplained criminal arrests and labeling Rombot a "safety risk."
- Rombot petitioned for release; after evidentiary hearings the district court found ICE violated its regulations and Rombot's due process rights and granted release under his preexisting Order of Supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICE lawfully revoked Rombot’s release after the removal period | Revocation violated ICE regulations and the Release Notification; no informal interview given; detention was arbitrary | ICE contends detention was authorized under 8 U.S.C. § 1231(a)(1)(C) or (a)(6) and reviewed under 8 C.F.R. § 241.13 | Court: Revocation unlawful — ICE relied on wrong regulation, failed required procedures and interview, and ignored Release Notification |
| Whether the removal period was extended so detention under §1231(a)(1)(C) was valid | Rombot argues ICE had already placed him under supervision, so removal period was not extended | Government argues Rombot’s litigation (stays) prevented removal, extending the period | Court: §1231(a)(1)(C) inapplicable because ICE had issued Order of Supervision indicating decision not to deport before removal period expired |
| Whether ICE complied with required custody-review procedures (8 C.F.R. §241.4 / §241.13) | ICE failed to provide prompt informal interview, prematurely reviewed file, and Field Office Director lacked shown authority to revoke | ICE asserted discretion to detain and filed a Decision to Continue Detention | Court: ICE failed to follow its own regulations (premature review, no interview, reliance on inapplicable rule); procedural violations rendered detention unlawful |
| Whether detention violated Fifth Amendment due process | Due process violated because ICE broke its promise to allow orderly departure, gave no notice/hearing/interview, and acted without evidentiary support | ICE argued broad discretionary authority to detain and revoke release | Court: Due process violation; ICE’s actions deprived Rombot of the opportunity to prepare and be heard; release ordered under prior supervision terms |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (court set presumptively reasonable post-removal detention period and held due process applies to all persons in U.S.)
- Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003) (agency must follow its own regulations)
- Nelson v. I.N.S., 232 F.3d 258 (1st Cir. 2000) (agency adherence to its rules is mandatory)
- Matias v. Sessions, 871 F.3d 65 (1st Cir. 2017) (not every procedural lapse raises a constitutional violation)
- Waldron v. I.N.S., 17 F.3d 511 (2d Cir. 1994) (regulations protecting fundamental rights must be followed or action is invalid)