458 F.Supp.3d 224
S.D.N.Y.2020Background
- Plaintiffs (Velesaca and Uzategui) allege ICE’s New York Field Office adopted a de facto “No-Release Policy” beginning in mid‑2017 that denies bond or release to almost all aliens subject to discretionary custody determinations under 8 U.S.C. § 1226(a).
- Empirical analysis (Hausman) of ICE data shows releases on bond/recognizance fell from ~30–40% (2013–2014) to ~1–2% (2018–2019), supporting Plaintiffs’ claim of an abrupt change in practice.
- Plaintiffs submitted medical and public‑health expert declarations (including COVID‑19 risk analysis) arguing detention greatly increases detainees’ health risks and that ICE facilities are ill‑prepared for outbreaks.
- Defendants (ICE) deny any categorical No‑Release Policy; Deputy Field Director Joyce submitted a declaration that ICE continues individualized custody reviews and considers flight risk and dangerousness.
- The court found Plaintiffs likely to prove the existence of the No‑Release Policy, concluded Plaintiffs face irreparable harm (including COVID‑19 risks), and granted a preliminary injunction: enjoining ICE from applying practices more stringent than those used prior to June 6, 2017, and requiring individualized custody determinations (with limited carve‑outs for cases already heard by an immigration judge).
- The court declined to grant relief under the Rehabilitation Act because plaintiffs produced no evidence ICE systematically ignored disabilities or that law required giving disabilities particular weight in custody decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a No‑Release Policy / APA/Accardi challenge | ICE instituted a de facto blanket policy (shown by data) that subverts individualized determinations required by §1226(a) and agency regulations | No such categorical policy exists; ICE conducts individualized reviews and data reflect case mix and supervisory discretion | Court: Plaintiffs likely to succeed on showing a No‑Release Policy based on striking data; APA/Accardi claims proceed and injunctive relief warranted |
| Irreparable harm / preliminary injunction standard (including COVID‑19) | Liberty deprivation and heightened COVID‑19 risk in detention cause imminent, irreparable harm; balance of equities and public interest favor injunction | Harm is generic to detention and detainees can seek IJ review of custody determinations | Court: Liberty deprivation is irreparable; COVID‑19 risk amplifies harm; equities and public interest favor injunction |
| Final agency action / APA reviewability and exhaustion | Policy and its effects constitute reviewable final agency action; IJ/BIA review is not an adequate remedy for classwide, pre‑detention policy harms | No discrete final action or writing to review; administrative remedies (IJ/BIA) available and APA may not apply | Court: Finality can be inferred from agency conduct and effects; exhaustion and adequacy arguments do not preclude relief here |
| Rehabilitation Act claim | ICE fails to account for detainees’ disabilities in custody decisions, requiring reasonable modifications | ICE considers disability in custody decisions; plaintiffs offered no evidence it is being ignored or given insufficient weight | Court: No record evidence ICE systematically disregards disability; no Rehabilitation Act relief ordered now |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (establishes preliminary injunction standard)
- I.N.S. v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183 (individualized determinations required under INA language)
- Reno v. Flores, 507 U.S. 292 (limits on scope of individualized‑determination requirement)
- Demore v. Kim, 538 U.S. 510 (recognition of detention during removal proceedings)
- Nielsen v. Preap, 139 S. Ct. 954 (§1226(a) provides discretion to detain or release)
- Bennett v. Spear, 520 U.S. 154 (final agency action test for APA review)
- F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (agency must give reasoned explanation when changing policy)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (administrative agencies must follow their own rules)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (§1252(f)(1) limits classwide injunctive relief against INA provisions)