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Abdi v. Duke

United States District Court, W.D. New York

November 17, 2017

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official Capacity as Acting Administrator of the Buffalo Federal Detention Facility; and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States, Respondents.




         Petitioners Hanad Abdi and Johan Barrios Ramos (collectively, "Petitioners") came to the United States seeking asylum. The federal government has determined that they are likely to win the right to remain in the United States due to a credible fear of returning to their homelands because of a significant possibility of persecution or torture in those countries. Upon their arrival at the U.S. border, they were taken into custody, transported to the Buffalo Federal Detention Facility in Batavia, New York, and held without parole or a bond hearing for more than nine months. Petitioners seek relief on behalf of themselves individually and on behalf of the putative class members of similarly situated asylum-seekers being held in Batavia.

         Respondents moved to dismiss this lawsuit pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that the Court lacks subject matter jurisdiction over the claims and that Petitioners have failed to state a viable claim for relief. (Dkt. 27). Petitioners oppose dismissal and seek a preliminary injunction on behalf of themselves and the members of the putative class. (Dkt. 38). While acknowledging that the ultimate parole decision is a discretionary determination not subject to judicial review, Petitioners seek preliminary injunctive relief requiring procedural safeguards when adjudicating parole. Petitioners also seek preliminary injunctive relief requiring individualized bond hearings for any detention that lasts longer than six months.

         Because this Court has subject matter jurisdiction over the claims and Petitioners have, stated valid claims, the Court denies Respondents' motion to dismiss. (Dkt. 27). In addition, because irreparable harm has been established, and there is a likelihood of success with respect to the claims in this litigation, the Court grants the preliminary injunctive relief sought by Petitioners. (Dkt. 38). Respondents must comply with their internal directive concerning parole hearings-an internal directive that Respondents recently embraced before the Supreme Court, telling the Justices that it remained in full force and effect. Moreover, after six months of detention, Respondents must provide individualized bond hearings and establish by clear and convincing evidence that an asylum-seeker is a flight risk or a danger to the community to justify continued detention.

         Although the grant of preliminary injunctive relief will alter the status of the parties-it means that asylum-seekers being detained in Batavia will be afforded certain procedural protections-the relief is nonetheless warranted because to act otherwise would mean that these individuals would be detained without any appropriate process. Although the Court recognizes that the law in this area is evolving, and the legal landscape could change in the future, the continued detention of these asylum-seekers who have passed credible fear interviews, without being afforded minimal procedural protections, would result in extreme or very serious irreparable damage. As a result, for the reasons discussed further below, Petitioners' motion for a preliminary injunction (Dkt. 38) is granted.


         Petitioner Hanad Abdi ("Abdi") is a 26-year-old native of Somalia. (Dkt. 38-5 at ¶¶ 1-2). He and his family are members of a minority tribe in Somalia. (Id. at¶5). After rival tribal members killed his father, they captured Abdi and beat him. (Id. at ¶¶ 7-10). Abdi managed to escape and fled his home country in June 2016. (Id. at ¶¶ 10, 15). After an arduous journey through more than ten countries, Abdi arrived at the southern U.S. border on October 12, 2016, seeking asylum. (Id. at ¶¶ 15-17). After two weeks at a detention center in Texas, he was transferred to the Buffalo Federal Detention Facility in Batavia, New York, on or about October 26, 2016. (Id. at ¶ 18). The officer who interviewed Abdi in connection with his request for asylum determined that "[t]here is a significant possibility that the assertions underlying the applicant's claim [for asylum] could be found credible in a . . . hearing, " and asylum proceedings have been scheduled before an immigration judge. (Id. at ¶¶ 19-22, Ex. A & B). However, his requests for parole were repeatedly denied until August 16, 2017, when Abdi was released on parole after commencement of this litigation. (Dkt. 38-3 at ¶¶ 16-17; Dkt. 38-5 at ¶¶ 23-35). Abdi has subsequently been informed that his parole was revoked, but he remains out of custody. (Id. at ¶17).

         Johan Barrios Ramos ("Barrios Ramos") is a 40-year-old native and citizen of Cuba who was involved with political opposition and human rights work in his native country. (Dkt. 38-4 at ¶¶ 1, 2, 4). For 11 months, he was imprisoned in Cuba for his political activities. (Id. at ¶ 5). He fled Cuba in December 2016, and arrived in Mexico by raft. (Id. at ¶¶ 9, 10). He traveled to the U.S.-Mexico border, arriving on January 14, 2017, and sought asylum in the United States. (Id. at ¶¶ 10-11). He passed his credible fear interview (i.e., the process through which a preliminary determination is made that an asylum-seeker has a viable claim for asylum), and asylum proceedings have been scheduled. (Id. at ¶¶ 11, 17). However, his requests for parole were repeatedly denied with no explanation (id. at ¶¶ 11-15)-that is, until after commencement of this litigation, when Barrios Ramos was paroled on September 14, 2017 (Dkt. 38-3 at ¶ 18).

         In addition to Abdi and Barrios Ramos, Petitioners have submitted declarations from 23 similarly situated individuals who have all sought asylum in this country, have passed their credible fear interviews, and who were detained for many months (and in some cases over a year) at the Buffalo Federal Detention Facility without parole or a bond hearing. (See Dkt. 38-6 (Abdirashid Musa, detained since January 2017); Dkt. 38-7 (Muktar Mohamed, detained in January 2017, but released in September 2017 (Dkt. 51-1 at 6-7)); Dkt. 38-8 (Koffi Sewoul, detained since May 2017); Dkt. 38-9 (Joseph Baptiste, detained in November 2016, but released in September 2017 (Dkt. 51-1 at 7)); Dkt. 38-10 (Dieusauveur Flezinord, detained since December 2016); Dkt. 38-11 (Saikou Touray, detained in January 2017, but released in October 2017 (Dkt. 51-1 at 96-97)); Dkt. 38-12 (Salad Suraw Abdi, detained since January 2017); Dkt. 38-13 (Muhamed Ahmed Hirsi, detained since September 2016); Dkt. 38-14 (Ahmed Mohamed Ahmed, detained since January 2017); Dkt. 38-15 (Abdirahman Elmi Nor, detained since January 2017); Dkt. 38-16 (Dayron Hernandez Gutierrez, detained in February 2017, but released in September 2017 (Dkt. 51-1 at 6)); Dkt. 51-1 at 11 (Kazeem Akinpelu Azeez, detained since January 2017); id. at 19 (Mamadou Barry, detained since November 2016); id. at 29 (Abdimalik Mohamed, detained since December 2016); id. at 35 (Niang Abdou Lahad, detained since October 2016); id. at 46 (Mamadou Diallo, detained since January 2017); id. at 51 (Jacob Akwotark Baye, detained since October 2016); id. at 59 (Ismail Noor Mohamed, detained since September 2016); id. at 70 (Yacob Abraham Weldegiorgis, detained since June 2017); id. at 86 (Denel Thomas, detained since December 2016); id. at 117 (Abraham Hagos Gashne, detained since June 2017); id. at 124 (Abraham Zerom Weldemikael, detained since June 2017); id. at 131 (Bereket Araya Ghidewon, detained since October 2016)).

         These asylum-seekers are detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii). An individual detained under § 1225(b) can be paroled "into the United States temporarily" by the Attorney General "in his discretion." 8 U.S.C. § 1182(d)(5)(A). A 2009 directive issued by Immigration and Customs Enforcement ("ICE") ("the ICE Directive" or "the Directive") sets forth certain procedures that must be utilized when evaluating parole requests. (Dkt. 38-3 at 8-17); ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009).[1] While the Directive makes it clear that parole determinations are inherently discretionary decisions, certain minimum procedural safeguards are required when making these discretionary determinations. For instance, the asylum-seeker must be provided written notice of the parole process in a language that he or she understands, ICE Directive No. 11002.1, ¶¶ 6.1, 8.1, and parole interviews must normally be conducted within seven days of a credible fear finding, id. at ¶ 8.2. Moreover, parole decisions must be uniformly documented, id. at ¶ 6.2, written notification of the parole decision must be provided, id. at ¶ 6.5, and a "brief explanation of the reasons for any decision to deny parole" must be provided, id. Additionally, the asylum-seeker must be advised of the right to request a redetermination of the decision "based upon changed circumstances or additional evidence." Id.

         Earlier this year, Respondents represented to the United States Supreme Court that the ICE Directive "remains in full force and effect." See Supplemental Reply Brief for Petitioners, at 6 n.2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017). Nonetheless, according to Petitioners, the ICE Directive is being consistently disregarded and ignored at the Buffalo Federal Detention Facility in Batavia. Moreover, although the Second Circuit and other courts have recognized the right to a bond hearing after detention in certain immigration contexts that last longer than six months (including in the case of aliens with criminal records detained under 8 U.S.C. § 1226), in this case none of the asylum-seekers have been granted a bond hearing.

         On July 28, 2017, Petitioners filed a petition for a writ of habeas corpus. (Dkt. 1). Petitioners filed an amended petition on August 21, 2017, as well as a complaint for declaratory and injunctive relief. (Dkt. 17). In the amended petition, Petitioners raise class action allegations and assert that Respondents have violated and continue to violate the statutory and constitutional rights of Petitioners and the members of the putative class. (Id. at 23-24). Petitioners allege that Respondents maintain a practice of denying parole to asylum-seekers detained at the Buffalo Federal Detention Facility who have passed a credible fear interview. (Id. at 1-2). Petitioners also allege that a subclass of similarly situated asylum-seekers have been or will be detained for more than six months without a bond hearing before an immigration judge. (Id. at 3).

         On August 25, 2017, Petitioners moved to certify the class. (Dkt. 19). On September 12, 2017, Respondents moved to dismiss for lack of jurisdiction and failure to state a claim. (Dkt. 27). On September 25, 2017, Petitioners filed a motion for a preliminary injunction. (Dkt. 38). After briefing on the motion to dismiss (Dkt. 48; Dkt. 49), and the preliminary injunction motion (Dkt. 50; Dkt. 51), oral argument was held before the undersigned on October 27, 2017, at which time the Court reserved decision.


         Petitioners contend that the parole practices at the Buffalo Federal Detention Facility have changed significantly since President Trump came into office. Petitioners offer various statistics supporting their contentions (Dkt. 38-17), as well as testimony from detained asylum-seekers that they have been told by immigration officials that the Trump administration has eliminated parole (see, e.g., Dkt. 38-5 at ¶ 36; Dkt. 38-6 at ¶ 3; Dkt. 38-13 at ¶ 5; Dkt. 38-14 at ¶ 2). While acknowledging "changes in general enforcement objectives under the Trump Administration" (Dkt. 50-1 at ¶ 4), Respondents contest that the change in administration has caused any alteration of policy (Dkt. 50-2 at ¶ 2).

         This Court cannot determine based on the written record the reasons for any alteration in the parole practices in Batavia. However, the motivations behind the failure to follow the ICE Directive at the Buffalo Federal Detention Facility or to provide bond hearings after six months of detention-while perhaps politically meaningful-are not legally significant. What is important to this Court's analysis is the fact that the Directive is being violated and that asylum-seekers are being held for longer than six months without individualized bond hearings. Respondents do not, and cannot, ultimately contend that they are adhering to the dictates of the ICE Directive or providing bond hearings after six months of detention. Instead, they take the position that the ICE Directive is not legally enforceable and that bond hearings are not required. Because the Court disagrees on both counts, the motions before the Court can be resolved on the papers. Respondent's motion to dismiss is denied, and Petitioners' preliminary injunction motion is granted.

         I. Respondents' Motion to Dismiss

         Respondents seek dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that this Court lacks subject matter jurisdiction to consider Petitioners' parole claims, and under Rule 12(b)(6), contending that Petitioners have failed to state a valid claim for habeas corpus relief. In addition, Respondents contend that the release from custody of both Abdi and Barrios Ramos renders moot any claims asserted in this litigation.

         Because Petitioners do not challenge the ultimate decision to deny parole, but rather challenge the procedures employed when evaluating a parole request, this Court has subject matter jurisdiction to consider the parole claims. Moreover, Petitioners have stated valid claims challenging both the failure to follow the ICE Directive in connection with parole decisions, and the failure to grant a bond hearing to those individuals detained longer than six months pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3562 (U.S. Mar. 25, 2016) (No. 15-1205), cross-petition for cert. denied, 136 S.Ct. 2494 (2016). Finally, the release of Abdi and Barrios Ramos from custody does not render their claims moot because, at any time, those decisions could be reversed at Respondents' discretion.

         A. Motion to Dismiss Pursuant to Rule 12(b)(1)

         Respondents argue that this Court lacks jurisdiction to consider Petitioners' claims regarding the denial of temporary parole. (Dkt. 27-1 at 14). Federal courts are courts of limited jurisdiction and possess only that power authorized by Article III of the United States Constitution and statutes enacted by Congress pursuant thereto. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The party asserting jurisdiction bears the burden of establishing that a court has jurisdiction over a particular claim. Id. When a movant challenges subject matter jurisdiction, a district court may "consider affidavits and other materials beyond the pleadings" and "weigh the evidence and satisfy itself as to the existence of its power to hear the case." Iqbal v. Sec'y, U.S. Dep't of Homeland Sec, 190 F.Supp.3d 322, 326-27 (W.D.N.Y. 2016) (citations omitted). However, the court "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Hadees v. Johnson, 5:15-CV-1087, 2016 WL 5349789, at * 1 (N.D.N.Y. Sept. 23, 2016) (citations omitted).

         Petitioners were detained pursuant to 8 U.S.C. § 1225(b). That statute provides that if a non-citizen "who is arriving in the United States" indicates an intention to apply for asylum or expresses a fear of persecution or torture, the individual is referred for an interview to determine whether he or she has a credible fear of persecution.[2] 8 U.S.C. § 1225(b)(1)(A)(ii). If the individual is determined to have a credible fear of persecution, he "shall be detained for further consideration of the application for asylum." Id. § 1225(b)(1)(B)(ii).

         An individual detained under § 1225(b) can be paroled "into the United States temporarily" by the Attorney General "in his discretion." Tic/. §1182(d)(5)(A). Agency regulations provide that the Secretary of Homeland Security "may invoke" the authority to parole an individual who is "neither a security risk nor a risk of absconding" and meets one or more of a series of conditions, one of which is that "continued detention is not in the public interest." 8 C.F.R. § 212.5(a), (b)(5). The ICE Directive explains how the term "public interest" is to be interpreted. See ICE Directive No. 11002.1. The Directive provides that "[e]ach alien's eligibility for parole should be considered and analyzed on its own merits and based on the facts of the individual alien's case." Id. at ¶ 6.2. When an arriving alien found to have a credible fear establishes to the satisfaction of ICE his or her identity and that he or she presents neither a flight risk nor a danger to the community, "[ICE] should, absent additional factors . . . parole the alien on the basis that his or her continued detention is not in the public interest." Id.

         Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), "no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, " with the exception of determinations regarding eligibility to apply for asylum under 8 U.S.C. § 1158(a). The Second Circuit has construed the phrase "this subchapter" in § 1252(a)(2)(B)(ii) to mean "subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-1381." Sanusi v. Gonzales, 445F.3d 193, 198 (2d Cir. 2006). The temporary parole sought by Petitioners is governed by § 1182(d)(5)(A), and therefore is subject to the jurisdictional restrictions of § 1252(a)(2)(B)(ii). In other words, parole decisions are at the discretion of the Attorney General and the Secretary of Homeland Security; thus, discretionary decisions regarding parole under § 1182(d)(5)(A) are not reviewable by a court, pursuant to § 1252(a)(2)(B)(ii). See, e.g., Viknesrajah v. Koson, No. 09-CV-6442 CJS, 2011 WL 147901, at *2 (W.D.N.Y. Jan. 18, 2011).

         Petitioners acknowledge that the Attorney General's discretionary decisions to deny parole are not subject to judicial review. (Dkt. 48 at 15). However, Petitioners contend that their challenge rests on the procedures employed by Respondents in administering the parole process-not on the ultimate decision to grant or deny parole. (Id.). Respondents counter that Petitioners' attempt to repackage the true nature of their claims is a distinction without a difference. (Dkt. 49 at 7). Respondents contend that under Giammarco v. Kerlikowske, 665 Fed.Appx. 24 (2d Cir. 2016), Petitioners' challenge is not reviewable. Respondents assert that Giammarco stands for the proposition that the process by which ICE reaches its decisions is itself discretionary and therefore unreviewable.

         In Giammarco, the petitioner, who had been removed from the United States as an aggravated felon, filed a petition for a writ of habeas corpus ad testificandum seeking reentry to comply with a legislative subpoena. Id. at 25. The Second Circuit concluded that it lacked subject matter jurisdiction under § 1252(a)(2)(B)(ii) because the habeas petition was an indirect challenge to discretionary decisions by the respondents denying parole, a visa waiver, and a visitor visa. Id. The court explained that it lacked jurisdiction because "a decision in [the petitioner's] favor would render the prior discretionary denials invalid." Id. at 26.

         Giammarco is distinguishable from the facts of this case because Petitioners are not challenging the discretionary decision itself. A decision in favor of Petitioners would not compel a particular result with respect to parole, but rather would impact only the execution of the policies and procedures surrounding the ultimate parole decision. Petitioners are not asking this Court to interfere with the ultimate decision regarding parole-that issue would plainly fall outside this Court's jurisdiction pursuant to § 1252(a)(2)(B)(ii). However, Petitioners are asking that this Court ensure that Respondents comply with certain policies and procedures in making that parole decision-issues that are beyond the jurisdictional bar of § 1252(a)(2)(B)(ii).

         Indeed, courts have held that the jurisdictional bar in § 1252(a)(2)(B)(ii) is narrow. In Zadvydas v. Davis, 533 U.S. 678 (2001), the habeas petitioner challenged the Attorney General's authority, under the post-removal-period statute, 8 U.S.C. § 1231(a)(6), to detain a removable alien indefinitely beyond the removal period. Id. at 682. The Court recognized that § 1252(a)(2)(B)(ii) bars review of discretionary decisions under the post-removal-period statute-including the decision to detain an alien ordered removed beyond the removal period-but held that the petitioners were not seeking review of the Attorney General's exercise of discretion; "rather, they challenge[d] the extent of the Attorney General's authority under the post-removal-period detention statute." Id. at 688. The Court concluded that "the extent of that authority is not a matter of discretion." Id.

         The Second Circuit considered the limits of the jurisdictional bar in Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008). In that case, the plaintiff argued that Immigration and Naturalization Service ("INS")[3] had attempted to rescind her status as a Lawful Permanent Resident ("LPR") "without following the mandatory statutory and regulatory procedures governing the rescission of that status. Id. at 81. INS moved to dismiss the complaint for lack of subject matter jurisdiction, and the district court granted the motion on the basis that § 1252(a)(2)(B)(ii) precluded review. Id. at 82. The Second Circuit reversed, holding that this provision did not bar the plaintiffs unlawful rescission claim because "the alleged rescission was not performed in accordance with the mandatory rescission procedures. . . . Thus, the alleged rescission was not 'specified ... to be in the discretion of the Attorney General.'" Id. at 86 (quoting Firstland Int'l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir. 2004)).

         Here, as in Zadvydas and Sharkey, Petitioners do not challenge the ultimate parole decision under § 1182(d)(5)(A). Rather, Petitioners allege that Respondents have violated and continue to violate the ICE Directive that they claim to be following. (Dkt. 17 at 2). Petitioners contend that the parole rate has dramatically dropped since January 2017 (id.); that deportation officers told them that parole was no longer available (id. at 15); and Petitioners received denial notices that did not comply with the ICE Directive (id. at 6-7, 12-15). Petitioners do not ask the Court to consider whether any decision to deny parole was improper. Instead, Petitioners seek a ruling that Respondents' failure to follow their own policy directive is unlawful. In other words, Petitioners simply seek compliance with certain minimum procedural safeguards when parole decisions are made-they do not seek to have this Court interfere with the ultimate parole decision. Section 1252(a)(2)(B)(ii) does not bar that claim.

         Respondents attempt to distinguish Zadvydas and Sharkey, arguing that the challenges in those cases were grounded in the statutory framework, as opposed to an internal memo. (Dkt. 49 at 8). Petitioners challenge the failure to follow procedures that flow from an internal directive, and Respondents contend that internal directives are not binding. (Dkt. 27-1 at 16-17). According to Respondents, because the procedures that Petitioners seek to enforce are not codified in a statute or regulation, and because the decision to grant or deny parole is discretionary, the procedures in the ICE Directive are also discretionary. Respondents argue that this fact divests this Court of jurisdiction because the case is brought under 28 U.S.C. § 2241, the habeas corpus statute, which limits the Court's habeas jurisdiction to reviewing for "statutory or constitutional errors." (Id. at 17-18); Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001).

         Respondents are correct that courts in this Circuit have held that federal jurisdiction over § 2241 petitions does not extend to "review of factual or discretionary determinations." Sol, 214 F.3d at 651. However, Respondents improperly characterize Petitioners' claims. Although Petitioners have alleged facts in support of their claim that the Buffalo Federal Detention Facility is failing to abide by the ICE Directive, Petitioners ultimately contend that this failure violated their rights under 8 U.S.C. § 1182(d)(5)(A), 8 C.F.R. § 212.5, and the "Accardi doctrine" (as discussed below).

         For the reasons explained below in the analysis of Respondents' motion to dismiss pursuant to Rule 12(b)(6), the Court concludes that Petitioners have asserted questions of law, and that Petitioners' claims therefore fall within this Court's habeas jurisdiction. Accordingly, Respondents' motion to dismiss Petitioners' parole claims under Rule 12(b)(1) is denied.

         B. Motion to Dismiss Pursuant to Rule 12(b)(6)

         1. Parole Claims

         In addition to their jurisdictional challenge, Respondents assert that even if Petitioners' parole claims are not precluded by § 1252(a)(2)(B)(ii), those claims are meritless. A court should consider a Rule 12(b)(6) motion to dismiss for failure to state a claim "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). The Court "may only consider facts stated in the complaint or documents attached to the complaint." Spikes Bell v. Cont'l Sch. Of Beauty, 11 F.Supp.3d 403, 406 (W.D.N.Y. 2014). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("The plausibility standard is not akin to a probability requirement. . . . [A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely." (citations, alterations, and internal quotation marks omitted)).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration and citations omitted). Thus, "at a bare minimum, the operative standard requires the 'plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (alteration and citations omitted).

         Respondents argue that Petitioners fail to state a claim for relief because the ICE Directive is not binding, and any failure to follow its terms is not subject to legal challenge. (Dkt. 49 at 8-9). Respondents contend that the ICE Directive does not create any rights, privileges, or benefits enforceable against the United States. (Id. at 8). According to Respondents, Petitioners received the process that they are due and cannot assert otherwise on the basis of a failure to comply with the terms of an internal directive.

         Petitioners respond that the "Accardi doctrine" dictates that Respondents are bound by the ICE Directive and the procedural steps and substantive criteria that it sets out. (Dkt. 48 at 20-21). In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), the Supreme Court held that "regulations with the force and effect of law supplement the bare bones" of federal statutes. Id. at 265. In that case, the Court vacated a deportation order on the ground that the procedure that preceded the order did not conform to the relevant regulations. Id. at 267-68; see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (striking down a Bureau of Indian Affairs determination that did not comply with procedures set forth in the agency's manual). The Second Circuit later held, in Smith v. Resor, 406 F.2d 141 (2d Cir. 1969), that the Accardi rationale applies even when a court is reviewing "the merits of decisions made within the area of discretion delegated to administrative agencies." Id. at 145. The court explained that courts "have insisted that where the agencies have laid down their own procedures and regulations, those procedures and regulations cannot be ignored by the agencies themselves even where discretionary decisions are involved." Id.

         In Montilla v. I.N.S., 926 F.2d 162 (2d Cir. 1991), the Second Circuit interpreted the Accardi doctrine in the immigration context and concluded that "[i]ts ambit is not limited to rules attaining the status of formal regulations." Id. at 167. The court explained that '"[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required, ' and even though the procedural requirement has not yet been published in the federal register." Id. (quoting Morton, 415 U.S. at 235).

         Following Montilla, a district court in the Southern District of New York held that INS was required to adhere to internal directives in its Parole Project Memorandum, which listed criteria for INS district directors to apply to parole applications and established a process for evaluating detainees' claims. Zhang v. Slattery, 840 F.Supp. 292, 293-96 (S.D.N.Y. 1994). The court rejected the respondents' argument that the memorandum conferred no substantive rights on detainees and lacked the force of law, explaining that the important consideration was that the memorandum affected detainees' rights and was intended to benefit detainees seeking asylum. Id. at 294-95. The court relied on the Eleventh Circuit's decision in Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983), in which that court held that an INS internal operating instruction, while not providing the force and effect of substantive law, did confer "the procedural right to be considered for" deferred action status. Id. at 663 n.* (internal quotation marks omitted).

         Respondents cite a number of different cases that they assert are controlling. (Dkt. 27-1 at 17). The Court disagrees and concludes that these cases are distinguishable. Respondents argue that in Schweiker v. Hansen, 450 U.S. 785 (1981), the Supreme Court retreated from the broadest reading of Morton when it held, in a per curiam opinion, that an internal manual had no legal force and did not bind the Social Security Administration. Id. at 789. Schweiker addressed the circumstances under which the federal government would be estopped from insisting upon compliance with valid regulations governing the distribution of welfare benefits, and held that a government employee's "minor breach" of a claims manual's internal guidelines did not justify invocation of the estoppel doctrine. Id. at 789-90; see also Edwards v. U.S. Dep't of Agr., 584 F.Supp.2d 595, 598 (W.D.N.Y. 2008) (citing Schweiker and holding, without further explanation, that the plaintiff could not rely on agency's internal manuals in arguing that it had failed to comply with internal rules in handling his case). Neither Accardi nor Morton are cited in the Schweiker decision, and the Second Circuit has continued to follow the Accardi doctrine after Schweiker. See, e.g., Montilla, 926 F.2d at 167 (recognizing that "the cases are not uniform in requiring that every time an agency ignores its own regulation its acts must subsequently be set aside, " but holding that "[t]he doctrine has continued vitality, particularly where a petitioner's rights are 'affected'").

         Respondents also rely on Binder & Binder P.C. v. Barnhart, 481 F.3d 141 (2d Cir. 2007), where the Second Circuit held that the Social Security Administration could not rely on its own internal document to vacate an award of attorney's fees. Id. at 151. However, that case was not governed by Accardi because the "rights of individuals" were not affected by the document at issue-the agency sought to rely on the document for its own benefit. Id. at 786. See also James v. U.S. Parole Comm'n, 159 F.3d 1200 (9th Cir. 1998) (holding that the petitioner could not rely on an interpretive guideline intended to guide the Parole Commission in its calculation of release dates consistent with the Sentencing Guidelines). And in Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011), relied on by Respondents, the court held only that, in interpreting the phrase "paroled into the United States" in 8 U.S.C. § 1255(a)-the statute that identifies aliens who may seek "adjustment of status"-there was no statutory ambiguity. Id. at 200. The petitioners relied on internal agency memoranda in arguing that Congress intended the phrase "paroled into the United States" in § 1255(a) to include aliens released on "conditional parole" under § 1226(a)(2)(B). Id. The court concluded that the statute was unambiguous on that issue, rejecting the petitioners' attempt to rely on the internal documents to contradict the plain language of the statute. Id. Unlike in Cruz-Miguel, there is no statutory provision that unambiguously governs in this case. This is not a situation where a statute (or regulation) sets forth the procedures to be utilized in evaluating whether an asylum-seeker's "continued detention is not in the public interest, " 8 C.F.R. § 212.5(b)(5); rather, the ICE Directive sets forth those procedures.

         Nor do the cases that Respondents relied on most heavily at oral argument on this motion resolve the issue. Respondents argued that the court in Thevarajah v. McElroy, No. 01-cv-3009, 2002 WL 923914 (E.D.N.Y. Apr. 30, 2002), declined to hold that INS was bound by certain standards in a 1992 internal memorandum. Id. at *4-5. In reality, the court in Thevarajah did not decide whether the agency was bound to apply the standards in the memorandum; instead, the court was "satisfied that [the agency] took [the standards] into appropriate consideration." Id. at *5. The court "rejected] [the] petitioner's argument that the District Director failed to apply the proper legal standard in denying . . . parole." Id. Similarly, in Naul v. Gonzales, No. 05-4627 (JAG), 2007 WL 1217987 (D.N.J. Apr. 23, 2007), another case cited by Respondents, the court found that the respondents had comported with the guidelines of an internal parole memorandum. Id. at *3 n.8. In that case, the petitioner argued that the internal memorandum "mandate[d] his parole, " but the court concluded that it "provide[d] guidance to asylum pre-screening interviewers concerning the decision to recommend parole or not." Id. at *3. Thus, neither Thevarajah nor Naul holds that agencies cannot be bound by internal directives. See also Ferreras v. Ashcroft, 160 F.Supp.2d 617, 624 (S.D.N.Y. 2001) (stating, without explanation, that "[w]hether the INS followed through on its directive ... is not a constitutional matter generally, nor is it determinative of the statutory provision governing Petitioner's detention").

         Respondents also argue that the ICE Directive cannot create any enforceable rights because the document itself provides that it "is not intended to, shall not be construed to, may not be relied upon to, and does not create, any rights, privileges, or benefits, substantive or procedural, enforceable by any party against the United States." ICE Directive No. 11002.1, ¶ 10. Respondents cite In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006), a case that also concerned a regulation with a provision disclaiming the creation of any legally enforceable rights-in that case, Department of Justice ("DOJ") guidelines for issuing subpoenas to news media. The news media sought to set aside the finding of civil contempt on the ground that the subpoenas did not comply with the DO J regulations. Distinguishing Morton, the court explained that the regulation in that case was intended to benefit potential beneficiaries of government assistance, whereas the DOJ guidelines in Judith Miller provided no enforceable rights to individuals and were merely intended to guide the discretion of prosecutors. Id. at 1152.[4] Here, in contrast, the ICE Directive-like the procedure at issue in Morton-affects the rights of individuals. The ICE Directive does not simply guide the discretion of immigration officials in making parole determinations. Rather, it sets forth specific procedural rights for asylum-seekers in connection with the parole process, such as being informed in writing as to the reason parole was denied.

         In short, Respondents cite no case law that would compel the conclusion that agencies can avoid application of Accardi by simply disclaiming any binding effect in the directive itself. To find otherwise would render the teachings of Accardi and its progeny meaningless. It is not the internal policy itself that creates (or eliminates) the rights of enforcement. Rather, the relevancy of the internal policy is to ascertain whether it pertains to individual rights. If so, under binding Supreme Court and Second Circuit precedent, that internal policy must be followed. In the words of the Supreme Court, "[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required. . . ." Morton, 415 U.S. at 235.[5]

         Here, Respondents represented to the Supreme Court in February 2017 that the ICE Directive "remains in full force and effect." Supplemental Reply Brief for Petitioners, at 6 n.2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017). In their briefing submitted in Jennings, Respondents touted the ICE Directive as a reason for their position that bond hearings are not required for asylum-seekers detained under 8 U.S.C. § 1225(b). Id. at 5-6. Respondents told the Supreme Court that "the existing framework provides more than sufficient process" and stated that the ICE Directive "provides for notice to the alien, an interview, the opportunity to respond and present evidence, a custody determination ... supervisory review, and further parole consideration based upon changed circumstances or new evidence." Id. at 6-7. Respondents cannot now contend in this Court that the ICE Directive does not affect the rights of individuals. Plainly, the ICE Directive affects the rights of individuals. As a result, Petitioners' contention that Respondents have failed to comply with the procedures set forth in the ICE Directive when making discretionary decisions concerning parole states a valid claim for habeas corpus relief.

         2. Bond ...

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