United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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 ¶
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)).
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). 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."
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
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
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.
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).
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
Respondents' Motion to Dismiss
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
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.
Motion to Dismiss Pursuant to Rule 12(b)(1)
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).
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. 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).
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.
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).
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.
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
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).
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.
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") 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)).
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.
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.
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).
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.
Motion to Dismiss Pursuant to Rule 12(b)(6)
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
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).
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.
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
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).
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).
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
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.
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").
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. 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.
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.
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.