This is a case about the indefinite detention of immigrants pending their removal proceedings by U.S. Immigration and Customs Enforcement (“ICE”). On November 15, 2018, a 43-year-old New York resident who had been arrested and detained in a New York detention center filed this class action lawsuit in the U.S. District Court for the Southern District of New York. The plaintiff, a husband and father of two, sued the U.S. government, including the U.S. Department of Homeland Security and the U.S. Department of Justice under 28 U.S.C. § 2241. Represented by the Bronx Defenders, the New York Civil Liberties Union, the Cardozo Immigration Justice Clinic, and Make the Road New York, the plaintiff sought declaratory and injunctive relief for the class of plaintiffs who had been arrested and detained by ICE without probable cause and without a date of hearing. The plaintiff claimed that the U.S. government’s “practice of failing to provide first appearances before a judge for nearly three months after an arrest” violated the Fourth and Fifth Amendments, as well as the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 551 et seq.).

The plaintiff filed a motion for preliminary injunctive relief and preliminary declaratory relief on December 5, 2018. District Judge Alison J. Nathan denied the plaintiff’s motion for preliminary injunctive relief for lack of jurisdiction under 8 U.S.C. § 1252(f)(1), which prohibits any court (other than the Supreme Court) from enjoining or restraining the operations of 8 U.S.C. § 1229 on a class-wide basis. Section 1229, in turn, “prescribes a floor but no ceiling with respect to the timing of initial master calendar hearings.” Since the plaintiff asked the Court to impose a ceiling, Judge Nathan concluded that granting relief would impermissibly restrain § 1229's operations.

Judge Nathan also denied plaintiff’s motion for preliminary declaratory relief, concluding that no such relief existed. In response, the plaintiff and the defendants filed cross-motions for summary judgment on November 1, 2019. 2019 WL 4784950.

Judge Nathan granted the plaintiff’s unopposed motion for class certification, filed with the original complaint, on November 30, 2020. The Court defined the class as:

All individuals who have been, or will be, arrested by ICE’s New York Field Office and detained under Section 1226 of Title 8 of the United States Code for removal proceedings and who have not been provided an initial hearing before an immigration judge.

On the same day, Judge Nathan granted in part and denied in part both the plaintiff’s and the defendants’ motions for summary judgment. Judge Nathan granted summary judgment for the plaintiff on their procedural due process claim, finding that that the government’s practice of holding detainees for more than ten days before an initial hearing exceeded the 10-day limit established in Krimstock v. Kelly, 306 F.3d 40. But Judge Nathan granted the defendants’ motion for summary judgment on the plaintiff’s substantive due process and APA claims. Judge Nathan cited Zadvydas v. Davis, 533 U.S. 678, in which detention periods of up to six months were held to be reasonable, and concluded that the detention period at issue did not violate the plaintiff’s right to due process. Judge Nathan dismissed the plaintiff’s claim under the APA because granting relief under the APA would effectively allow the plaintiff to obtain preliminary injunctive relief, even though it had been denied pursuant to 8 U.S.C. § 1252(f). 2020 WL 7028637.

As of January 29, 2021, the defendants have filed an appeal.

Anjali Baliga - 02/07/2021


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