`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 1 of 68
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`, 5333132554“ ' UNITED STATES DISTRICT COURT
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`WESTERN DISTRICT OF NEW YORK
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`HANAD ABDI and J OHAN BARRIOS RAMOS,
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`DECISION AND ORDER
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`Petitioners,
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`v.
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`1:17-CV-0721 EAW
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`ELAINE DUKE, in her official capacity as
`Acting Secretary of US. 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
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`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.
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`INTRODUCTION
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`Petitioners Hanad Abdi and Johan Barrios Ramos (collectively, “Petitioners”) came
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`to the United States seeking asylum. The federal government has determined that they are
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`likely to win the right to remain in the United States due to a credible fear of returning to
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`their homelands because of a significant possibility of persecution or torture in those
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`countries. Upon their arrival at the US. border, they were taken into custody, transported
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`to the Buffalo Federal Detention Facility in Batavia, New York, and held without parole
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`or a bond hearing for more than nine months. Petitioners seek relief on behalf of
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`themselves individually and on behalf of the putative class members of similarly situated
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`asylum-seekers being held in Batavia.
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`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 2 of 68
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`Respondents moved to dismiss this lawsuit pursuant to Federal Rules of Civil
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`Procedure 12(b)(1) and 12(b)(6), contending that the Court lacks subject matter jurisdiction
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`over the claims and that Petitioners have failed to state a Viable claim for relief. (Dkt. 27).
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`Petitioners oppose dismissal and seek a preliminary injunction on behalf of themselves and
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`the members of the putative class. (Dkt. 38). While acknowledging that the ultimate parole
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`decision is a discretionary determination not subject to judicial review, Petitioners seek
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`preliminary injunctive relief requiring procedural safeguards when adjudicating parole.
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`Petitioners also seek preliminary injunctive relief requiring individualized bond hearings
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`for any detention that lasts longer than six months.
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`Because this Court has subject matter jurisdiction over the claims and Petitioners
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`have. stated valid claims, the Court denies Respondents’ motion to dismiss. (Dkt. 27). In
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`addition, because irreparable harm has been established, and there is a likelihood of success
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`with respect to the claims in this litigation, the Court grants the preliminary injunctive relief
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`sought by Petitioners.
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`(Dkt. 38). Respondents must comply with their internal directive
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`concerning parole hearings—an internal directive that Respondents recently embraced
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`before the Supreme Court, telling the Justices that it remained in full force and effect.
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`Moreover, after six months of detention, Respondents must provide individualized bond
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`hearings and establish by clear and convincing evidence that an asylum-seeker is a flight
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`risk or a danger to the community to justify continued detention.
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`Although the grant of preliminary injunctive relief will alter the status of the
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`parties—it means that asylum-seekers being detained in Batavia will be afforded certain
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`procedural protections—the relief is nonetheless warranted because to act otherwise would
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`mean that these individuals would be detained without any appropriate process. Although
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`the Court recognizes that the law in this area is evolving, and the legal landscape could
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`change in the future, the continued detention of these asylum-seekers who have passed
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`credible fear interviews, without being afforded minimal procedural protections, would
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`result in extreme or very serious irreparable damage. As a result, for the reasons discussed
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`further below, Petitioners’ motion for a preliminary injunction (Dkt. 38) is granted.
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`FACTUAL BACKGROUND
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`Petitioner Hanad Abdi (“Abdi”) is a 26-year-old native of Somalia.
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`(Dkt. 38-5 at
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`1111 1-2). He and his family are members of a minority tribe in Somalia. (Id. at 11 5). After
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`rival tribal members killed his father, they captured Abdi and beat him.
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`(Id. at 1111 7-10).
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`Abdi managed to escape and fled his home country in June 2016. (Id. at 1H] 10, 15). After
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`an arduous journey through more than ten countries, Abdi arrived at the southern US.
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`border on October 12, 2016, seeking asylum.
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`(Id. at W 15-17). After two weeks at a
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`detention center in Texas, he was transferred to the Buffalo Federal Detention Facility in
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`Batavia, New York, on or about October 26, 2016.
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`(Id. at 1] 18). The officer who
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`interviewed Abdi in connection with his request for asylum determined that “[t]here is a
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`significant possibility that the assertions underlying the applicant’s claim [for asylum]
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`could be found credible in a .
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`.
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`. hearing,” and asylum proceedings have been scheduled
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`before an immigration judge.
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`(Id. at 1111 19-22, Ex. A & B). However, his requests for
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`parole were repeatedly denied until August 16, 2017, when Abdi was released on parole
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`after commencement of this litigation. (Dkt. 38-3 at W 16-17; Dkt. 38-5 at W 23-35). Abdi
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`has subsequently been informed that his parole was revoked, but he remains out of custody.
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`(Id. at 11 17).
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`Johan Barrios Ramos (“Barrios Ramos”) is a 40-year-old native and citizen of Cuba
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`who was involved with political opposition and human rights work in his native country.
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`(Dkt. 38-4 at ll 1, 2, 4). For 11 months, he was imprisoned in Cuba for his political
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`activities. (Id. at 11 5). He fled Cuba in December 2016, and arrived in Mexico by raft. (Id.
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`at W 9, 10). He traveled to the U.S.-Mexico border, arriving on January 14, 2017, and
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`sought asylum in the United States. (Id. at W 10-11). He passed his credible fear interview
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`(i.e., the process through which a preliminary determination is made that an asylum-seeker
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`has a viable claim for asylum), and asylum proceedings have been scheduled. (Id. at W 11,
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`17). However, his requests for parole were repeatedly denied with no explanation (id. at
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`‘llfil 11—15)——that is, until after commencement of this litigation, when Barrios Ramos was
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`paroled on September 14, 2017 (Dkt. 38-3 at ‘ll 18).
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`In addition to Abdi and Barrios Ramos, Petitioners have submitted declarations
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`from 23 similarly situated individuals who have all sought asylum in this country, have
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`passed their credible fear interviews, and who were detained for many months (and in some
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`cases over a year) at the Buffalo Federal Detention Facility without parole or a bond
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`hearing.
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`(See Dkt. 38-6 (Abdirashid Musa, detained since January 2017); Dkt. 38-7
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`(Muktar Mohamed, detained in January 2017, but released in September 2017 (Dkt. 51-1
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`at 6-7)); Dkt. 38-8 (Koffi Sewoul, detained since May 2017); Dkt. 38-9 (Joseph Baptiste,
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`detained in November 2016, but released in September 2017 (Dkt. 51-1 at 7)); Dkt. 38-10
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`(Dieusauveur Flezinord, detained since December 2016); Dkt. 38-11 (Saikou Touray,
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`detained in January 2017, but released in October 2017 (Dkt. 51-1 at 96-97)); Dkt. 38-12
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`(Salad Suraw Abdi, detained since January 2017); Dkt. 38-13 (Muhamed Ahmed Hirsi,
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`detained since September 2016); Dkt. 38-14 (Ahmed Mohamed Ahmed, detained since
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`January 2017); Dkt. 38-15 (Abdirahman Elmi Nor, detained since January 2017); Dkt. 38-
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`16 (Dayron Hernandez Gutierrez, detained in February 2017, but released in September
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`2017 (Dkt. 51-1 at 6)); Dkt. 51-1 at 11 (Kazeem Akinpelu Azeez, detained since January
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`2017); id. at 19 (Mamadou Barry, detained since November 2016); id. at 29 (Abdimalik
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`Mohamed, detained since December 2016); id. at 35 (Niang Abdou Lahad, detained since
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`October 2016); id. at 46 (Mamadou Diallo, detained since January 2017); id. at 51 (Jacob
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`Akwotark Baye, detained since October 2016); id. at 59 (Ismail Noor Mohamed, detained
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`since September 2016); id. at 70 (Yacob Abraham Weldegiorgis, detained since June
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`2017); id. at 86 (Denel Thomas, detained since December 2016); id. at 117 (Abraham
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`Hagos Gashne, detained since June 2017);
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`id. at 124 (Abraham Zerom Weldemikael,
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`detained since June 2017); id. at 131 (Bereket Araya Ghidewon, detained since October
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`2016)).
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`These asylum-seekers are detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii). An
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`individual detained under § 1225(b) can be paroled “into the United States temporarily” by
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`the Attorney General “in his discretion.” 8 U.S.C. § 1182(d)(5)(A). A 2009 directive
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`issued by Immigration and Customs Enforcement (“ICE”) (“the ICE Directive” or “the
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`Directive”) sets forth certain procedures that must be utilized when evaluating parole
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`requests. (Dkt. 38—3 at 8-17); ICE Directive No. 11002.1: Parole ofArriving Aliens Found
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`to Have a Credible Fear ofPersecution 0r Torture (Dec. 8, 2009).1 While the Directive
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`makes it clear that parole determinations are inherently discretionary decisions, certain
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`minimum procedural
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`safeguards
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`are
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`required when making these discretionary
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`determinations. For instance, the asylum-seeker must be provided written notice of the
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`parole process in a language that he or she understands, ICE Directive No. 11002.1, llll 6.1,
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`8.1, and parole interviews must normally be conducted within seven days of a credible fear
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`finding, id. at ll 8.2. Moreover, parole decisions must be uniformly documented, id. at
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`11 6.2, written notification of the parole decision must be provided, id. at 1i 6.5, and a “brief
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`explanation of the reasons for any decision to deny parole” must be provided,
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`id.
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`Additionally, the asylum-seeker must be advised of the right to request a redetermination
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`of the decision “based upon changed circumstances or additional evidence.” Id.
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`Earlier this year, Respondents represented to the United States Supreme Court that
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`the ICE Directive “remains in full force and effect.” See Supplemental Reply Brief for
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`Petitioners, at 6 n.2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017).
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`Nonetheless, according to Petitioners, the ICE Directive is being consistently disregarded
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`and ignored at the Buffalo Federal Detention Facility in Batavia. Moreover, although the
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`Second Circuit and other courts have recognized the right to a bond hearing after detention
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`in certain immigration contexts that last longer than six months (including in the case of
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`The text of the ICE Directive can be found in various submissions by the parties,
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`including at Docket 38-3, pages 8-17. Throughout the remainder of this Decision, the
`Court will cite directly to the Directive: ICE Directive No. 11002.1.
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`aliens with criminal records detained under 8 U.S.C. § 1226), in this case none of the
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`asylum-seekers have been granted a bond hearing.
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`On July 28, 2017, Petitioners filed a petition for a writ of habeas corpus.
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`(Dkt. 1).
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`Petitioners filed an amended petition on August 21, 2017, as well as a complaint for
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`declaratory and injunctive relief. (Dkt. 17). In the amended petition, Petitioners raise class
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`action allegations and assert that Respondents have violated and continue to violate the
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`statutory and constitutional rights of Petitioners and the members of the putative class. (Id.
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`at 23-24). Petitioners allege that Respondents maintain a practice of denying parole to
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`asylum-seekers detained at the Buffalo Federal Detention Facility who have passed a
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`credible fear interview.
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`(Id. at 1-2). Petitioners also allege that a subclass of similarly
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`situated asylum-seekers have been or will be detained for more than six months without a
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`bond hearing before an immigration judge.
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`(1d. at 3).
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`On August 25, 2017, Petitioners moved to certify the class.
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`(Dkt. 19). On
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`September 12, 2017, Respondents moved to dismiss for lack of jurisdiction and failure to
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`state a claim.
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`(Dkt. 27). On September 25, 2017, Petitioners filed a motion for a
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`preliminary injunction.
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`(Dkt. 38). After briefing on the motion to dismiss (Dkt. 48; Dkt.
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`49), and the preliminary injunction motion (Dkt. 50; Dkt. 51), oral argument was held
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`before the undersigned on October 27, 2017, at which time the Court reserved decision.
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`DISCUSSION
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`Petitioners contend that the parole practices at the Buffalo Federal Detention
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`Facility have changed significantly since President Trump came into office. Petitioners
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`offer various statistics supporting their contentions (Dkt. 3 8-17), as well as testimony from
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`detained asylum-seekers that they have been told by immigration officials that the Trump
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`administration has eliminated parole (see, e. g., Dkt. 38-5 at 1] 36; Dkt. 38-6 at 11 3; Dkt. 38-
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`13 at 1i 5; Dkt. 38-14 at 1i 2). While acknowledging “changes in general enforcement
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`objectives under the Trump Administration” (Dkt. 50-1 at 11 4), Respondents contest that
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`the change in administration has caused any alteration of policy (Dkt. 50-2 at 11 2).
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`This Court cannot determine based on the written record the reasons for any
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`alteration in the parole practices in Batavia. However, the motivations behind the failure
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`to follow the ICE Directive at the Buffalo Federal Detention Facility or to provide bond
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`hearings after six months of detention—«while perhaps politically meaningful—are not
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`legally significant. What is important to this Court’s analysis is the fact that the Directive
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`is being violated and that asylum-seekers are being held for longer than six months without
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`individualized bond hearings. Respondents do not, and cannot, ultimately contend that
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`they are adhering to the dictates of the ICE Directive or providing bond hearings after six
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`months of detention.
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`Instead, they take the position that the ICE Directive is not legally
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`enforceable and that bond hearings are not required. Because the Court disagrees on both
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`counts, the motions before the Court can be resolved on the papers. Respondent’s motion
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`to dismiss is denied, and Petitioners’ preliminary injunction motion is granted.
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`1.
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`Respondents’ Motion to Dismiss
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`Respondents seek dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing
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`that this Court lacks subject matter jurisdiction to consider Petitioners’ parole claims, and
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`under Rule 12(b)(6), contending that Petitioners have failed to state a valid claim for habeas
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`corpus relief. In addition, Respondents contend that the release from custody of both Abdi
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`and Barrios Ramos renders moot any claims asserted in this litigation.
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`Because Petitioners do not challenge the ultimate decision to deny parole, but rather
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`challenge the procedures employed when evaluating a parole request, this Court has subject
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`matter jurisdiction to consider the parole claims. Moreover, Petitioners have stated valid
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`claims challenging both the failure to follow the ICE Directive in connection with parole
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`decisions, and the failure to grant a bond hearing to those individuals detained longer than
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`six months pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), petition for cert.
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`filed, 84 U.S.L.W. 3562 (US. Mar. 25, 2016) (No. 15-1205), cross-petition for cert.
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`denied, 136 S. Ct. 2494 (2016). Finally, the release of Abdi and Barrios Ramos from
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`custody does not render their claims moot because, at any time, those decisions could be
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`reversed at Respondents’ discretion.
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`A.
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`Motion to Dismiss Pursuant to Rule 12(b)(1)
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`Respondents argue that this Court lacks jurisdiction to consider Petitioners’ claims
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`regarding the denial of temporary parole.
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`(Dkt. 27-1 at 14). Federal courts are courts of
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`limited jurisdiction and possess only that power authorized by Article III of the United
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`States Constitution and statutes enacted by Congress pursuant
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`thereto. Bender v.
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`thliamsport Area Sch. Dist, 475 US. 534, 541 (1986). The party asserting jurisdiction
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`bears the burden of establishing that a court has jurisdiction over a particular claim.
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`Id.
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`When a movant challenges subject matter jurisdiction, a district court may “consider
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`affidavits and other materials beyond the pleadings” and “weigh the evidence and satisfy
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`itself as to the existence of its power to hear the case.” Iqbal v. Sec ’y, US. Dep’t of
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`Homeland Sec, 190 F. Supp. 3d 322, 326-27 (W.D.N.Y. 2016) (citations omitted).
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`However, the court “must take all facts alleged in the complaint as true and draw all
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`reasonable inferences in favor of the plaintif .” Hadees v. Johnson, 5:15-CV—1087, 2016
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`WL 5349789, at * 1 (N .D.N.Y. Sept. 23, 2016) (citations omitted).
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`Petitioners were detained pursuant to 8 U.S.C. § 1225(b). That statute provides that
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`if a non-citizen “who is arriving in the United States” indicates an intention to apply for
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`asylum or expresses a fear of persecution or torture, the individual is referred for an
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`interview to determine whether he or she has a credible fear of persecution.2 8 U.S.C.
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`§ 1225(b)(1)(A)(ii). If the individual is determined to have a credible fear of persecution,
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`he “shall be detained for further consideration of the application for asylum.”
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`Id.
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`§ 1225(b)(1)(B)(ii).
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`An individual detained under § 1225(b) can be paroled “into the United States
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`temporarily” by the Attorney General “in his discretion.” Id. § 1182(d)(5)(A). Agency
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`regulations provide that the Secretary of Homeland Security “may invoke” the authority to
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`parole an individual who is “neither a security risk nor a risk of absconding” and meets one
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`or more of a series of conditions, one of which is that “continued detention is not in the
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`public interest.” 8 C.F.R. § 212.5(a), (b)(5). The ICE Directive explains how the term
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`“public interest” is to be interpreted. See ICE Directive No. 11002.1. The Directive
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`A credible fear of persecution is defined under the statute as follows: “there is a
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`significant possibility, taking into account the credibility of the statements made by the
`alien in support of the alien’s claim and such other facts as are known to the officer, that
`the alien could establish eligibility for asylum under [8 U.S.C. § 1158].”
`8 U.S.C.
`§ 1225(b)(1)(B)(v).
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`provides that “[e]ach alien’s eligibility for parole should be considered and analyzed on its
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`own merits and based on the facts of the individual alien’s case.” Id. at 11 6.2. When an
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`arriving alien found to have a credible fear establishes to the satisfaction of ICE his or her
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`identity and that he or she presents neither a flight risk nor a danger to the community,
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`“[ICE] should, absent additional factors .
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`.
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`. parole the alien on the basis that his or her
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`continued detention is not in the public interest.” Id.
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`Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to review
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`.
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`.
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`. any other decision or action of the Attorney General or the Secretary of Homeland
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`Security the authority for which is specified under this subchapter to be in the discretion of
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`99
`the Attorney General or the Secretary of Homeland Security, with the exception of
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`determinations regarding eligibility to apply for asylum under 8 U.S.C. § 1158(a). The
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`Second Circuit has construed the phrase “this subchapter” in § 1252(a)(2)(B)(ii) to mean
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`“subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-
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`1381.” Sanusz' v. Gonzales, 445 F.3d 193, 198 (2d Cir. 2006). The temporary parole sought
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`by Petitioners is governed by § 1182(d)(5)(A), and therefore is subject to the jurisdictional
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`restrictions of § 1252(a)(2)(B)(ii). In other words, parole decisions are at the discretion of
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`the Attorney General and the Secretary of Homeland Security; thus, discretionary decisions
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`regarding parole under § 1182(d)(5)(A) are not reviewable by a court, pursuant to
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`§ 1252(a)(2)(B)(ii). See, e.g., Viknesrajah v. Koson, No. 09-CV—6442 CJS, 2011 WL
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`147901, at *2 (W.D.N.Y. Jan. 18, 2011).
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`Petitioners acknowledge that the Attorney General’s discretionary decisions to deny
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`parole are not subject to judicial review.
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`(Dkt. 48 at 15). However, Petitioners contend
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`that their challenge rests on the procedures employed by Respondents in administering the
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`parole process—not on the ultimate decision to grant or deny parole. (Id). Respondents
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`counter that Petitioners” attempt to repackage the true nature of their claims is a distinction
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`without a difference.
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`(Dkt. 49 at 7). Respondents contend that under Giammarco v.
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`Kerlikowske, 665 F. App’x 24 (2d Cir. 2016), Petitioners’ challenge is not reviewable.
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`Respondents assert that Giammarco stands for the proposition that the process by which
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`ICE reaches its decisions is itself discretionary and therefore unreviewable.
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`In Giammarco, the petitioner, who had been removed from the United States as an
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`aggravated felon, filed a petition for a writ of habeas corpus ad testz'ficandum seeking
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`reentry to comply with a legislative subpoena. Id. at 25. The Second Circuit concluded
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`that it lacked subject matter jurisdiction under § 1252(a)(2)(B)(ii) because the habeas
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`petition was an indirect challenge to discretionary decisions by the respondents denying
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`parole, a visa waiver, and a Visitor visa. Id. The court explained that it lacked jurisdiction
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`because “a decision in [the petitioner’s] favor would render the prior discretionary denials
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`invalid.” Id. at 26.
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`Giammarco is distinguishable from the facts of this case because Petitioners are not
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`challenging the discretionary decision itself. A decision in favor of Petitioners would not
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`compel a particular result with respect to parole, but rather would impact only the execution
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`of the policies and procedures surrounding the ultimate parole decision. Petitioners are not
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`asking this Court to interfere with the ultimate decision regarding parole—that issue would
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`plainly fall outside this Court’s jurisdiction pursuant to § 1252(a)(2)(B)(ii). However,
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`Petitioners are asking that this Court ensure that Respondents comply with certain policies
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`and procedures in making that parole decision—issues that are beyond the jurisdictional
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`bar of § 1252(a)(2)(B)(ii).
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`Indeed, courts have held that the jurisdictional bar in § 1252(a)(2)(B)(ii) is narrow.
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`In Zadvydas v. Davis, 533 US. 678 (2001), the habeas petitioner challenged the Attorney
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`General’s authority, under the post-removal-period statute, 8 U.S.C. § 1231(a)(6), to detain
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`a removable alien indefinitely beyond the removal period.
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`Id. at 682. The Court
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`recognized that § 1252(a)(2)(B)(ii) bars review of discretionary decisions under the post-
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`removal-period statute—including the decision to detain an alien ordered removed beyond
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`the removal period———but held that the petitioners were not seeking review of the Attorney
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`General’s exercise of discretion; “rather, they challenge[d] the extent of the Attorney
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`General’s authority under the post-removal-period detention statute.” Id. at 688. The
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`Court concluded that “the extent of that authority is not a matter of discretion.” Id.
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`The Second Circuit considered the limits of the jurisdictional bar in Sharkey v.
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`Quarantillo, 541 F.3d 75 (2d Cir. 2008). In that case, the plaintiff argued that Immigration
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`and Naturalization Service (“INS”)3 had attempted to rescind her status as a Lawful
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`Permanent Resident (“LPR”) “without following the mandatory statutory and regulatory
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`procedures governing the rescission of” that status.
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`Id. at 81.
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`INS moved to dismiss the
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`complaint for lack of subject matter jurisdiction, and the district court granted the motion
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`on the basis that § 1252(a)(2)(B)(ii) precluded review.
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`Id. at 82. The Second Circuit
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`reversed, holding that this provision did not bar the plaintiff s unlawfiil rescission claim
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`The agency formerly called INS is no longer in existence, and some of its functions
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`are now performed by ICE. See Brita v. Mukasey, 521 F.3d 160, 162 n.2 (2d Cir. 2008).
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`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 14 of 68
`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 14 of 68
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`because “the alleged rescission was not performed in accordance with the mandatory
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`rescission procedures. .
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`.
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`. Thus, the alleged rescission was not ‘specified .
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`.
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`. to be in the
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`discretion of the Attorney General.” Id. at 86 (quoting Firstland Int ’1, Inc. v. INS, 377
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`F.3d 127, 130-31 (2d Cir. 2004)).
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`Here, as in Zadvydas and Sharkey, Petitioners do not challenge the ultimate parole
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`decision under § 1182(d)(5)(A). Rather, Petitioners allege that Respondents have violated
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`and continue to violate the ICE Directive that they claim to be following.
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`(Dkt. 17 at 2).
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`Petitioners contend that the parole rate has dramatically dropped since January 2017 (id.);
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`that deportation officers told them that parole was no longer available (id. at 15); and
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`Petitioners received denial notices that did not comply with the ICE Directive (id. at 6-7,
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`12-15). Petitioners do not ask the Court to consider whether any decision to deny parole
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`was improper.
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`Instead, Petitioners seek a ruling that Respondents’ failure to follow their
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`own policy directive is unlawful. In other words, Petitioners simply seek compliance with
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`certain minimum procedural safeguards when parole decisions are made—they do not seek
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`to have this Court interfere with the ultimate parole decision. Section 1252(a)(2)(B)(ii)
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`does not bar that claim.
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`Respondents attempt
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`to distinguish Zadvydas and Sharkey, arguing that
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`the
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`challenges in those cases were grounded in the statutory framework, as opposed to an
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`internal memo.
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`(Dkt. 49 at 8). Petitioners challenge the failure to follow procedures that
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`flow from an internal directive, and Respondents contend that internal directives are not
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`binding.
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`(Dkt. 27-1 at 16-17). According to Respondents, because the procedures that
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`Petitioners seek to enforce are not codified in a statute or regulation, and because the
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`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 15 of 68
`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 15 of 68
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`decision to grant or deny parole is discretionary, the procedures in the ICE Directive are
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`also discretionary. Respondents argue that this fact divests this Court of jurisdiction
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`because the case is brought under 28 U.S.C. § 2241, the habeas corpus statute, which limits
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`the Court’s habeas jurisdiction to reviewing for “statutory or constitutional errors.” (Id. at
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`17-18); Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001).
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`Respondents are correct that courts in this Circuit have held that federal jurisdiction
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`over
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`§ 2241 petitions does not extend to “review of factual or discretionary
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`determinations.” Sol, 274 F.3d at 651. However, Respondents improperly characterize
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`Petitioners’ claims. Although Petitioners have alleged facts in support of their claim that
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`the Buffalo Federal Detention Facility is failing to abide by the ICE Directive, Petitioners
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`ultimately contend that this failure violated their rights under 8 U.S.C. § 1182(d)(5)(A), 8
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`C.F.R. § 212.5, and the “Accardi doctrine” (as discussed below).
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`For the reasons explained below in the analysis of Respondents’ motion to dismiss
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`pursuant to Rule 12(b)(6), the Court concludes that Petitioners have asserted questions of
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`law, and that Petitioners’ claims therefore fall within this Court’s habeas jurisdiction.
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`Accordingly, Respondents’ motion to dismiss Petitioners’ parole claims under Rule
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`12(b)(1) is denied.
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`-15-
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`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 16 of 68
`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 16 of 68
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`B.
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`Motion to Dismiss Pursuant to Rule 12(b)(6)
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`1.
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`Parole Claims
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`In addition to their jurisdictional challenge, Respondents assert
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`that even if
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`Petitioners’ parole claims are not precluded by § 1252(a)(2)(B)(ii),
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`those claims are
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`meritless. A court should consider a Rule 12(b)(6) motion to dismiss for failure to state a
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`claim “accepting all factual allegations in the complaint and drawing all reasonable
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`inferences in the plaintiff‘s favor.” Ruotolo v. City ofNew York, 514 F.3d 184, 188 (2d
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`Cir. 2008) (citation omitted). The Court “may only consider facts stated in the complaint
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`or documents attached to the complaint.” Spikes Bell v. Cont ’l Sch. OfBeauty, 11 F. Supp.
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`3d 403, 406 (W.D.N.Y. 2014). To withstand dismissal, a plaintiff must set forth “enough
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`facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is liable
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`for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Nielsen
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`v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“The plausibility standard is not akin to a
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`probability requirement. .
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`.
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`.
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`[A] well-pleaded complaint may proceed even if it strikes a
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`savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very
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`remote and unlikely.” (citations, alterations, and internal quotation marks omitted)).
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`“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
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`detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
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`‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation
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`of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration and
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`-16-
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`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 17 of 68
`Case 1:17-cv-00721-EAW Document 56 Filed 11/17/17 Page 17 of 68
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`citations omitted). Thus, “at a bare minimum, the operative standard requires the ‘plaintiff
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`to provide the grounds upon which his claim rests through factual allegations sufficient to
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`raise a right to relief above the speculative level.”’ Goldstein v. Pataki, 516 F.3d 50, 56
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`(2d Cir. 2008) (alteration and citations omitted).
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`Respondents argue that Petitioners fail to state a claim for relief because the ICE
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`Directive is not binding, and any failure to follow its terms is not subject to legal challenge.
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`(Dkt. 49 at 8-9). Respondents contend that the ICE Directive does not create any rights,
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`privileges, or benefits enforceable against the United States.
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`(Id. at 8). According to
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`Respondents, Petitioners received the process that they are due and cannot assert otherwise
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`on the basis of a failure to comply with the terms of an internal directive.
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`Petitioners respond that the “Accardi doctrine” dictates that Respondents are bound
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`by the ICE Directive and the procedural steps and substantive criteria that it sets out. (Dkt.
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`48 at 20-21).
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`In United States ex rel. Accardi v. Shaug/messy, 347 US. 260 (1954), the
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`Supreme Court held that “regulations with the force and effect of law supplement the bare
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`bones” of federal statutes. Id. at 265.
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`In that case, the Court vacated a deportation order
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`on the ground that the procedure that preceded the order did not conform to the relevant
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`regulations.
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`Id. at 267-68; see also Morton v. Ruiz, 415 US. 199, 235 (1974) (striking
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`down a Bureau of Indian Affairs determination that did not comply with procedures set
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`forth in the agency’s manual). The Second Circuit