U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-01593-JEB

HEREDIA MONS et al v. MCALEENAN et al Assigned to: Judge James E. Boasberg Case: 1:18-cv-00578-JEB Case in other court: USCA, 19-05306 Cause: 05:551 Administrative Procedure Act

Date Filed: 05/30/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
ANGEL ALEJANDRO HEREDIA MONS

represented by Bruce Warfield Hamilton ACLU FOUNDATION OF LOUISIANA P.O. Box 56157 New Orleans, LA 70156 504-522-0628 Fax: 504-613-6511 Email: bhamilton@laaclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura Rivera 150 East Ponce De Leon Avenue Suite 340 Decatur, GA 30030 404-521-6700 TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Luz Virginia Lopez 1101 17th St., N.W. Suite 750 Washington, DC 20036 202-355-4474 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mary Bauer

MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 470-606-9307 Email: mary@muslimadvocates.org TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow SOUTHERN POVERTY LAW CENTER 1101 17th Street N.W. 7th Floor Washington, DC 20036 (202) 355-4471 Fax: (202) 742-5619 Email: Melissa.Crow@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF LOUISIANA 1340 Poydras Street Suite 2160 New Orleans, LA 70112 504-522-0628 TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez SOUTHERN POVERTY LAW CENTER 2 S. Biscayne Blvd. 32nd Floor Miami, FL 33131 786-753-1383 Email: mich.gonzalez@splcenter.org ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada

Plaintiff
ROLAND NCHANGO TUMENTA

SOUTHERN POVERTY LAW CENTER 2 S. Biscayne Blvd. 32nd Floor Miami, FL 33131 786-347-2056 Email: victoria.mesa@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE

Plaintiff ADRIAN TOLEDO FLORES

ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020

Plaintiff DAYANA MENA LOPEZ

PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address)

Plaintiff
DOUGLAS ENRIQUE PUCHE MORENO

TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann

Plaintiff M.R.M.H.

(See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff F.J.B.H.

Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
MIGUEL ANGEL GIRON MARTINEZ

Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) LEAD ATTORNEY

Plaintiff Y.A.L.

ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address)

Plaintiff J.M.R.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow

Plaintiff P.S.P.

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff R.O.P.

Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Rivera (See above for address) TERMINATED: 01/25/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luz Virginia Lopez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Bauer (See above for address) TERMINATED: 01/22/2021 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant KEVIN K. MCALEENAN in his official capacity as Acting Secretary of the Department of Homeland Security
Defendant MATTHEW T. ALBENCE in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement Defendant NATHALIE ASHER in her official capacity as Acting

Melissa E. Crow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Schwartzmann (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle P. Gonzalez (See above for address) ATTORNEY TO BE NOTICED
Victoria Mesa-Estrada (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jeremy S. Simon U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2528 Fax: (202) 252-2599 Email: jeremy.simon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy S. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy S. Simon (See above for address)

Executive Associate Director of ICE Enforcement and Removal Operations
Defendant GEORGE LUND, III in his official capacity as Director of the ICE New Orleans Field Office
Intervenor CENTER FOR INVESTIGATIVE REPORTING, INC.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy S. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chelsea Kelly DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, N.W. Suite 800 Washington, DC 20006 (202) 973-4250 Email: chelseakelly@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana Victoria Baranetsky The Center for Investigative Reporting CA 1400 65th St., Suite 200 Emeryville, CA 94608 201-306-4831 Email: vbaranetsky@revealnews.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 05/30/2019

# Docket Text
2 COMPLAINT for Injunctive Relief and Declaratory Relief against All Defendants ( Filing fee $ 400 receipt number 0090-6156105) filed by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Summons George Lund, III, # 4 Summons Kevin McAleenan, # 5 Summons Matthew Albence, # 6 Summons Nathalie R. Asher)(Crow, Melissa) (Entered: 05/30/2019)

05/30/2019 05/31/2019 06/05/2019 06/06/2019 06/07/2019 06/25/2019
06/25/2019
06/25/2019

3 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 1:18-cv-00578-JEB. (Crow, Melissa) (Main Document 3 replaced on 6/11/2019) (znmw). (Entered: 05/30/2019)
4 REQUEST FOR SUMMONS TO ISSUE re 2 Complaint, filed by ANGEL ALEJANDRO HEREDIA MONS. Related document: 2 Complaint, filed by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Crow, Melissa) (Entered: 05/31/2019)
5 SEALED ORDER Granting 1 *SEALED* MOTION to Proceed Under Pseudonym and to File Supporting Exhibits Under Seal by ANGEL ALEJANDRO HEREDIA MONS (This document is SEALED and only available to authorized persons.)Signed by Judge James E. Boasberg on 6/5/19.(znbn) (Entered: 06/05/2019)
Case Assigned to Judge James E. Boasberg. (zsb) (Entered: 06/07/2019)
6 SUMMONS (4) Issued Electronically as to MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachment: # 1 Notice and Consent)(zsb) (Entered: 06/07/2019)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Bruce Hamilton, :Firm- American Civil Liberties Union Foundation of Louisiana, :Address- 1340 Poydras Street, Suite 2160, New Orleans, Louisiana, 70112. Phone No. - (504) 522-0628 ext. 122. Filing fee $ 100, receipt number 0090-6213883. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 06/25/2019)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Katie Schwartzmann, :Firm- American Civil Liberties Union Foundation of Louisiana, :Address- 1340 Poydras Street, Suite 2160, New Orleans, Louisiana, 70112. Phone No. - (504) 522-0628 ext. 125. Filing fee $ 100, receipt number 0090-6213886. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 06/25/2019)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Laura Rivera, :Firm- Southern Poverty Law Center, :Address- 150 East Ponce De Leon Avenue, Suite 340, Decatur, GA 30030. Phone No. - (404) 521-6700. Filing fee $ 100, receipt number 0090-6213890. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 06/25/2019)

06/25/2019
06/25/2019
06/25/2019 06/25/2019 06/26/2019 06/26/2019 06/26/2019 06/26/2019

10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Luz Virginia Lopez, :Firm- Southern Poverty Law Center, :Address- 1101 17th Street, Suite 750, Washington, DC 20036. Phone No. - (202) 3554471. Filing fee $ 100, receipt number 0090-6213892. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 06/25/2019)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Mary Bauer, :Firm- Southern Poverty Law Center, :Address- 1000 Preston Avenue, Suite A, Charlottesville, VA 29903. Phone No. - (404) 5216700. Filing fee $ 100, receipt number 0090-6213897. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 06/25/2019)
12 REQUEST FOR SUMMONS TO ISSUE re 2 Complaint, filed by ANGEL ALEJANDRO HEREDIA MONS. Related document: 2 Complaint, filed by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Summons)(Crow, Melissa) (Entered: 06/25/2019)
13 ENTERED IN ERROR.....SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General. (tth); Modified on 6/27/2019 (ztth). (Entered: 06/27/2019)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 7 Motion for Admission Pro Hac Vice of BRUCE WARFIELD HAMILTON is GRANTED. So ORDERED by Judge James E. Boasberg on 6/26/2019. (lcjeb3) (Entered: 06/26/2019)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 8 Motion for Admission Pro Hac Vice of KATHARINE MURPHY SCHWARTZMANN is GRANTED. So ORDERED by Judge James E. Boasberg on 6/26/2019. (lcjeb3) (Entered: 06/26/2019)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 9 Motion for Admission Pro Hac Vice of LAURA RIVERA is GRANTED. So ORDERED by Judge James E. Boasberg on 6/26/2019. (lcjeb3) (Entered: 06/26/2019)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 10 Motion for Admission Pro Hac Vice of LUZ VIRGINIA LOPEZ is GRANTED. So ORDERED by Judge James E. Boasberg on 6/26/2019. (lcjeb3) (Entered: 06/26/2019)

06/26/2019 06/27/2019 06/27/2019 06/28/2019
06/28/2019
06/28/2019
07/08/2019

MINUTE ORDER: The Court ORDERS that Plaintiffs' 11 Motion for Admission Pro Hac Vice of MARY BAUER is GRANTED. So ORDERED by Judge James E. Boasberg on 6/26/2019. (lcjeb3) (Entered: 06/26/2019)
NOTICE OF CORRECTED DOCKET ENTRY: re 13 Summons Issued Electronically as to AUSA was entered in error. Said pleading will be refiled with the correct issuance date on the Summons. (ztth) (Entered: 06/27/2019)
14 SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General. (tth) (Entered: 06/27/2019)
15 MOTION to Certify Class by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Email from ICE to AILA, # 4 Exhibit Declaration of Allyson Page, # 5 Exhibit Declaration of Joseph Giardina, # 6 Exhibit Declaration of Olga Badilla, # 7 Exhibit Declaration of Helen Boyer, # 8 Exhibit Declaration of Mary Bauer, # 9 Exhibit Declaration of Katie Schwartzmann)(Crow, Melissa) (Entered: 06/28/2019)
16 REDACTED DOCUMENT- Motion for Class Certification (w. Redacted Exhibits) to 15 MOTION to Certify Class by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Exhibit Declaration, # 4 Exhibit Declaration, # 5 Exhibit Declaration, # 6 Exhibit Declaration, # 7 Exhibit Declaration, # 8 Exhibit Declaration, # 9 Exhibit Declaration, # 10 Exhibit Declaration, # 11 Exhibit Declaration)(Crow, Melissa) (Entered: 06/28/2019)
17 SEALED MOTION filed by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration, # 8 Declaration, # 9 Declaration, # 10 Declaration, # 11 Declaration, # 12 Declaration, # 13 Declaration, # 14 Exhibit, # 15 Declaration, # 16 Declaration, # 17 Declaration, # 18 Declaration, # 19 Declaration, # 20 Declaration)(Crow, Melissa) (Entered: 06/28/2019)
18 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/03/2019., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/3/2019. ( Answer due for ALL FEDERAL DEFENDANTS by 9/1/2019.), RETURN OF SERVICE/AFFIDAVIT of Summons and

07/11/2019 07/11/2019 07/17/2019 07/18/2019
07/18/2019 07/18/2019 07/19/2019

Complaint Executed. MATTHEW T. ALBENCE served on 7/2/2019; NATHALIE ASHER served on 7/2/2019; GEORGE LUND, III served on 7/2/2019; KEVIN K. MCALEENAN served on 7/2/2019 (Attachments: # 1 Summons US Attorney's Office, # 2 Summons George H. Lund, III, # 3 Summons Kevin McAleenan, # 4 Summons Matthew T. Albence, # 5 Summons Nathalie R. Asher)(Crow, Melissa) (Entered: 07/08/2019)
19 NOTICE of Appearance by Jeremy S. Simon on behalf of All Defendants (Simon, Jeremy) (Entered: 07/11/2019)
20 NOTICE Regarding Service of Motion for Class Certification by MATTHEW T. ALBENCE, NATHALIE ASHER, KEVIN K. MCALEENAN (Simon, Jeremy) (Entered: 07/11/2019)
21 Consent MOTION for Extension of Time to File Response to Motion for Class Certification by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 07/17/2019)
MINUTE ORDER: The Court ORDERS that Defendants' 21 Motion for Extension of Time to File is GRANTED, and that they shall file their response to the Motion for Class Certification by the deadline under the local civil rules to respond to Plaintiffs' anticipated motion for preliminary injunction. So ORDERED by Judge James E. Boasberg on 7/18/2019. (lcjeb3) (Entered: 07/18/2019)
22 MOTION for Preliminary Injunction by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Declaration of Sophie Beiers, # 4 Exhibit Declaration of Julie Hartle)(Crow, Melissa) (Entered: 07/18/2019)
23 SEALED DOCUMENT filed by ANGEL ALEJANDRO HEREDIA MONS re 22 MOTION for Preliminary Injunction (This document is SEALED and only available to authorized persons.)(Crow, Melissa) (Entered: 07/18/2019)
MINUTE ORDER: The Court ORDERS that a conference call in Chambers is hereby set for Monday, July 22, 2019, at 2:30 p.m. to discuss the briefing schedule. The Court ORDERS that the parties shall dial into Chambers' toll-free conference-call number, (877) 402-9753, at this time (in Chambers). Chambers will contact the parties via email with the dial-in code. So ORDERED by Judge James E. Boasberg on 7/19/2019. (lcjeb3) (Entered: 07/19/2019)

07/19/2019 07/22/2019 07/22/2019 07/22/2019
07/22/2019 08/05/2019 08/05/2019 08/15/2019

Set/Reset Hearings: Telephone Conference set for 7/22/2019 at 02:30 PM in Chambers before Judge James E. Boasberg. (znbn) (Entered: 07/19/2019)
24 NOTICE of Supplemental Filing by ANGEL ALEJANDRO HEREDIA MONS re 22 MOTION for Preliminary Injunction (Crow, Melissa) (Entered: 07/22/2019)
25 SEALED DOCUMENT filed by ANGEL ALEJANDRO HEREDIA MONS re 22 MOTION for Preliminary Injunction , 24 Notice (Other) (This document is SEALED and only available to authorized persons.)(Crow, Melissa) (Entered: 07/22/2019)
MINUTE ORDER: As discussed in today's telephone conference call, the Court ORDERS that: 1) Defendants' Oppositions to Plaintiffs' Motion for Preliminary Injunction and Plaintiffs' Motion for Class Certification shall be due by August 5, 2019, with Plaintiffs' Replies due by August 15, 2019; and 2) The parties shall appear for a hearing on the PI Motion on August 29, 2019, at 11:00 a.m. So ORDERED by Judge James E. Boasberg on 7/22/2019. (lcjeb3) (Entered: 07/22/2019)
Set/Reset Deadlines/Hearings: Motion for Class Certification due by 8/5/2019. Opposition to Plaintiffs' Motion for Preliminary Injunction due by 8/5/2019. Replies due by 8/15/2019. Motion Hearing set for 8/29/2019 at 11:00 AM in Courtroom 25A before Judge James E. Boasberg. (znbn) (Entered: 07/22/2019)
26 Memorandum in opposition to re 22 MOTION for Preliminary Injunction , 15 MOTION to Certify Class filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Proposed Order, # 2 Declaration of Scott Sutterfield, # 3 Declaration of Brian Acuna)(Simon, Jeremy) (Entered: 08/05/2019)
27 MOTION to Dismiss and Opposition to Motion for Preliminary Injunction and Class Certification (duplicate of docket entry 26) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order, # 2 Declaration of Scott Sutterfield, # 3 Declaration of Brian Acuna)(Simon, Jeremy) (Entered: 08/05/2019)
28 REPLY to opposition to motion re 27 MOTION to Dismiss and Opposition to Motion for Preliminary Injunction and Class Certification (duplicate of docket entry 26) filed by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Exhibit Ernesto Rodriguez Cruz, # 2 Exhibit Email from J. Hartle to L. Rivera)(Crow, Melissa) (Entered: 08/15/2019)

08/16/2019 08/19/2019 08/19/2019 08/21/2019 08/28/2019 08/29/2019 09/05/2019 09/05/2019 09/12/2019

29 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss by ANGEL ALEJANDRO HEREDIA MONS (Crow, Melissa) (Entered: 08/16/2019)
MINUTE ORDER GRANTING Plaintiffs' 29 Motion for Extension of Time to File. The Court ORDERS that Plaintiffs shall their opposition on or before August 21, 2019. So ORDERED by Judge James E. Boasberg on 8/19/2019. (lcjeb3) (Entered: 08/19/2019)
Set/Reset Deadlines: Opposition due by 8/21/2019. (lsj) (Entered: 08/19/2019)
30 RESPONSE re 27 MOTION to Dismiss and Opposition to Motion for Preliminary Injunction and Class Certification (duplicate of docket entry 26) filed by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Declaration of P.S.P.)(Crow, Melissa) (Entered: 08/21/2019)
31 REPLY to opposition to motion re 27 MOTION to Dismiss and Opposition to Motion for Preliminary Injunction and Class Certification (duplicate of docket entry 26) filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 08/28/2019)
Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 8/29/2019 re 22 MOTION for Preliminary Injunction filed by ANGEL ALEJANDRO HEREDIA MONS. Oral arguments heard and motion taken under advisement. (Court Reporter Lisa Griffith) (nbn) (Entered: 08/29/2019)
32 MEMORANDUM OPINION re 22 Motion for Preliminary Injunction, 15 Motion for Class Certification, and 27 Motion to Dismiss. Signed by Judge James E. Boasberg on 9/5/2019. (lcjeb1) Modified to correct date on 9/5/2019 (znbn). (Entered: 09/05/2019)
33 ORDER GRANTING 22 Motion for Preliminary Injunction; GRANTING 15 Motion for Class Certification on provisional basis for the purposes of preliminary injunction; and GRANTING IN PART and DENYING IN PART 27 Motion to Dismiss. Signed by Judge James E. Boasberg on 09/5/2019. (lcjeb1) (Entered: 09/05/2019)
MINUTE ORDER: At the request of counsel, the Court ORDERS that Attorney Bruce Hamilton may appear by telephone for the status hearing set for September 18, 2019 at 10:30 a.m. in Courtroom 25. The Court will call Mr. Hamilton shortly before the status hearing begins. So ORDERED by Judge James E. Boasberg on 09/12/2019. (lcjeb1) (Entered: 09/12/2019)

09/12/2019 09/18/2019 09/18/2019
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09/26/2019 10/02/2019 10/04/2019

Set/Reset Hearings: Status Conference set for 9/18/2019 at 10:30 AM in Courtroom 25A before Judge James E. Boasberg. (lsj) (Entered: 09/12/2019)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 9/18/2019. Order forthcoming. (Court Reporter Lisa Griffith) (znbn) (Entered: 09/18/2019)
MINUTE ORDER: As discussed at today's status conference, the Court ORDERS that: 1) The parties shall file a Joint Status Report by September 25, 2019, concerning the proposed class notice and its dissemination; and 2) The parties shall file a further Joint Status Report by October 2, 2019, concerning proposed future reports akin to those in Damus. So ORDERED by Judge James E. Boasberg on 9/18/2019. (lcjeb3) (Entered: 09/18/2019)
Set/Reset Deadlines: Joint Status Report due by 9/25/2019. Joint Status Report due by 10/2/2019. (znbn) (Entered: 09/18/2019)
34 Joint STATUS REPORT of the Parties by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Proposed Notice)(Simon, Jeremy) (Entered: 09/25/2019)
MINUTE ORDER: The Court ORDERS that the parties shall appear for a status hearing on October 7, 2019, at 11:00 a.m. to resolve any outstanding disputes related to the Court's Minute Order of September 18, 2019. So ORDERED by Judge James E. Boasberg on 9/26/2019. (lcjeb3) (Entered: 09/26/2019)
Set/Reset Hearings: Status Conference set for 10/7/2019 at 11:00 AM in Courtroom 25A before Judge James E. Boasberg. (lsj) (Entered: 09/26/2019)
35 Joint STATUS REPORT of the Parties by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Exhibit A)(Simon, Jeremy) (Entered: 10/02/2019)
MINUTE ORDER: At the request of counsel, the Court ORDERS that Attorney Bruce Hamilton may appear by telephone for the status hearing set for October 7, 2019 at 11 a.m. in Courtroom 25. The Court will call Mr. Hamilton shortly before the status hearing begins. So ORDERED by Judge James E. Boasberg on 10/3/2019. (lcjeb1) (Entered: 10/04/2019)

10/07/2019 10/07/2019
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Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 10/7/2019. Order forthcoming. Status Conference set for 1/7/2020 at 10:30 AM in Courtroom 25A before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (nbn) (Entered: 10/07/2019)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) Defendants shall post the agreed-upon Notice, which will include an address, email, and hot-line phone number for Plaintiffs' counsel, on October 14, 2019; 2) Defendants shall distribute the Notice to class members (or, if they choose, all detainees) between October 1428, 2019; 3) Defendants shall file their Answer to the Complaint by October 21, 2019; 4) The Reports shall issue in the manner proposed by Defendants in the 35 Status Report; and 5) The parties shall appear for a status conference on January 7, 2020, at 10:30 a.m. So ORDERED by Judge James E. Boasberg on 10/7/2019. (lcjeb3) (Entered: 10/07/2019)
Set/Reset Deadlines: Answer due by 10/21/2019. (znbn) (Entered: 10/07/2019)
36 Unopposed MOTION for Extension of Time to Answer Complaint by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/21/2019)
MINUTE ORDER GRANTING Defendants' 36 Motion for Extension of Time. The Court ORDERS that Defendants shall answer Plaintiffs' Complaint by November 12, 2019. So ORDERED by Judge James E. Boasberg on 10/22/2019. (lcjeb3) (Entered: 10/22/2019)
Set/Reset Deadlines: Answer due by 11/12/2019. (znbn) (Entered: 10/22/2019)
37 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 33 Order, 32 Order on Motion for Preliminary Injunction by MATTHEW T. ALBENCE, KEVIN K. MCALEENAN, NATHALIE ASHER, GEORGE LUND, III. Fee Status: No Fee Paid. Parties have been notified. (Simon, Jeremy) (Entered: 11/01/2019)
38 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 37 Notice of Appeal to DC Circuit Court. (ztth) (Entered: 11/04/2019)
USCA Case Number 19-5306 for 37 Notice of Appeal to DC Circuit Court, filed by MATTHEW T. ALBENCE, KEVIN K. MCALEENAN,

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12/20/2019 12/23/2019

GEORGE LUND, III, NATHALIE ASHER. (zrdj) (Entered: 11/14/2019)
39 ANSWER to Complaint by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN.(Simon, Jeremy) (Entered: 11/12/2019)
40 STIPULATION (Stipulated Protective Order) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 11/24/2019)
MINUTE ORDER: The Court ORDERS that the parties' 40 Stipulated Protective Order is ADOPTED. Signed by Judge James E. Boasberg on 11/25/2019. (lcjeb3) Modified on 12/6/2019 (znbn). (Entered: 11/25/2019)
41 MOTION for Extension of Time to File Report Pursuant to October 7, 2019 Order by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy) Modified date filed due to technical issues on the evening of 11/25/19 on 11/26/2019 (ztd). (Entered: 11/26/2019)
MINUTE ORDER GRANTING Defendants' 41 Motion for Extension of Time. The Court ORDERS that Defendants shall submit their report by December 6, 2019. So ORDERED by Judge James E. Boasberg on 11/26/2019. (lcjeb3) (Entered: 11/26/2019)
Set/Reset Deadlines: Defendants shall submit their report by 12/6/2019. (nbn) (Entered: 11/26/2019)
42 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Jacques Metoyer (including Exhibit "A" and "B" thereto))(Simon, Jeremy) (Entered: 12/06/2019)
43 MOTION to Clarify the Court's Order of October 7, 2019 Regarding Dissemination of the Class Notice by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Simon, Jeremy) (Entered: 12/20/2019)
44 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Jacques Metoyer

01/03/2020
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(including Exhibit "A" and "B" thereto))(Simon, Jeremy) (Entered: 12/23/2019)
45 RESPONSE re 43 MOTION to Clarify the Court's Order of October 7, 2019 Regarding Dissemination of the Class Notice filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Crow, Melissa) (Entered: 01/03/2020)
46 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michelle P. Gonzalez, Filing fee $ 100, receipt number ADCDC-6705291. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration Declaration of Mich Gonzalez, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 01/06/2020)
47 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Victoria Mesa-Estrada, Filing fee $ 100, receipt number ADCDC-6705324. Fee Status: Fee Paid. by ANGEL ALEJANDRO HEREDIA MONS (Attachments: # 1 Declaration of Victoria Mesa Estrada, # 2 Text of Proposed Order)(Crow, Melissa) (Entered: 01/06/2020)
MINUTE ORDER GRANTING 47 Motion for Admission Pro Hac Vice of VICTORIA MESA-ESTRADA. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 1/6/2020. (lcjeb3) (Entered: 01/06/2020)
MINUTE ORDER GRANTING 46 Motion for Admission Pro Hac Vice of MICHELLE P. GONZALEZ. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 1/6/2020. (lcjeb3) (Entered: 01/06/2020)
48 REDACTED DOCUMENT- Notice of Issues to be Discussed at Status Conference January 7, 2020 by ANGEL ALEJANDRO HEREDIA MONS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Crow, Melissa) (Entered: 01/06/2020)
49 SEALED DOCUMENT filed by ANGEL ALEJANDRO HEREDIA MONS re 48 Redacted Document, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Crow, Melissa) (Entered: 01/06/2020)

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01/08/2020 01/09/2020 01/10/2020

Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 1/7/2020. The parties are ORDERED to file a Proposed Order by 1/8/2020. Joint Status Report due by 1/21/2020. (Court Reporter Bryan Wayne) (nbn) (Entered: 01/07/2020)
MINUTE ORDER: As discussed at yesterday's status hearing, the Court ORDERS that: 1) The parties shall submit a joint proposed order today clarifying the scope of the class, making clear that the requirement to distribute notice to all class members is ongoing, and setting forth a two-week window for distribution to those who haven't received the notice; and 2) The parties shall submit a further Joint Status Report by January 21, 2020, regarding any other disputed issues. So ORDERED by Judge James E. Boasberg on 1/8/2020. (lcjeb3) (Entered: 01/08/2020)
50 Joint STATUS REPORT Attaching Alternative Proposed Orders Of The Parties by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Exhibit 1 (Defendants' Proposed Order), # 2 Exhibit 2 (Plaintiffs' Proposed Order))(Simon, Jeremy) (Entered: 01/08/2020)
51 ORDER regarding class notice. Signed by Judge James E. Boasberg on 1/9/2020. (lcjeb3) (Entered: 01/09/2020)
52 TRANSCRIPT OF 1/7/20 STATUS HEARING before Judge James E. Boasberg held on January 7, 2020; Page Numbers: 1-26. Date of Issuance: 1/10/2020. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the tr anscript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 1/31/2020. Redacted Transcript Deadline set for 2/10/2020. Release of Transcript Restriction set for 4/9/2020.(Wayne, Bryan) (Entered: 01/10/2020)

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03/31/2020

53 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 01/21/2020)
54 NOTICE of Filing by ANGEL ALEJANDRO HEREDIA MONS re 53 Status Report (Attachments: # 1 Appendix A)(Crow, Melissa) (Entered: 01/21/2020)
55 ORDER regarding Parole Directive. Signed by Judge James E. Boasberg on 1/29/2020. (lcjeb3) (Entered: 01/29/2020)
56 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Jacques Metoyer (including Exhibit "A" and "B"))(Simon, Jeremy) (Entered: 01/29/2020)
57 Mail Returned as Undeliverable; Sent to Attorney Luz Lopez; Type of Document Returned: Order. (nbn) (Entered: 02/12/2020)
58 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (Exhibits A and B thereto))(Simon, Jeremy) (Entered: 02/24/2020)
MINUTE ORDER: The Court ORDERS that the parties shall submit a joint status report by April 3, 2020, setting forth how they believe the case should proceed from here. So ORDERED by Judge James E. Boasberg on 3/20/2020. (lcjeb3) (Entered: 03/20/2020)
Set/Reset Deadlines: Joint Status Report due by 4/3/2020. (nbn) (Entered: 03/20/2020)
59 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (including Exhibits "A" and "B"))(Simon, Jeremy) (Entered: 03/23/2020)
60 MOTION for Leave to File Excess Pages by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (MesaEstrada, Victoria) (Entered: 03/31/2020)

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61 Emergency MOTION for Preliminary Injunction by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11)(Mesa-Estrada, Victoria) (Entered: 03/31/2020)
62 SEALED DOCUMENT filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. re 61 Emergency MOTION for Preliminary Injunction (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8)(Mesa-Estrada, Victoria) (Entered: 03/31/2020)
MINUTE ORDER: As discussed in today's telephone conference call, the Court ORDERS that: 1) Defendants shall respond to Plaintiffs' PI Motion by April 7, 2020; 2) Plaintiffs shall file any reply containing updated factual information by April 8, 2020; and 3) The parties shall appear for oral argument via telephone on April 9, 2020, at 2:00 p.m. So ORDERED by Judge James E. Boasberg on 4/2/2020. (lcjeb3) (Entered: 04/02/2020)
63 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 04/02/2020)
Set/Reset Deadlines/Hearings: Responses due by 4/7/2020. Replies due by 4/8/2020. Telephonic Preliminary Injunction Hearing set for 4/9/2020 at 02:00 PM in Chambers before Judge James E. Boasberg. (nbn) (Entered: 04/03/2020)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 60 Motion for Leave to File Excess Pages is GRANTED. So ORDERED by Judge James E. Boasberg on 4/6/2020. (lcjeb3) (Entered: 04/06/2020)
MINUTE ORDER: The Court has reviewed the parties' 63 Joint Status Report and agrees with Plaintiffs that setting a dispositive-motion schedule is still premature. The Court, accordingly, ORDERS that the parties, in addition to the Government's continuing status reports, shall file another Joint Status Report by June 8, 2020, setting forth their

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04/09/2020

position(s) on future scheduling. The Court, of course, will address the pending PI Motion in the interim. So ORDERED by Judge James E. Boasberg on 4/6/2020. (lcjeb3) (Entered: 04/06/2020)
Set/Reset Deadlines: Joint Status Report due by 6/8/2020. (nbn) (Entered: 04/07/2020)
64 Memorandum in opposition to re 61 Emergency MOTION for Preliminary Injunction filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Proposed Order, # 2 Declaration of John Hartnett, # 3 Exhibit 1 (March 20, 2020 email exchange))(Simon, Jeremy) (Entered: 04/07/2020)
65 REPLY re 64 Memorandum in Opposition, to 61 Plaintiffs' Emergency Motion for Preliminary Injunction filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Declaration of BAE, # 2 Declaration of KSR, # 3 Declaration of LPC, # 4 Declaration of RPH, # 5 Declaration of TMF, # 6 Declaration of YPT, # 7 Declaration of THD, # 8 Declaration of Rose Murray, # 9 Declaration of Dr. Peter Scharf)(Mesa-Estrada, Victoria) Modified on to add docket entry relationship 4/9/2020 (ztth). (Entered: 04/08/2020)
66 SUPPLEMENTAL MEMORANDUM re 64 Memorandum in Opposition, (Attachment: # 1 Updated Guidance)(Simon, Jeremy); Modified event and text on 4/9/2020 (ztth). (Entered: 04/09/2020)
MINUTE ORDER: As discussed during today's telephonic hearing, the Court ORDERS that: 1) Plaintiffs' PI Motion is held in abeyance; 2) Defendants shall file a Notice by April 20, 2020, setting forth the number of detention reviews and/or hearings conducted for individuals meeting the criteria set out in the April 4, 2020, Guidance (ECF No. 661), whether instigated by the detainee or the Government; and 3) The parties shall return for a further telephonic conference on April 21, 2020, at 12:00 noon. So ORDERED by Judge James E. Boasberg on 4/9/2020. (lcjeb3) (Entered: 04/09/2020)
Minute Entry for proceedings held before Judge James E. Boasberg: Telephone Conference held on 4/9/2020: See Minute Order filed on 4/9/2020 for full details. Notice due by 4/20/2020. A further Telephone Conference set for 4/21/2020 at 12:00 PM in Chambers before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (nbn) (Entered: 04/09/2020)

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67 NOTICE (Defendants' Notice In Response To Court Order) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN re Order,, (Attachments: # 1 Declaration of John Hartnett)(Simon, Jeremy) (Entered: 04/20/2020)
68 NOTICE OF SUPPLEMENTAL AUTHORITY by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (Attachments: # 1 Exhibit 1 - Fraihat Decision, # 2 Exhibit 2 Declaration of Rose Murray, # 3 Exhibit 3 - Declaration of Joseph Giardina)(Mesa-Estrada, Victoria) (Entered: 04/21/2020)
Minute Entry for proceedings held before Judge James E. Boasberg: Telephone Conference held on 4/21/2020. (Court Reporter Lisa Griffith) (nbn) (Entered: 04/21/2020)
MINUTE ORDER: As discussed in todays telephonic hearing, the Court ORDERS that Plaintiffs' 61 Emergency Motion for Preliminary Injunction is DENIED. Plaintiffs are ultimately seeking relief that is either beyond the scope of their suit or has already been granted. In other words, as the Court has already enjoined Defendants to follow their Parole Directive, see ECF No. 32-33, it is unnecessary to do so again. To the extent that Plaintiffs' Motion recasts their case as one relating to conditions in the detention centers resulting from COVID19, that is beyond the scope of their suit. In addition, the recent decision in Fraihat v. ICE, see ECF No. 68-1, appears to offer Plaintiffs (and others) the relief they seek here related to the review of high-risk detainees. As discussed, Plaintiffs remain free to file a motion for contempt that contends that Defendants are currently not complying with this Court's injunction and the Parole Directive. So ORDERED by Judge James E. Boasberg on 4/21/2020. (lcjeb2) (Entered: 04/21/2020)
69 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (This document is SEALED and only available to authorized persons.)(Mesa-Estrada, Victoria) (Entered: 04/23/2020)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 69 Motion to Seal Exhibits is GRANTED. So ORDERED by Judge James E. Boasberg on 4/23/2020. (lcjeb3) (Entered: 04/23/2020)

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70 ERRATA re 61 Plaintiffs' Emergency Motion for Preliminary Injunction by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. 61 Emergency MOTION for Preliminary Injunction filed by ANGEL ALEJANDRO HEREDIA MONS, J.M.R., ADRIAN TOLEDO FLORES, P.S.P., ROLAND NCHANGO TUMENTA, DAYANA MENA LOPEZ, DOUGLAS ENRIQUE PUCHE MORENO, M.R.M.H., MIGUEL ANGEL GIRON MARTINEZ, Y.A.L., R.O.P., F.J.B.H.. (Attachments: # 1 Exhibit 1 Declaration of BAE, # 2 Exhibit 2 - Declaration of KSR, # 3 Exhibit 3 Declaration of LPC, # 4 Exhibit 4 - Declaration of OMH, # 5 Exhibit 5 - Declaration of RPH, # 6 Exhibit 6 - Declaration of SUR, # 7 Exhibit 7 - Declaration of TMF, # 8 Exhibit 8 - Declaration of YPT)(MesaEstrada, Victoria) (Entered: 04/23/2020)
71 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Jacques Metoyer (and Exhibit A and B thereto))(Simon, Jeremy) (Entered: 04/24/2020)
72 MOTION for Leave to File Excess Pages by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (MesaEstrada, Victoria) (Entered: 05/11/2020)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 72 Motion is GRANTED IN PART, and they may file a brief no longer than 50 pages. So ORDERED by Judge James E. Boasberg on 5/11/2020. (lcjeb3) (Entered: 05/11/2020)
73 MOTION for Order to Show Cause , Expedited Discovery, and Appointment of a Special Master by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (Attachments: # 1 Text of Proposed Order)(Mesa-Estrada, Victoria). Added MOTION to Expedite, MOTION to Appoint Special Master on 5/13/2020 (ztth). (Entered: 05/12/2020)

05/12/2020

74 STRICKEN PURSUANT TO THE MINUTE ORDER FILED ON 5/13/2020.....MEMORANDUM re 73 MOTION for Order to Show Cause , Expedited Discovery, and Appointment of a Special Master filed by ANGEL ALEJANDRO HEREDIA MONS, J.M.R., ADRIAN TOLEDO FLORES, P.S.P., ROLAND NCHANGO TUMENTA, DAYANA MENA LOPEZ, DOUGLAS ENRIQUE PUCHE MORENO, M.R.M.H., MIGUEL ANGEL GIRON MARTINEZ, Y.A.L., R.O.P., F.J.B.H. by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Exhibit 1A -Pre-Injunction Count and Percentage of Parole Decisions, # 2 Exhibit 1B - Post-Injunction Count and Percentage of Parole Decisions, # 3 Exhibit 1C_Total Parole Redeterminations by Detention Facility in Declarations, # 4 Exhibit 1D_Post-Injunction Parole Decisions, # 5 Exhibit 1E_Lag Time Between Detention, Parole, and Release Dates, # 6 Exhibit 1F_Pre-Injunction Credible Fear Parole Decisions, # 7 Exhibit 1G_Post-Injunction Parole Redeterminations, # 8 Exhibit 1H_Post-Injunction Parole First Time Decisions, # 9 Exhibit 1I_Pre-Injunction Count and Percentage of Parole Decisions, # 10 Exhibit 1J_Pre-Injunction Use of Flight Risk, # 11 Exhibit 1K_Pre-Injunction Parole Decisions, # 12 Exhibit 1L_Post-Injunction Use of Flight Risk for Detainees Seeking Redetermination, # 13 Exhibit 1M_Post-Injunction Parole Decisions for Detainees Seeking Redetermination, # 14 Exhibit 1N_Parole Grant Decisions by Area of Responsibility, # 15 Exhibit 1O_Date Reporting Deficiencies, # 16 Exhibit 1P_Parole Redetermination Grant Rate by Detention Facility in Declarations, # 17 Exhibit 1Q_New Orleans ICE Detention Facilities in Declarations, # 18 Exhibit 2 - Declaration of KSR, # 19 Exhibit 3 - Declaration of YPT, # 20 Exhibit 4 - Declaration of MPI, # 21 Exhibit 5 - Declaration of APE, # 22 Exhibit 6 Declaration of DAA, # 23 Exhibit 7 - Declaration of LPC, # 24 Exhibit 8 - Declaration of YMT, # 25 Exhibit 9 - Declaration of YCF, # 26 Exhibit 10 - Declaration of RCL, # 27 Exhibit 11 - Declaration of MB, # 28 Exhibit 12 - Declaration of CLH, # 29 Exhibit 13 Declaration of Bridget Crawford, # 30 Exhibit 14 - Declaration of Kari Ann Fonte, # 31 Exhibit 15 - Declaration of Peter M. Isbister, # 32 Exhibit 16 - Declaration of Joseph Giardina, # 33 Exhibit 17A Declaration of Laura Kelly, # 34 Exhibit 17B - Parole Request Filed by Laura Kelley, # 35 Exhibit 18A - Declaration of Thais Arsolino, # 36 Exhibit 18B - Parole Request Filed by Thais Arsolino, # 37 Exhibit 19 - Declaration of Katrina Huber, # 38 Exhibit 20 KSR_Three Parole Denial Letters, # 39 Exhibit 21 - Parole Denial Letter Addressed to Two Different Class Members, # 40 Exhibit 22 Sticky Note Provided to Class Member on Blank Parole Advisal,

# 41 Exhibit 23A_9560_Denial Dated Nov 8_Data Reflects Nov 5, # 42 Exhibit 23B_8836_Denial Dated Nov 18_Data Reflects Dec 13, # 43 Exhibit 23C_8835_Denial Dated Nov 18_Data Reflects Nov 15, # 44 Exhibit 23D_8811_Denial Dated Sep 14_Data Reflects Sep 24, # 45 Exhibit 23E_8785_Denial Dated Sep 24_Data Reflects Sep 30, # 46 Exhibit 23F_8618_Denial Dated Nov 8_Data Reflects Nov 5, # 47 Exhibit 23G_8188_Denial Dated Nov 8_Data Reflects Nov 5, # 48 Exhibit 23H_6610_Denial Dated Nov 27_Data Reflects Dec 6, # 49 Exhibit 23I_4496_Denial Dated Oct 23_Data Reflects Oct 22, # 50 Exhibit 23J_0743_Denial Dated Sep 27_Data Reflects Oct 3, # 51 Exhibit 23K_8813_Denial Dated Sept 24_Data Reflects Sept 30, # 52 Exhibit 23L_8813_Denial Dated Jan 5_Data Reflects Jan 29, # 53 Exhibit 23M_8813_Denial Dated Mar 17_ Data Reflects Mar 12, # 54 Exhibit 23N_8760_Denial Dated Jan 5_Data Reflects Jan 30, # 55 Exhibit 24A_Denial Not Reflected in Data, # 56 Exhibit 24B_Denial Not Reflected in Data, # 57 Errata 24C_Denial Not Reflected in Data, # 58 Exhibit 24D_Denial Not Reflected in Data, # 59 Exhibit 24E_Denial Not Reflected in Data, # 60 Exhibit 24F_Denial Not Reflected in Data, # 61 Exhibit 24G_Denial Not Reflected in Data, # 62 Exhibit 24H_Denial Not Reflected in Data, # 63 Exhibit 24I_Denial Not Reflected in Data, # 64 Exhibit 24J_Denial Not Reflected in Data, # 65 Exhibit 24K_Denial Not Reflected in Data, # 66 Exhibit 24L_Denial Not Reflected in Data, # 67 Exhibit 24M_Denial Not Reflected in Data, # 68 Exhibit 24N_Denial Not Reflected in Data, # 69 Exhibit 24O_Denial Not Reflected in Data, # 70 Exhibit 24P_Denial Not Reflected in Data, # 71 Exhibit 24Q_Denial Not Reflected in Data, # 72 Exhibit 25A - DO Failure to Consider Written Request for Parole, # 73 Exhibit 25B - DO Failure to Consider Written Request for Parole, # 74 Exhibit 25C - DO Failure to Consider Written Request for Parole, # 75 Exhibit 25D - DO Failure to Consider Written Request for Parole, # 76 Exhibit 25E - DO Failure to Consider Written Request for Parole, # 77 Exhibit 25F - DO Failure to Consider Written Request for Parole, # 78 Exhibit 25G - DO Failure to Consider Written Request for Parole, # 79 Exhibit 25H - DO Failure to Consider Written Request for Parole, # 80 Exhibit 25I - DO Failure to Consider Written Request for Parole, # 81 Exhibit 26 - Parole Advisal with Two Day Deadline to Submit Supporting Docs, # 82 Exhibit 27 - One Day Deadline to Submit Supporting Docs, # 83 Exhibit 28 - Transcript of Status Hearing (Jan. 7, 2020), # 84 Exhibit 29 - Transcript of Hearing on Emergency Preliminary Injunction (Apr. 9, 2020), # 85 Exhibit 30 - Email re_Unreported Parole Applications Constructive Denials_ Authors J. Simon & L. Lopez, # 86 Exhibit 31 - Email re_Concerns Re Status Reports_ Authors J. Simon & M. Gonzalez, # 87 Exhibit 31 - Email re_Concerns Re Status Reports_ Authors J. Simon & M. Gonzalez, # 88 Exhibit 33 Email re_Unreported Parole Applications Constructive Denials_

05/12/2020
05/13/2020 05/13/2020 05/13/2020

Authors J. Simon & L. Lopez, # 89 Exhibit 34 - Email re_Mons_ Authors J. Simon & L. Lopez, # 90 Exhibit 35 - Email re_Mons_ Authors J. Simon & L. Lopez, # 91 Exhibit 36 - Email re_Request for info_ Authors J. Simon & V. Mesa, # 92 Exhibit 37 - Email re_Request for related-COVID-19 Numbers_ Authors J. Simon & V. Mesa, # 93 Exhibit 38 - Email re_Identified Vulnerable Class Members_ Author M. Gonzalez, # 94 Exhibit 38A - Email re_Chart of Identified Vulnerable Class Members_Author M. Gonzalez)(Mesa-Estrada, Victoria) Modified on 5/14/2020 (znbn). (Entered: 05/12/2020)
75 SEALED DOCUMENT filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. re 74 Memorandum,,,,,,,,,,,,,,,,,,,,,,,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Declaration of YPT, # 2 Exhibit Declaration of MPI, # 3 Exhibit Declaration of APE, # 4 Exhibit Declaration of DAA, # 5 Exhibit Declaration of LPC, # 6 Exhibit Declaration of YMT, # 7 Exhibit Declaration of YCF, # 8 Exhibit Declaration of RCL, # 9 Exhibit Declaration of MB, # 10 Exhibit Declaration of CLH)(Mesa-Estrada, Victoria) (Entered: 05/12/2020)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 74 Memorandum is STRICKEN for violating the Court's Local Rule on excessive footnotes in what also appears to be an effort to circumvent the page limits. Plaintiffs may refile their pleading with no more than 10 footnotes containing no more than 50 aggregate lines of text. So ORDERED by Judge James E. Boasberg on 5/13/2020. (lcjeb3) (Entered: 05/13/2020)
NOTICE OF ERROR re 74 Memorandum; emailed to victoria.mesa@splcenter.org, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Please do not refile. In future, the Memorandum should be filed with the Motion. (ztth, ) (Entered: 05/13/2020)
76 MEMORANDUM re 74 Memorandum,,,,,,,,,,,,,,,,,,,,,,,,, filed by ANGEL ALEJANDRO HEREDIA MONS, J.M.R., ADRIAN TOLEDO FLORES, P.S.P., ROLAND NCHANGO TUMENTA, DAYANA MENA LOPEZ, DOUGLAS ENRIQUE PUCHE MORENO, M.R.M.H., MIGUEL ANGEL GIRON MARTINEZ, Y.A.L., R.O.P., F.J.B.H. by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO

05/21/2020 05/22/2020 05/22/2020
05/22/2020 05/22/2020 05/26/2020 05/27/2020

TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Mesa-Estrada, Victoria) (Entered: 05/13/2020)
77 MOTION to Withdraw as Attorney as to F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (Attachments: # 1 Text of Proposed Order)(Crow, Melissa); Modified event and text on 5/27/2020 (ztth). (Entered: 05/21/2020)
78 MOTION for Extension of Time to File Opposition to Plaintiffs Motion to Show Cause, for Expedited Discovery and for Appointment of Special Master by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy); Modified relief on 5/26/2020 (ztth). (Entered: 05/22/2020)
79 RESPONSE re 78 MOTION for Extension of Time to File Opposition to Plaintiffs Motion to Show Cause, for Expedited Discovery and for Appointment of Special Master filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Text of Proposed Order Plaintiffs' Opposition to Defendants Motion for Extension of Time to File Response to Plaintiffs' Motion to Show Cause)(Gonzalez, Michelle) (Entered: 05/22/2020)
MINUTE ORDER: The Court GRANTS IN PART Defendants' 78 Motion for Extension of Time and ORDERS that they shall respond by June 16, 2020. So ORDERED by Judge James E. Boasberg on 5/22/2020. (lcjeb3) (Entered: 05/22/2020)
Set/Reset Deadlines: Responses due by 6/16/2020. (znbn) (Entered: 05/26/2020)
80 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (with Ex. A and B))(Simon, Jeremy) (Entered: 05/26/2020)
MINUTE ORDER GRANTING 77 Motion to Withdraw as Attorney. The appearance of Attorney Katie Schwartzmann is terminated. So

06/08/2020 06/16/2020 06/23/2020 06/23/2020
06/29/2020 07/01/2020

ORDERED by Judge James E. Boasberg on 5/27/2020. (lcjeb3) (Entered: 05/27/2020)
81 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 06/08/2020)
82 Memorandum in opposition to re 73 MOTION for Order to Show Cause , Expedited Discovery, and Appointment of a Special Master MOTION to Expedite MOTION to Appoint Special Master filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Proposed Order, # 2 Declaration of John Hartnett)(Simon, Jeremy) (Entered: 06/16/2020)
83 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (including Ex. A and B thereto))(Simon, Jeremy) (Entered: 06/23/2020)
84 REPLY re 73 MOTION for Order to Show Cause , Expedited Discovery, and Appointment of a Special Master, re 82 Memorandum in Opposition, filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Declaration Magda Wright Declaration, # 2 Declaration Homero Lopez Declaration, # 3 Declaration Mary K. Neal Declaration, # 4 Declaration Zaida Kovacsik Declaration, # 5 Declaration Lara Nochomovitz Declaration, # 6 Exhibit Updated Parole Data)(Gonzalez, Michelle); Modified text and added docket entry relationship on 6/24/2020 (ztth). (Entered: 06/23/2020)
85 MANDATE of USCA as to 37 Notice of Appeal to DC Circuit Court, filed by MATTHEW T. ALBENCE, KEVIN K. MCALEENAN, GEORGE LUND, III, NATHALIE ASHER ; USCA Case Number 195306. (Attachments: # 1 USCA Order)(zrdj) (Entered: 06/29/2020)
86 MOTION to Strike 84 Reply to Document,, (to strike declarations to reply) or, Alternatively, MOTION for Leave to File Sur-Reply by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 07/01/2020)

07/02/2020
07/09/2020 07/15/2020 07/15/2020 07/17/2020 07/22/2020 07/22/2020 07/23/2020

87 REPLY to opposition to motion re 86 MOTION to Strike 84 Reply to Document,, (to strike declarations to reply) or, Alternatively MOTION for Leave to File Sur-Reply filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Text of Proposed Order)(Mesa-Estrada, Victoria) (Entered: 07/02/2020)
88 REPLY to opposition to motion re 86 MOTION to Strike 84 Reply to Document,, (to strike declarations to reply) or, Alternatively MOTION for Leave to File Sur-Reply filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 07/09/2020)
NOTICE of Hearing:Status Conference set for 7/17/2020 at 02:00 PM in Telephonic/VTC before Judge James E. Boasberg. (znbn) (Entered: 07/15/2020)
MINUTE ORDER: The Court ORDERS that the parties shall appear for a telephonic hearing on Friday, July 17, at 2:00 p.m. Chambers will contact the parties via email with dial-in information. So ORDERED by Judge James E. Boasberg on 7/15/2020. (lcjeb1) (Entered: 07/15/2020)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 7/17/2020. Further Status Conference set for 7/23/2020 at 03:00 PM in Telephonic/VTC before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (znbn) (Entered: 07/17/2020)
89 MEMORANDUM OPINION AND ORDER permitting limited discovery. Signed by Judge James E. Boasberg on 7/22/2020. (lcjeb1) (Entered: 07/22/2020)
90 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 07/22/2020)
MINUTE ORDER: As discussed in today's telephonic hearing, the Court ORDERS that, pursuant to ECF No. 90: 1) Defendants shall provide the following discovery: a) In Category 1, what Defendants propose except that it shall cover communications disseminated to any detention facility, not just field-office wide; b) In Category 2, what Defendants propose with "high-level" deleted and supplemented with any existing organization chart of management; c) In Category 3, Defendants shall provide the number of people who have requests for parole determination or re-determination outstanding for more than 30 days; d) In Category 4, Defendants shall provide sample parole

07/23/2020 07/23/2020 08/20/2020 08/20/2020 08/20/2020 08/20/2020

advisals, parole worksheets, and parole determinations for 1 of every 15 determinations with a minimum of 125; e) In Category 5, Defendants shall identify the types of documents relied on beyond those in Category 4; f) In Category 6, Defendants shall produce what they have agreed to produce in addition to specifying dates/locations/types of attendees at each training; and g) Defendants need not respond to Category 7; 2) Defendants shall produce for deposition one person in Categories 1 & 4, and two people in Category 2 after Plaintiffs have identified two detention facilities; 3) The timetable set forth in Section C shall govern; and 4) The parties shall submit a further joint status report by October 30, 2020. So ORDERED by Judge James E. Boasberg on 7/23/2020. (lcjeb1) (Entered: 07/23/2020)
91 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (with Ex. A and B))(Simon, Jeremy) (Entered: 07/23/2020)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 7/23/2020. Joint Status Report due by 10/30/2020. See Minute Order filed on 7/23/2020 for full details. (Court Reporter Lisa Griffith) (znbn) (Entered: 07/23/2020)
92 NOTICE of Appearance by Chelsea Kelly on behalf of THE CENTER FOR INVESTIGATIVE REPORTING, INC. (Kelly, Chelsea) (Entered: 08/20/2020)
93 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- D. Victoria Baranetsky, Filing fee $ 100, receipt number ADCDC7489492. Fee Status: Fee Paid. by THE CENTER FOR INVESTIGATIVE REPORTING, INC. (Attachments: # 1 Text of Proposed Order)(Kelly, Chelsea) (Entered: 08/20/2020)
94 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by THE CENTER FOR INVESTIGATIVE REPORTING, INC. (Kelly, Chelsea) (Entered: 08/20/2020)
95 MOTION to Intervene to Unseal Judicial Documents by THE CENTER FOR INVESTIGATIVE REPORTING, INC. (Attachments: # 1 Memorandum in Support, # 2 Declaration of D. Victoria Baranetsky, # 3 Exhibit to Baranetsky Declaration, # 4 Text of Proposed Order)(Kelly, Chelsea). Added MOTION on 8/21/2020 (ztth). (Entered: 08/20/2020)

08/20/2020

MINUTE ORDER GRANTING 93 Motion for Admission Pro Hac Vice of D. VICTORIA BARANETSKY. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 08/20/2020. (lcjeb3) (Entered: 08/20/2020)

08/24/2020

96 NOTICE of Appearance by Diana Victoria Baranetsky on behalf of CENTER FOR INVESTIGATIVE REPORTING, INC. (Baranetsky, Diana) (Entered: 08/24/2020)

08/24/2020

97 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (with Exhibits A and B thereto))(Simon, Jeremy) (Entered: 08/24/2020)

09/02/2020

98 Consent MOTION for Extension of Time to File Response to Motion to Intervene and to Unseal Judicial Documents by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/02/2020)

09/02/2020

MINUTE ORDER GRANTING Consent 98 Motion for Extension of Time. The Court ORDERS that Defendants shall file their response to The Center for Investigative Reporting, Inc.'s Motion for Leave to Intervene and to Unseal Judicial Documents by September 24, 2020. So ORDERED by Judge James E. Boasberg on 09/02/2020. (lcjeb3) (Entered: 09/02/2020)

09/02/2020

Set/Reset Deadlines: Responses due by 9/24/2020. (znbn) (Entered: 09/03/2020)

09/23/2020

99 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Metoyer Declaration (and Exhibits "A" and "B" thereto))(Simon, Jeremy) (Entered: 09/23/2020)

09/24/2020

100 RESPONSE re 95 MOTION to Intervene to Unseal Judicial Documents filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/24/2020)

09/28/2020

101 STIPULATION (Stipulated Supplement to Protective Order) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 09/28/2020)

09/28/2020

102 MOTION for Extension of Time to Complete Document Production by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/28/2020)

09/29/2020

MINUTE ORDER: If Plaintiffs oppose Defendants' 102 Motion for Extension, the Court ORDERS that they shall file such opposition by October 2, 2020. So ORDERED by Judge James E. Boasberg on 09/29/2020. (lcjeb3) (Entered: 09/29/2020)

09/29/2020

Set/Reset Deadlines: Opposition due by 10/2/2020. (znbn) (Entered: 09/29/2020)

09/29/2020

103 ORDER re 101 Stipulated Supplement to Protective Order. Signed by Judge James E. Boasberg on 09/29/2020. (lcjeb3) (Entered: 09/29/2020)

09/30/2020

104 REPLY to opposition to motion re 95 MOTION to Intervene to Unseal Judicial Documents filed by CENTER FOR INVESTIGATIVE REPORTING, INC.. (Kelly, Chelsea) (Entered: 09/30/2020)

10/01/2020

105 RESPONSE re 102 MOTION for Extension of Time to Complete Document Production filed by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Text of Proposed Order Denying Motion for Extension of Time)(MesaEstrada, Victoria) (Entered: 10/01/2020)

10/02/2020

MINUTE ORDER GRANTING IN PART and DENYING IN PART 102 Motion for Extension of Time. The Court ORDERS that Defendants shall complete their document production by October 23, 2020. So ORDERED by Judge James E. Boasberg on 10/02/2020. (lcjeb3) (Entered: 10/02/2020)

10/02/2020

Set/Reset Deadlines: Defendants shall complete their document production by 10/23/2020. (znbn) (Entered: 10/02/2020)

10/05/2020

106 ORDER: The Court ORDERS that 1) CIR's 95 Motion to Intervene and Unseal is GRANTED; 2) CIR may INTERVENE; 3) Henceforth, DHS's monthly submissions to the Court (and its public docket) shall include both a public version with personally identifiable information redacted -- i.e., the first three columns of each spreadsheet -- and a sealed version with fully unredacted spreadsheets; 4) DHS shall by October 13, 2020, file a similarly redacted version of ECF No. 99 (the most recent submission) on the docket; and 5) DHS shall by November

9, 2020, file a similarly redacted version of all other prior monthly submissions on the docket. Signed by Judge James E. Boasberg on 10/05/2020. (lcjeb3) (Entered: 10/05/2020)

10/05/2020

Set/Reset Deadlines: DHS shall by 10/13/2020, file a similarly redacted version of ECF No. 99 (the most recent submission) on the docket. DHS shall by 11/9/2020, file a similarly redacted version of all other prior monthly submissions on the docket. (znbn) (Entered: 10/05/2020)

10/13/2020

107 NOTICE of Filing of Redacted Version of ECF No. 99 by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Simon, Jeremy) (Entered: 10/13/2020)

10/23/2020

108 STATUS REPORT (Defendants' Status Report) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Metoyer Declaration (with redacted Exhibits A and B))(Simon, Jeremy) (Entered: 10/23/2020)

10/23/2020

109 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN re 108 Status Report (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Ex. A to Metoyer Declaration (unredacted), # 2 Ex. B to Metoyer Declaration (unredacted))(Simon, Jeremy) (Entered: 10/23/2020)

10/30/2020

110 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 10/30/2020)

11/02/2020

MINUTE ORDER: The Court ORDERS that a status hearing is scheduled for November 10, 2020, at 10:30 a.m. So ORDERED by Judge James E. Boasberg on 11/02/2020. (lcjeb3) (Entered: 11/02/2020)

11/02/2020

Set/Reset Hearings: Status Conference set for 11/10/2020 at 10:30 AM in Telephonic/VTC before Judge James E. Boasberg. (znbn) (Entered: 11/03/2020)

11/09/2020

111 NOTICE of Filing Pursuant to October 5, 2020 Order by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN (Attachments: # 1 Defendant Status Report (12.6.19) (Redacted), # 2 Defendant Status Rerpot (12.23.19) (Redacted), # 3 Defendant Status Report (1.29.20) (Redacted), # 4 Defendant Status Report (2.24.20) (Redacted), # 5 Defendant Status Report (3.23.20) (Redacted), # 6 Defendant Status Report (4.24.20) (Redacted), # 7 Defendant Status Report (5.26.20) (Redacted), # 8 Defendant Status Report (6.23.20) (Redacted), # 9 Defendant Status Report (7.23.20)

(Redacted), # 10 Defendant Status Report (8.24.20) (Redacted))(Simon, Jeremy) (Entered: 11/09/2020)

11/10/2020

Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 11/10/2020. Order forthcoming. A further Status Conference is set for 1/7/2021 at 10:00 AM in Telephonic/VTC before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (nbn) (Entered: 11/10/2020)

11/10/2020

MINUTE ORDER: As discussed in today's status hearing, the Court ORDERS that: 1) On the 110 Joint Status Report, in Category 2 Request, Defendants shall provide by November 17, 2020, an updated organizational chart, and in Category 3 Request, they shall provide by January 8, 2021, a snapshot as of December 31, 2020, of the number of people whose requests for initial parole determination or redetermination have then been pending for more than 30 days; 2) The parties may confer further on Category 1 and 5 Requests; 3) The depositions shall take place by December 31, 2020; 4) The parties shall submit a further joint status report on discovery by January 4, 2021; and 5) They shall return for a further status hearing on January 7, 2021, at 10:00 a.m. So ORDERED by Judge James E. Boasberg on 11/10/2020. (lcjeb3) (Entered: 11/10/2020)

11/23/2020

112 STATUS REPORT (Defendants' Status Report) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Metoyer Declaration (with redacted exhibits A and B))(Simon, Jeremy) (Entered: 11/23/2020)

11/23/2020

113 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN re 112 Status Report (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Ex. A to Metoyer Declaration (unredacted), # 2 Ex. B to Metoyer Declaration (unredacted))(Simon, Jeremy) (Entered: 11/23/2020)

12/01/2020

114 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 11-10-2020; Page Numbers: 1-26. Date of Issuance:12-1-2020. Court Reporter/Transcriber Lisa W Griffith, Telephone number 202354-3247, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced ab ove. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 12/22/2020. Redacted Transcript Deadline set for 1/1/2021. Release of Transcript Restriction set for 3/1/2021.(Griffith, Lisa) (Entered: 12/01/2020)

12/01/2020

115 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 7-23-2020; Page Numbers: 1-23. Date of Issuance:12-1-2020. Court Reporter/Transcriber Lisa W Griffith, Telephone number 202354-3247, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 12/22/2020. Redacted Transcript Deadline set for 1/1/2021. Release of Transcript Restriction set for 3/1/2021.(Griffith, Lisa) (Entered: 12/01/2020)

12/17/2020

116 MOTION for Leave to Appear Pro Hac Vice :Attorney NameChristina I. LaRocca, Filing fee $ 100, receipt number ADCDC7971862. Fee Status: Fee Paid. by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (Attachments: # 1 Declaration of Christina LaRocca, # 2 Text of Proposed Order)(Gonzalez, Michelle) (Entered: 12/17/2020)

12/17/2020

MINUTE ORDER GRANTING 116 Motion for Admission Pro Hac Vice of CHRISTINA I. LAROCCA. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 12/17/2020. (lcjeb3) (Entered: 12/17/2020)

12/18/2020

NOTICE OF ERROR re 116 Motion for Leave to Appear Pro Hac Vice; emailed to mich.gonzalez@splcenter.org, cc'd 10 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. PLEASE DO NOT REFILE. In the future, the signature on the pleading and the PACER credentials must match. (ztth, ) (Entered: 12/18/2020)

12/21/2020

117 MOTION for Leave to Appear as Counsel for Plaintiffs by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L. (Gonzalez, Michelle) (Entered: 12/21/2020)

12/22/2020

MINUTE ORDER: The Court ORDERS that Plaintiffs' counsel's 117 Motion is DENIED WITHOUT PREJUDICE as misfiled. Counsel should simply file a Notice of Appearance, not a motion. So ORDERED by Judge James E. Boasberg on 12/22/2020. (lcjeb3) (Entered: 12/22/2020)

12/22/2020 118 NOTICE of Appearance by Michelle P. Gonzalez on behalf of All Plaintiffs (Gonzalez, Michelle) (Entered: 12/22/2020)

12/23/2020

119 STATUS REPORT (Defendants' Status Report) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Metoyer Declaration (with redacted Ex. A and B))(Simon, Jeremy) (Entered: 12/23/2020)

12/23/2020

120 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN re 119 Status Report (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Ex. A to Metoyer Declaration (unredacted), # 2 Ex. B to Metoyer Declaration (unredacted))(Simon, Jeremy) (Entered: 12/23/2020)

01/04/2021

121 Joint STATUS REPORT by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Hamilton, Bruce) (Entered: 01/04/2021)

01/07/2021

Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 1/7/2021. Order forthcoming. (Court Reporter Lisa Griffith) (nbn) (Entered: 01/07/2021)

01/07/2021

MINUTE ORDER: As discussed in today's status hearing, the Court ORDERS that by January 21, 2021: 1) The parties shall submit a further Joint Status Report; 2) The Government shall provide 5 samples of the Questionnaire noted in Requests 1 & 2; 3) The Government shall check with the agency regarding the existence of documents responsive to Requests 5-7; and 4) The Government shall obtain the spreadsheet in Request 8 and explain why any information therein that is not contained in its monthly reports is not relevant. So ORDERED by Judge James E. Boasberg on 1/7/2021. (lcjeb1) (Entered: 01/07/2021)

01/21/2021

122 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 01/21/2021)

01/21/2021

MINUTE ORDER: The Court ADOPTS the parties' 122 Joint Status Report and ORDERS that they shall file a further joint status report by February 10, 2021. So ORDERED by Judge James E. Boasberg on 1/21/2021. (lcjeb1) (Entered: 01/21/2021)

01/21/2021

Set/Reset Deadlines: Joint Status Report due by 2/10/2021. (nbn) (Entered: 01/22/2021)

01/22/2021

123 STATUS REPORT (Defendants' Status Report) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Metoyer Declaration (with redacted Ex. A and B))(Simon, Jeremy) (Entered: 01/22/2021)

01/22/2021

124 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN re 123 Status Report (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Ex. A to Metoyer Declaration (unredacted), # 2 Ex. B to Metoyer Declaration (unredacted))(Simon, Jeremy) (Entered: 01/22/2021)

01/22/2021

125 MOTION to Withdraw as Attorney re Mary Bauer by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw)(Mesa-Estrada, Victoria) (Entered: 01/22/2021)

01/22/2021

MINUTE ORDER GRANTING 125 Motion to Withdraw as Attorney. The appearance of Mary Bauer is terminated. So ORDERED by Judge James E. Boasberg on 1/22/2021. (lcjeb2) (Entered: 01/22/2021)

01/22/2021

126 MOTION to Withdraw as Attorney re Laura Rivera by F.J.B.H., MIGUEL ANGEL GIRON MARTINEZ, ANGEL ALEJANDRO HEREDIA MONS, J.M.R., M.R.M.H., DAYANA MENA LOPEZ, ROLAND NCHANGO TUMENTA, P.S.P., DOUGLAS ENRIQUE PUCHE MORENO, R.O.P., ADRIAN TOLEDO FLORES, Y.A.L.. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw of Laura Rivera)(Mesa-Estrada, Victoria) (Entered: 01/22/2021)

01/25/2021

MINUTE ORDER GRANTING 126 Motion to Withdraw as Attorney. The appearance of Attorney Laura Rivera is terminated. So ORDERED by Judge James E. Boasberg on 1/25/2021. (lcjeb3) (Entered: 01/25/2021)

02/10/2021

127 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 02/10/2021)

02/11/2021

MINUTE ORDER: The Court ADOPTS the parties' 127 Joint Status Report and ORDERS that they shall file a further joint status report by February 25, 2021. So ORDERED by Judge James E. Boasberg on 2/11/2021. (lcjeb3) (Entered: 02/11/2021)

02/11/2021

Set/Reset Deadlines: Joint Status Report due by 2/25/2021. (nbn) (Entered: 02/12/2021)

02/23/2021

128 STATUS REPORT (Defendants Status Report) by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Attachments: # 1 Metoyer Declaration (with redacted Exhibits A and B))(Simon, Jeremy) (Entered: 02/23/2021)

02/23/2021

129 SEALED DOCUMENT filed by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN re 128 Status Report (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A to Metoyer Declaration (unredacted), # 2 Exhibit B to Metoyer Declaration (unredacted))(Simon, Jeremy) (Entered: 02/23/2021)

02/25/2021

130 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, GEORGE LUND, III, KEVIN K. MCALEENAN. (Simon, Jeremy) (Entered: 02/25/2021)

03/01/2021 03/01/2021

MINUTE ORDER: The Court ORDERS that the parties shall appear for a status hearing on March 4, 2021, at 11:30 a.m. So ORDERED by Judge James E. Boasberg on 3/1/2021. (lcjeb3) (Entered: 03/01/2021)
Set/Reset Hearings: Status Conference set for 3/4/2021 at 11:30 AM in Telephonic/VTC before Judge James E. Boasberg. (nbn) (Entered: 03/02/2021)

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1:19-cv-01593JEB 3.00

 Case 1:19-cv-01593-JEB Document 32 Filed 09/05/19 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HEREDIA MONS, et al.,
Plaintiffs, v.
KEVIN K. MCALEENAN, Acting Secretary of the Department of Homeland Security, et al.,
Defendants.

Civil Action No. 19-1593 (JEB)

MEMORANDUM OPINION Last summer in Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), this Court granted a preliminary injunction to a provisional class of plaintiffs who were challenging the practices of five Immigrations and Customs Enforcement field offices. Specifically, those plaintiffs successfully maintained that ICE was violating the Department of Homeland Security’s “Parole Directive,” a policy memorandum that sets forth procedural requirements for determining whether an asylum-seeker is eligible for pre-hearing release on parole. This suit offers the identical arguments – this time in relation to ICE’s New Orleans Field Office, which Plaintiffs claim has effectively rescinded the Parole Directive, even while publicly reaffirming its vitality. Rather than following the Directive, the Office is allegedly denying all asylum-seekers parole as a matter of policy. In opposing a preliminary injunction and in simultaneously moving to dismiss, the Government principally asserts that the claims of each of the named Plaintiffs here are “moot” – i.e., extinguished, given that they have either had their parole requests re-adjudicated on an individualized basis or are no longer in the custody of the New Orleans Field Office. Therefore, the Government argues, because the named Plaintiffs have

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already achieved the individualized review that they sought by bringing this lawsuit (or such review is now unavailable to them), the Court is powerless to allow this class action to proceed.
This Court is not so constrained. Even assuming that the named Plaintiffs’ claims here are moot, the Court retains jurisdiction over the proposed class. While it is true that class actions are normally moot if no named representative with an unexpired claim remains at the time of certification, see United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018), an exception applies where the alleged harms would otherwise evade review because they are “inherently transitory.” Id. Such is the case here. Defeated on their jurisdictional position, Defendants offer little beyond their Damus arguments on the merits. The Court, accordingly, will reach the same result and grant Plaintiffs’ Motion. In issuing an injunction of this nature for a second time, this Court again simply holds the Government to the policy that it purports to already be following. I. Background
A. Statutory and Regulatory Framework The Court begins with the relevant statutory and regulatory framework at issue, as it did in its prior decision on the subject of the Parole Directive. See Damus, 313 F. Supp. 3d at 323– 24. The Immigration and Nationality Act outlines the foundations of our nation’s immigration system, including the process by which noncitizens can apply for asylum. See 8 U.S.C. § 1225(b)(1)(A)(ii). If an interviewing officer determines that an asylum-seeker has a “credible fear” of persecution in her home country, that person “shall be detained for further consideration of [her] application.” Id. § 1225(b)(1)(B)(ii); see also 8 C.F.R. § 208.30(f) (describing the procedures surrounding a positive credive-fear finding). The INA, however, also offers another option besides detention, permitting the Attorney General to temporarily parole these individuals for “urgent humanitarian reasons or significant public benefit.” See 8 U.S.C. § 1182(d)(5)(A).
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Agency regulations provide that the Secretary of Homeland Security may parole asylum-seekers who are “neither a security risk nor a risk of absconding,” in the service of such “urgent humanitarian reasons or significant public benefit.” 8 C.F.R. § 212.5(b).
In 2009, DHS issued the “Parole Directive,” which further fleshes out when, precisely, it is in the “public benefit” for an asylum-seeker to be paroled. See ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009). According to the Directive, if an asylum-seeker establishes her identity and that she presents neither a flight risk nor a danger to the public, her detention “is not in the public interest,” and thus ICE “should, absent additional factors . . . parole the alien.” Id., ¶ 6.2 (emphases added). But how might ICE determine if an asylum-seeker poses a flight risk or a danger? The Directive offers a binding roadmap. First, it states 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. Next, to aid in this individualized consideration, the Directive prescribes that asylum-seekers “shall” be provided with certain procedural safeguards. See, e.g., id., ¶ 6.1. These include written notice of the parole process explained in a language they understand, a parole interview within seven days of a credible-fear finding, written notification of a parole determination, and a brief explanation of the reasoning behind any decision to deny parole. Id., ¶¶ 6.1–8.1. In sum, the Directive “establishes certain minimum procedures and processes that are to be utilized in making [parole] determinations.” Damus, 313 F. Supp. 3d at 324.
During the years immediately following implementation of the Directive, DHS released asylum-seekers on parole at a 90% rate nationwide subsequent to their credible-fear determinations. See ECF No. 2 (Complaint), ¶ 2. In 2017, then–DHS Secretary John Kelly confirmed that the Parole Directive “remain[s] in full force and effect.” Memorandum of John
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Case 1:19-cv-01593-JEB Document 32 Filed 09/05/19 Page 4 of 24
Kelly, “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies” at 10 (Feb. 20, 2017) (Kelly Memorandum). The Acting Director of the New Orleans Field Office, moreover, recently proclaimed that the Parole Directive “is still in effect in New Orleans.” ECF No. 27 (Def. MTD), Exh. A (Declaration of Scott Sutterfield), ¶ 6. Yet the percentage of asylum-seekers that that Office has released on parole has dramatically declined in recent years. The Office currently retains the lowest release rate of any jurisdiction in the country, having denied 98.5% of release requests in 2018 and 100% of requests made thus far in 2019. See ECF No. 30 (Pl. Response) at 5; Def. MTD at 4 n.4.
B. Plaintiffs’ Detentions Eleven named individuals bring the present action. Plaintiffs and those they seek to represent “all demonstrated a credible fear of persecution and are now [or previously were] in removal proceedings before the Executive Office for Immigration Review.” Compl., ¶ 1. Rather than being placed on parole during the pendency of their asylum determinations, Plaintiffs were “confined under the jurisdiction of the New Orleans ICE Field Office” at one of six immigration jails for months on end. Id., ¶ 10. In July 2018, lead Plaintiff Ángel Alejandro Heredia Mons fled Cuba with his wife to escape persecution for their refusals to participate in Communist political activities. Id., ¶ 12. DHS separated Heredia Mons from his wife at the border, transferring her to an ICE facility in Taylor, Texas, and him to the New Orleans Field Office. Id., ¶ 59. She passed a credible-fear interview in early August 2018, and DHS granted her parole later that month. Id. Heredia Mons had no such luck. After passing his credible-fear interview, he received a parole advisal in a language he does not speak, four days after the deadline to submit documents. Id., ¶ 60. He never received a parole interview. Id. The Office denied his parole request in a “form letter”
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dated September 10, 2018, and it has detained him since that date. Id., ¶ 61. The other named Plaintiffs – Miguel Ángel Giron Martinez, Douglas Enrique Puche Moreno, Adrián Toledo Flores, Dayana Mena López, M.R.M.H., P.S.P, Y.A.K., J.M.R., R.O.P., and F.J.B.H – recount similar narratives.
On June 30, 2019, the above-named Plaintiffs brought the present class action seeking to enjoin DHS’s alleged practice of categorically denying parole to asylum-seekers in contravention of the Directive. They assert that Defendants’ effective recession of the Directive is arbitrary and capricious and contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). See Compl., ¶¶ 129–33. Additionally, they allege that separate and apart from their obligations under the Parole Directive, Defendants have violated both the APA and the Due Process Clause of the Fifth Amendment to the Constitution in failing to provide individualized determinations of flight risk and danger. Id., ¶¶ 134–42.
Plaintiffs now move for a preliminary injunction, while Defendants have countered with a Motion to Dismiss. The Court heard oral argument on August 29, 2019, and issues this expedited Opinion. II. Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter, 555 U.S. at 20). “The moving party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ that the requested relief is warranted.” Hospitality Staffing
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Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 197 (D.D.C. 2010) (citing Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
Historically, these factors have “been evaluated on a ‘sliding scale.’” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). In other words, if the movant makes an “unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291–92. This Circuit has hinted, though not held, that Winter – which overturned the Ninth Circuit’s “possibility of irreparable harm” standard – establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis v. PBGC, 571 F.3d 1288, 1296 (Kavanaugh, J., concurring)); see League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016) (declining to address whether “sliding scale” approach is valid after Winter). Unresolved, too, is the related question of “whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a serious legal question on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (internal quotation and citation omitted). III. Analysis
Plaintiffs’ core contention is that the New Orleans Field Office has effectively rescinded the 2009 Directive by failing to offer asylum-seekers individualized review of their parole applications and instead denying them in summary fashion. Like the plaintiffs in Damus, they offer comparative statistics as well as affidavits from detained asylum-seekers and their counsel. For the most part, Defendants stand on the same arguments that the Court previously found wanting in Damus; indeed, they simply incorporate them by reference. See Def. MTD at 6. As a result, the Court’s analysis of the merits essentially tracks its prior articulation.
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Defendants do, however, raise one novel argument. They ask this Court to dismiss Plaintiffs’ proposed class action for lack of jurisdiction on the ground that the claims are moot. As the Court disagrees, it will grant Plaintiffs’ Motions for a Preliminary Injunction and Class Certification, while largely denying Defendants’ Motion to Dismiss. It first addresses jurisdiction, then moves to class certification and the merits of the injunction, and concludes with the Motion to Dismiss.
A. Jurisdiction The Court begins, as it must, with jurisdictional issues. It separately addresses justiciability and mootness.
Statutory Restrictions on Reviewability As a preliminary issue, the Court again rejects Defendants’ contention (incorporated by reference) that it lacks jurisdiction to review Plaintiffs’ claims because they are barred by 8 U.S.C. §§ 1252(a)(2)(B)(ii) and (f)(1). Briefly, the former provides:
[N]o 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. As this Court previously held in Damus, “[T]o the extent Plaintiffs are challenging the determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction.” 313 F. Supp. 3d at 327. The plaintiffs there and here, however, “are not challenging the outcome of ICE’s decisionmaking, but the method by which parole is currently being granted (or denied). The question, therefore, is whether such a claim falls within the scope of § 1252(a).” Id. It does not. Where plaintiffs challenge an overarching agency action as unlawful – in this case, a systemic failure to follow the Parole
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Directive – Supreme Court and Circuit precedent dictate that such a challenge does not fall within § 1252’s jurisdictional bar. See Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that challenges to “extent of the Attorney General’s authority” to indefinitely detain individuals are outside scope of § 1252(a)(2)(B)(ii)); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 176–77 (D.D.C. 2015) (holding that district courts have jurisdiction to review challenges to policies underlying detention but not discretionary determinations granting or denying bond or parole in individual cases).
Second, this Court is again unconvinced that another provision of the INA – 8 U.S.C. § 1252(f)(1) – precludes it from granting the classwide injunctive relief sought by Plaintiffs. That section provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1232], other than with respect to . . . an individual alien against whom proceedings under such part have been initiated.” As this Court noted in R.I.L-R (and Damus), § 1252(f)(1) “prohibits only injunction of ‘the operation of’ the detention statutes.” R.I.L-R, 80 F. Supp. 3d at 184 (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)). But “[w]here . . . a petitioner seeks to enjoin conduct that allegedly is not even authorized[,] . . . the court is not enjoining the operation of [the statute], and § 1252(f)(1) therefore is not implicated.” Id. (quoting Rodriguez, 591 F.3d at 1120) (internal quotations and citations omitted). Here, Plaintiffs seek to enjoin “conduct” that the INA allegedly does not authorize – viz., the Office’s flagrant disregard of the Parole Directive. Therefore, a classwide injunction in this case would not obstruct the “operation of” the detention statutes.
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Mootness The focus of the Government’s briefs here is on an issue not tackled by the Damus decision. Defendants contend that even if this Court at one time had jurisdiction to decide Plaintiffs’ claims, it no longer does so because such claims are now moot. The Constitution limits the federal courts’ jurisdiction to those claims that embody actual “[c]ases” or “[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. A “case or controversy exists when both the plaintiff and the defendant have a ‘personal stake’ in the lawsuit,” and a “plaintiff demonstrates a personal stake by establishing standing to sue, which requires . . . ‘an ongoing interest in the dispute.’” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 678–79 (2016) (Roberts, C.J., dissenting) (quoting Camreta v. Greene, 563 U.S. 682, 701 (2011)). A complaining party lacks standing, and a case is considered “moot,” “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Schmidt v. United States, 749 F.3d 1064, 1068 (D.C. Cir. 2014) (internal quotation marks omitted). Therefore, “[i]f a case becomes moot, federal courts are divested of jurisdiction over the action.” Id. According to Defendants, developments subsequent to the filing of the instant Complaint have mooted the named Plaintiffs’ claims and thereby stripped this Court of jurisdiction. First, some of the Plaintiffs are no longer in the custody of the New Orleans Field Office. Plaintiffs concede that these individuals’ claims are, in fact, moot. See, e.g., ECF No. 28 (Pl. Reply) at 9. Second, the Office has allegedly re-adjudicated the statuses of the remainder of the named Plaintiffs on an individualized basis, and it has again denied them parole. Indeed, the agency’s declarant explains, almost all of the named Plaintiffs who remain in the custody of the New Orleans Field Office have been ordered removed by an Immigration Judge. See Sutterfield Decl., ¶ 8. Some have also lost their appeals to the Bureau of Immigration Appeals and are
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therefore subject to a final order of removal. Id. Largely because of these adverse determinations, the agency concluded during the re-adjudications that the named Plaintiffs currently under the custody of the New Orleans Field Office present flight risks, and it accordingly denied them parole. Id.
Plaintiffs, for their part, contest that the detained individuals’ claims have been mooted. They first argue that the Office’s denial of all these individuals’ parole requests demonstrates that Defendants are continuing to categorically refuse parole to all asylum-seekers and are thereby flouting the demands of the Parole Directive. See ECF No. 30 (Pl. Response) at 8. They further characterize the “re-adjudications” as “shams” and offer affidavits in support of their position that the detained Plaintiffs “continue to suffer from the [New Orleans] Field Office’s unlawful policy” of ignoring the Parole Directive. See Pl. Reply at 10. They also believe that until final removal, Plaintiffs could be released – e.g., via BIA appeal or remand – and thus their claims remain live.
The Court, however, need not decide this battle of competing affidavits or even decide whether true re-adjudication occurred. Class actions are “[n]ormally . . . moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018) (emphasis added). The Supreme Court has, however, recognized certain limited exceptions to this rule, situations where a lower court may “relate [a] certification motion back’ to a date when the individual claims were live.” J.D. v. Azar, 925 F.3d 1291, 1307 (D.C. Cir. 2019) (emphasis added) (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 n.2 (2013)). Relevant here, where “claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires,” the Court has found
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such relation back appropriate. See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (emphasis added). Otherwise, such claims would be “effectively unreviewable, because no plaintiff [would] possess[ ] a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare, 569 U.S. at 76. Even assuming arguendo that the named Plaintiffs’ claims are moot, consequently, their proposed class action necessarily qualifies for this “inherently transitory” exception.
It bears mentioning at the outset that the Supreme Court specifically “crafted the exception in injunctive class actions,” such as this one, “challenging criminal and immigration detention procedures.” J.D., 925 F.3d at 1308. To provide one example, that Court has held that claims regarding certain bail-hearing practices are “inherently transitory” because “it is by no means certain that any given individual, named as plaintiff, would be in pretrial custody [awaiting a bail hearing] long enough for a district judge to certify the class.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); see also McLaughlin, 500 U.S. at 52 (same).
More recently, both the Supreme Court and the D.C. Circuit have had occasion to outline the contours of the “inherently transitory” exception in the context of challenges to current immigration-detention procedures. First, in Nielsen v. Preap, 139 S. Ct. 954 (2019), the Supreme Court reviewed a challenge to DHS’s practice of detaining without bail immigrants who had been convicted of certain crimes and were awaiting the conclusion of removal proceedings. Arguing that DHS’s policy violated the Illegal Immigration Reform and Immigrant Responsibility Act, the Preap plaintiffs brought two separate injunctive class actions seeking bail hearings for those detained individuals. Id. at 960–61. By the time of class certification, the named plaintiffs had obtained either cancellation of removal or bond hearings, and therefore the Government argued that their claims were moot. Id. at 963. A plurality of the Court, however,
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held that the class action was not moot (and therefore that the Court retained jurisdiction over the claims asserted) because at least one of the named plaintiffs in both cases faced the “threat of rearrest and mandatory detention.” Id. Of significance here, even if the plaintiffs had not faced such a threat, the cases still would not have been moot, the plurality reasoned, because the harms alleged were “transitory enough to elude review.” Id. (emphasis added). The plurality found these detention-based claims to be transitory because they end “as soon as the decision on removal is made,” id., even though such immigrants “are held on average, for one year, and sometimes longer.” Id. at 976 (Thomas J., concurring in part and concurring in the judgment) (internal quotation marks omitted).
Taking up the mantle from the Preap plurality, the D.C. Circuit recently applied the “inherently transitory” exception in certifying a class consisting of unaccompanied alien children who challenged a policy that functioned as “an across-the-board ban on access to abortion” for those minors being detained by DHS. See J.D., 925 F.3d. at 1299, 1299. There, the representative plaintiffs’ claims became moot when they left Government custody. Id. at 1307. In certifying the class, the D.C. Circuit canvassed the Supreme Court’s jurisprudence concerning the “inherently transitory” exception – including the Preap decision – and discerned the following rule:
In sum, the “inherently transitory” exception to mootness requires [courts] to determine (i) whether the individual claim might end before the district court has a reasonable amount of time to decide class certification, and (ii) whether some class members will retain a live claim at every stage of litigation. An affirmative answer to both questions ordinarily will suffice to trigger relation back. Id. at 1311. The court further adopted a flexible approach for ascertaining whether a claim “might” end before certification, requiring “reasoned supposition” based on the “practicalities” of the litigation at issue. Id. at 1310. Applying that standard, the court held that the plaintiffs –
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who were held in custody, and therefore subject to the policy, for “uncertain and unpredictable” lengths of time that averaged 3 months by the time of the court’s decision – brought “inherently transitory” claims. Id. at 1311.
This case presents a somewhat thorny variant on the “inherently transitory” exception because, as discussed above, the parties cannot agree as to when the named Plaintiffs’ claims were mooted, if at all. It is most likely that their claims remained live only from the period (lasting a maximum of six months) between their credible-fear determinations and their hearings before an Immigration Judge, at which time the parole calculus necessarily changed in character. As the Government argues, an alien facing an order of removal from an IJ presents a fundamentally different flight risk from one who is merely awaiting a hearing before an IJ, and the Parole Directive is silent as to the effect of such a decision. See Def. MTD at 15. This silence may be attributed to the fact that the procedural mandates of the Directive are generally applicable to the period immediately following the credible-fear determination. See Parole Directive, ¶ 8.2 (noting that parole interview must occur “no later than seven days” following credible-fear finding). It is also possible, as Defendants argue, that the “re-adjudications” provided to the named Plaintiffs at various points in time (usually within a few weeks of their IJ hearings) mooted their claims. Finally, Plaintiffs argue that claims of this nature remain live until an asylum-seeker’s receipt of a final order of removal, the termination of an adjudication process that can last well over a year. The Court does not accept this theory, but if it did, the claims would not be moot in the first place.
This Court thankfully need not decide precisely when the named Plaintiffs’ claims became moot – if at all – because it easily concludes that the nature of their claims is such that they “might” be mooted before certification. First, either of the events that Defendants assert
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mooted the named Plaintiffs’ claims falls within the length of time that courts from the Preap plurality to this Court have found to qualify as an “inherently transitory” period. See R.I.L.-R, 80 F. Supp. 3d at 183 (period of unlawful detention lasting weeks or months qualified for “inherently transitory” exception). Months of detention may feel unbearably lengthy to those being detained but represent a mere moment in the arena of civil litigation where, as Charles Dickens famously noted in Bleak House, a case often “drags its dreary length.”
Take, for example, Plaintiff M.R.M.H. He arrived in the United States in January 2019 and received a credible-fear determination in mid-February of 2019. See Compl., ¶ 79. He was ordered removed by an IJ on July 16, 2019, and had his parole re-adjudicated and denied on July 31. See Sutterfield Decl., ¶ 8(c). Accepting the Government’s argument that the re-adjudication mooted his claim, it remained live for about five months total and only a month and a half after the filing of the Complaint. Put differently, Defendants cannot maintain that the re-adjudications and releases at issue here mooted Plaintiffs’ claims, while simultaneously asserting that such claims will generally continue to remain “live” for over a year in order to avoid the “inherently transitory” exception.
Additionally, the “practicalities and prudential considerations” of this particular class under review demand application of the “inherently transitory” exception. As in J.D., Plaintiffs were detained without individualized parole review for “uncertain and unpredictable” periods of time, the precise length of which was entirely under Defendants’ control. J.D., 925 F.3d at 1342 (Silberman, J., dissenting) (disagreeing with the majority that the proposed class of detained unaccompanied pregnant minors brought “inherently transitory” claims, but conceding that his analysis would be different if the “average time of detention was [in] the Government’s complete control”). Even if some individuals detained by the Office might retain live claims for upwards
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of a year, the reality of the immigration-detention process makes identifying those persons in advance largely impossible. See Thorpe v. Dist. of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013) (holding that claims regarding nursing-facility placement were “inherently transitory” because “[t]he length of any individual’s stay in a nursing facility is impossible to predict, so even though there are certainly individuals whose claims will not expire within the time it would take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will be those individuals”).
Defendants also assert that the Preap plurality’s conclusion that the plaintiffs – who brought claims that generally remain live for about a year – qualified for the “inherently transitory” exception should be ignored because the plurality did not focus on the “amount of time at issue.” ECF No. 31 (Def. Reply) at 11. The Court has several responses to this argument. As an initial matter, the idea that the Preap plurality simply failed to notice the longevity of the claims involved strains credulity, especially given that two Justices dissented specifically from this aspect of the opinion. See 139 S. Ct. at 975 (Thomas, J., joined by Gorsuch, J., concurring in part and concurring in the judgment). This precise argument, moreover, was raised by the J.D. dissenting judge, see J.D., 925 F.3d at 1341–42 (Silberman, J., dissenting), but was rejected by the majority, the decision of which this Court is bound to follow. J.D., 925 F.3d at 1309. The J.D. majority instead embraced a “pragmatic” approach to the “inherently transitory” exception and outlined the factors just applied by this Court. Id. at 1310. Judge Silberman’s dissent in J.D. also advocated disregarding the time period involved in Preap and instead looking to whether the Government controls how long a claim will remain “live” (as was the case in Preap). Id. at 1341 (Silberman, J., dissenting). In this case, as noted, that factor also favors Plaintiffs.
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In any event, the named Plaintiffs here bring claims that, according to Defendants, were generally extinguished well within a year. This Court therefore need not assume that Preap sets an outer temporal bound because Plaintiffs’ proposed class does not reach it. In sum, given the realities of the claims involved here and the “practicalities” of the immigration-detention process generally, this Court has no trouble concluding that the named Plaintiffs’ claims “might end before the district court has a reasonable amount of time to decide class certification.” J.D., 925 F.3d at 1311.
Finally, the Government does not contest that Plaintiffs also satisfy the second factor necessary for invoking the “inherently transitory” exception – namely, that “some class members will retain a live claim at every stage of litigation.” Id. Plaintiffs present substantial evidence that the New Orleans Field Office continues to detain a great number of the members of the proposed class without granting them individualized parole determinations. As of this month, more than 8,000 people were in ICE custody in Louisiana and Mississippi. See Pl. Response at 13. This tide shows no sign of waning. In other words, there will continue to be people seeking parole from the New Orleans Field Office immediately following credible-fear determinations. Plaintiffs have therefore established both requirements of the “inherently transitory” exception. The Court thus relates back class certification to the date of the pleadings, at which time, as Defendants concede, the class’s claims certainly remained live.
B. Class Certification Having disposed of Defendants’ jurisdictional contentions, the Court can make quick work of the class-certification arguments it previously addressed in Damus. To obtain certification, a plaintiff must show that the proposed class satisfies all four requirements of Rule 23(a) and one of the three Rule 23(b) requirements. See Wal-Mart Stores, Inc. v. Dukes, 564
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U.S. 338, 345 (2011). According to Rule 23(a), a class may be certified only if: (1) it is so numerous that joinder of all members is impracticable (“numerosity”), (2) there are questions of law or fact common to the class (“commonality”), (3) the claims or defenses of the representative are typical of those of the class (“typicality”), and (4) the class representative will fairly and adequately protect the interests of the class (“adequacy of representation”). Plaintiffs must show, in addition, that: (1) the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent adjudications, (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole, or (3) questions of law or fact common to the members of the class predominate over any questions affecting only individual members. See Fed. R. Civ. P. 23(b)(1)–(3).
Plaintiffs’ proposed class here consists of “[(1)] [a]ll arriving asylum-seekers (2) who receive positive credible fear determinations; and (3) who are or will be detained by U.S. Immigration and Customs Enforcement; (4) after having been denied parole by the New Orleans ICE Field Office.” Compl., ¶ 120. The Court finds that this proposed class meets the conditions supplied by Rule 23 for substantially the same reasons that the Damus plaintiffs satisfied those same requirements. See Damus, 313 F. Supp. 3d at 329–35. Given that the Government does not raise any new arguments regarding class certification here, this Court will not further elaborate on the discussion of these issues it previously provided.
C. Merits of Injunction The Court turns next to the merits of Plaintiffs’ Motion for a Preliminary Injunction. They first assert that in failing to follow the Parole Directive, the New Orleans Field Office is acting contrary to law in violation of the APA. See Compl., ¶¶ 129–33. They also allege that
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Defendants have violated both the APA and the Due Process Clause by neglecting to provide individualized parole adjudications to asylum-seekers. Id., ¶¶ 134–42. As in Damus, the Court narrows its focus to Plaintiffs’ first theory, finding that it warrants injunctive relief. The discussion will first consider likelihood of success and next address irreparable harm and the public interest.
Likelihood of Success As was the case in Damus, Plaintiffs’ first APA claim is based on the “Accardi doctrine.” The doctrine takes its name from a Supreme Court decision holding that “government agencies are bound to follow their own rules, even self-imposed procedural rules that limit otherwise discretionary decisions.” Wilkinson v. Legal Servs. Corp., 27 F. Supp. 2d 32, 34 n.3 (D.D.C. 1998) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267–69 (1954)). The Supreme Court has also extended the doctrine to a challenge to a benefits determination that did not comply with the procedures set forth in an agency’s internal manual. See Morton v. Ruiz, 415 U.S. 199, 232, 235 (1974). In applying the Accardi doctrine, the high court has reaffirmed that “it is incumbent upon agencies to follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required,” particularly where “the rights of individuals are effected.” Id. at 235. In this Circuit, “Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005); see also Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies to follow their own rules, even gratuitous procedural rules that limit otherwise discretionary actions.”). Accardi does not, however, provide an unlimited means of reviewing agency action; not every agency policy is enforceable in a court of law. According to the Supreme Court, the
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enforceability of agency policies depends upon whether they impose binding norms on the agency. Vitarelli v. Seaton, 359 U.S. 535, 539–40 (1959); Service v. Dulles, 354 U.S. 363, 372 (1957). This Circuit has further clarified that “an agency pronouncement is transformed into a binding norm if so intended by the agency,” a determination that takes into account the substance and intent of the agency action, as well as whether it confers individual protections or privileges. See Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (citations omitted). In the immigration context, the Second Circuit has explained that the Accardi doctrine’s “ambit is not limited to rules attaining the status of formal regulation,” and that it can be applied to internal agency guidance. See Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991).
As this Court held in Damus, the Accardi doctrine applies to Plaintiffs’ claim that Defendants have violated the APA in failing to abide by the Parole Directive. See 313 F. Supp. 3d at 336–38. The APA empowers litigants to challenge agency action that is arbitrary, capricious, and contrary to law, see 5 U.S.C. §§ 702, 706(2), and the Accardi doctrine provides them with a means by which they can hold agencies accountable to their own policies. See, e.g., Burdue v. FAA, 774 F.3d 1076, 1082 n.2 (6th Cir. 2014) (“Under the doctrine outlined in Accardi, a party may always challenge an agency’s failure to abide by its own regulations.”) (internal citation omitted). It is clear, moreover, that Accardi claims may arise under the APA. See, e.g., Schaefer v. Geren, 607 F. Supp. 2d 61, 68–70 (D.D.C. 2009), aff'd sub nom. Schaefer v. McHugh, 608 F.3d 851 (D.C. Cir. 2010) (addressing Accardi claim pursuant to allegation that Army Board for Correction of Military Records “acted arbitrarily, capriciously, and contrary to law” in violation of APA § 706(2)(A)).
As the Court previously explained in more detail, the Parole Directive qualifies as precisely the sort of “binding” agency policy affecting individual rights to which the Accardi
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doctrine may govern. See Damus, 313 F. Supp. 3d at 337; see also Abdi v. Duke, 280 F. Supp. 3d 373, 389 (W.D.N.Y. 2017) (holding that agency cannot “avoid application of Accardi by simply disclaiming any binding effect in the [D]irective itself” and that “[t]o find otherwise would render the teachings of Accardi and its progeny meaningless”). Plaintiffs’ allegation that Defendants are neglecting “to follow their own procedures” in denying detainees parole therefore falls “well within the scope of the Accardi doctrine” and is “properly framed as a claim that the agency’s actions were ‘arbitrary, capricious, and an abuse of discretion.’” Damus, 313 F. Supp. 3d at 337.
The question to be decided here, consequently, is whether the New Orleans Field Office, like the Offices discussed in Damus, is no longer following the Parole Directive. It bears mentioning that Defendants have offered no evidence to the contrary beyond vague unsubstantiated assertions that the “[D]irective is still in effect in New Orleans.” Sutterfield Decl., ¶ 6. In fact, in claiming that in response to this litigation the named Plaintiffs have had their parole statuses re-adjudicated “in accordance with the 2009 ICE Parole Directive,” id., ¶ 8, Defendants seem to implicitly concede that such individualized review was not granted to those Plaintiffs previously.
Plaintiffs, on the other hand, offer a substantial body of evidence in support of their claim that the Office has ceased following the Directive. First, the sheer percentage of asylum-seekers denied parole by the New Orleans Field Office offers them powerful ammunition. In 2016, the Office denied parole in only 24.5% of the 229 decisions made. In 2017, that denial rate skyrocketed to 82% of 78 decisions. In 2018, it rose even higher to 98.5% of 130 decisions. See ECF No. 22 (Pl. Motion for PI) at 8; id., Exh. 1 (Declaration of Sophie Beiers) at 1–4. Finally, it has attained the unsurpassable height of a 100% denial rate this year. See Pl. Response at 5.
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These most recent denial rates are even higher than those of some of the Offices found to be out of compliance with the Directive in Damus. See 313 F. Supp. 3d at 339 (noting that during the period in question two of the challenged Offices (Los Angeles and Detroit) denied 92% and 98% of parole applications, respectively). Indeed, as of 2018, the New Orleans Field Office maintained the highest rate of parole denials of any field office in the United States. See Pl. Response at 5.
DHS generally and the New Orleans Field Office specifically have continued to proclaim, however, that the Directive “remain[s] in full force and effect,” and the Government has represented the same to the Supreme Court. See Kelly Memorandum at 8; Sutterfield Decl., ¶ 6; Pet. Suppl. Reply Br., Jennings v. Rodriguez, No. 15-1204, at 6 n.2 (filed Feb. 21, 2017). Yet Defendants offer absolutely no explanation for the precipitous nosedive in the parole-grant rates issued by an Office that has allegedly preserved the same underlying policy for making those decisions all along.
There’s more. Plaintiffs also offer a number of declarations from asylum-seekers and their advocates that describe the New Orleans Field Office’s myriad violations of the Parole Directive. These declarations attest to the automatic, rather than individualized, nature of the parole proceedings, various aspects of which run directly contrary to the guarantees provided by the Directive. For example, various declarants assert that detainees often are not notified of the availability of parole. Even when they are, they receive parole documents in a language they do not understand, and they are often not granted an interview. See, e.g., ECF No. 16 (Pl. Motion for Class Certification), Exh. 2 (Declaration of Dayana Mena López), ¶ 16; id., Exh. 1 (Declaration of Ángel Heredia Mons), ¶ 18. Sometimes the Office does not even respond to parole requests. When it does, it issues boilerplate parole denials devoid of any individualized
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explanations. See, e.g., Heredia Mons Decl., ¶ 22; Pl. Motion for Class Certification, Exh. 4 (Declaration of J.M.R.), ¶ 23; id., Exh. 6 (Declaration of R.O.P.), ¶ 21.
It should come as no surprise then that, according to the declarants, officials associated with the New Orleans Field Office have made numerous comments that suggest they no longer feel constrained by the Parole Directive. In response to Plaintiff R.O.P.’s request for an individualized parole inquiry, for example, a former Warden of one of the detention facilities under the Office’s jurisdiction responded that he could not “possibly tend to everyone.” R.O.P. Decl., ¶ 25; see also ECF No. 15, Exh. 14 (Declaration of Joseph Giardina), ¶ 17 (New Orleans ICE officer told attorney he denies parole because it would be 99% impossible for an individual to demonstrate he is not a flight risk). In response to the American Immigration Lawyers Association’s inquiry as to whether the Directive remains in effect at the New Orleans Field Office, Assistant Field Office Director Brian Acuna stated, “[T]echnically no, by Executive Order.” Compl., Exh. A. (Email from Brian Acuna to Ana Sardi) at 4. (He now retracts that statement, which he claims to have made in error. See Def. MTD, Exh. C (Declaration of Brian Acuna), ¶¶ 10–13.)
The numbers and the affidavits provide a powerful case – one the Government barely attempts to rebut – that the New Orleans Field Office no longer follows the dictates of the Parole Directive. The Court therefore finds that Plaintiffs have demonstrated a likelihood of success on the merits of their Accardi claim.
Irreparable Harm To establish the existence of this second factor necessary for the issuance of a preliminary injunction, a party must demonstrate that its injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full
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Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The injury must also be “both certain and great; it must be actual and not theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id. Like the plaintiffs in Damus, Plaintiffs here have established that they will suffer irreparable harm without injunctive relief. As the Court there noted, detention irreparably harms individuals “in myriad ways,” and the injuries at stake there and here are “beyond remediation.” 313 F. Supp. 3d at 342.
Balance of Harms and Public Interest Finally, these last two prongs pose no serious obstacle to Plaintiffs’ request for a preliminary injunction. “The public interest is served when administrative agencies comply with their obligations under the APA.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009). In fact, the Parole Directive itself states that the detention of asylum-seekers who are neither a flight risk nor dangerous is “not in the public interest” and thus requires an individualized parole determination as to whether they should be released. See Parole Directive, ¶ 6.2 (emphasis added). The Court therefore finds that these two factors also favor Plaintiffs. D. Motion to Dismiss In addition to opposing Plaintiffs’ Motion for a Preliminary Injunction, Defendants have moved to dismiss all of Plaintiffs’ claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. “The former Rule concerns subject-matter jurisdiction, the latter, ‘failure to state a claim upon which relief can be granted.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 512 (2006) (quoting Fed. R. Civ. P. 12(b)(6)). “Motions to dismiss on grounds of mootness are properly brought under Rule 12(b)(1).” Flores ex rel. J.F. v. Dist. of Columbia, 437 F. Supp. 2d 22, 27 (D.D.C. 2006). Defendants do not raise separate arguments in support of their Motion to
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Dismiss but instead refer the Court to the Damus arguments. The Court consequently reaches

the same decision.

Specifically, the analysis provided above precludes Defendants’ Motion to Dismiss

Plaintiffs’ APA claim. As already explained, their class action is not moot, and the Court’s

conclusion that Plaintiffs have demonstrated a likelihood of success on the merits of their APA

claim forecloses any argument for dismissing it. Defendants’ Motion to Dismiss Plaintiffs’ due-

process count, however, is destined for a brighter future. In Damus, after finding that the

plaintiffs had demonstrated a likelihood of success on the merits of their APA claims, this Court

dismissed their due-process count, invoking basic principles of judicial restraint. Damus v.

Nielsen, No. 18-578, 2019 WL 1003440, at *2 (D.D.C. Feb. 28, 2019). The Court sees no

reason to chart a different course in this case. Indeed, Plaintiffs have already expressed their

acceptance of this approach. See Pl. Response at 5–6. Here, as in Damus, “the merits of the

constitutional cause of action rise and fall in relevant part with the merits of Plaintiffs’ APA

claim[ ],” and the “same relief” would obtain for a violation of the APA. See Damus, 2019 WL

1003440, at *2. The Court therefore grants Defendants’ Motion to Dismiss Plaintiffs’ due-

process claim, though it does so without prejudice.

IV. Conclusion

For these reasons, the Court will grant Plaintiffs’ Motion for a Preliminary Injunction and

Class Certification and grant in part and deny in part Defendants’ Motion to Dismiss. A separate

Order so stating will issue this day.

Date: September 5, 2019

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HEREDIA MONS, et al.,
Plaintiffs, v.
KEVIN K. MCALEENAN, Acting Secretary of the Department of Homeland Security, et al.,
Defendants.

Civil Action No. 19-1593 (JEB)

ORDER For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 1. Plaintiffs’ Motion for a Preliminary Injunction is GRANTED; 2. Plaintiffs’ Motion for Class Certification dated June 28, 2019 (ECF No. 15), is
GRANTED on a provisional basis for purposes of this preliminary injunction, and Plaintiffs’ counsel are appointed as Class Counsel; 3. Defendants are hereby ENJOINED from denying parole to any provisional class members absent an individualized determination, through the parole process, that such provisional class member presents a flight risk or a danger to the community; 4. The individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class

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member’s case. Such determinations, moreover, shall not be based on categorical

criteria applicable to all provisional class members;

5. Defendants shall provide provisional class members with parole determinations that

conform to all of the substantive and procedural requirements of U.S. Immigration

and Customs Enforcement, Directive No. 11002.1, Parole of Arriving Aliens Found to

Have a Credible Fear of Persecution or Torture (Dec. 8, 2009);

6. Within seven days of this Order, the parties will meet and confer to develop a notice

that explains the requirements of this Order and provides class members with contact

information for Class Counsel;

7. Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART;

8. Count III is DISMISSED WITHOUT PREJUDICE;

9. The parties shall appear for a status conference to discuss further proceedings in the

case on September 18, 2019, at 10:30 a.m. in Courtroom 25.

IT IS SO ORDERED Date: September 5, 2019

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

2

 Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HEREDIA MONS, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KEVIN A. MCALEENAN, et al.,

)

)

Defendants.

)

Civ. A. No. 19-1593 (JEB)

STIPULATED PROTECTIVE ORDER Plaintiffs and Defendants (collectively, the “Parties”) in the above-captioned action (“Litigation” or “Action”), recognize that information about putative or confirmed class members exchanged by the Parties in the Litigation for the purpose of facilitating compliance with the Court’s preliminary injunction, including with respect to the filing of the reports referenced in the Court’s order dated October 7, 2019, may include private information related to individuals in the custody and care of the United States and that such materials may reasonably be protected from disclosure to the public or to one or more of the Parties under Rule 26(c) of the Federal Rules of Civil Procedure. The Parties desire to enter into this stipulation to facilitate the exchange of documents and information while protecting against the unauthorized disclosure of confidential documents and information. Accordingly, the parties stipulate, and it is hereby ORDERED: 1. Counsel for Defendants is hereby authorized, pursuant to 5 U.S.C. § 552a(b)(11) and consistent with 28 C.F.R. § 16.23, to release information otherwise protected from disclosure to counsel for Plaintiffs for purposes of facilitating compliance with the Court’s preliminary injunction as set forth below. No person subject to this Protective Order may disclose, in public

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 2 of 10
or private, any material designated as “PROTECED” hereunder, except as provided for in this Protective Order or as further ordered by the Court
2. Counsel for Defendant may designate as “PROTECTED” hereunder the reports filed in accordance with the Court’s order dated October 7, 2019, and counsel for the parties may designate other information as “PROTECTED” that may be exchanged between the parties in connection with this litigation (“Protected Material”), including:
a. Information, documents or tangible things protected by the Privacy Act, 5 U.S.C. § 552a, et seq., or information that would be covered by the Privacy Act if the subject of the information had been a U.S. citizen or a person lawfully admitted for permanent residence.
b. Personally Identifying Information (“PII”), including but not limited to the names, telephone numbers, and email addresses of federal employees; Protected Health Information (“PHI”); and any information that is protected or restricted from disclosure by statute or regulation.
c. All other protected documents, information or tangible things not identified above that the parties agree in writing or the Court orders qualify for protection under Federal Rule of Civil Procedure 26(c).
d. Defendants do not waive their right to assert other or further privileges over the information.

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 3 of 10
3. In designating Protected Material, the producing party so designating it shall identify the protected information with specificity in writing or by placing a “PROTECTED” label or stamp on a document or group of documents. Either party may, at any time, object to the designation of information as protected. In the event of any such objection, the designating party agrees to confer with the objecting party as promptly as practicable to attempt to resolve the objection informally. Should the designating and objecting parties be unable to resolve the objection informally, the objecting party may submit such dispute to the Court for resolution. Until the Court resolves the dispute, the information shall be treated as PROTECTED.
4. Only the following persons shall have access to or retain material designated as Protected Material pursuant to this Order:
a. The Court and its official personnel; b. Counsel for any Party and any of Defendants’ personnel with whom Counsel for
Defendants determines it is appropriate to share such information for the purpose of this litigation. For the purposes of this Protective Order, “Counsel” means the attorneys representing the Parties for this Action, including paralegals, office clerks, secretaries, law student interns, and other support staff assisting those attorneys, working on the Action; c. For Protected Material relating to an individual member of the class, to the individual class member and counsel who represent individual class members, or any prospective counsel for a class member. The individual class member and counsel shall only be provided Protected material relating to the individual class member or class members whom they represent or may represent, and the individual may not be provided any information pertaining to other class members.

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 4 of 10
d. Outside experts, consultants retained by the receiving party’s counsel to assist in this Litigation (and the experts’ or consultants’ staff whose duties and responsibilities require access to such materials);
e. Court reporters and translators; f. Outside litigation support personnel retained by Counsel to assist in the preparation
and/or litigation of the Action, including contract attorneys or outside copying service vendors or electronic document management vendors; g. Any person not otherwise covered by subparagraph (a), (b), (c), or (d) who was involved in the preparation of such material or who received or reviewed such material for purposes other than this Action or who has been alleged to have received or reviewed such material for purposes other than this Action; h. Witnesses at deposition not otherwise covered by subparagraphs (a), (b), (c) or (d); i. Persons whom the producing party agrees in writing or on the record at a deposition may be shown Protected material. 5. It shall be the responsibility of each party to bring this order to the attention of their respective outside consultants and experts to whom they disclose Protected Material, and to insure that all such persons comply with the terms of this order. 6. All Protected Material shall be clearly labeled as such and shall be returned to the party who originally produced the information or destroyed at the conclusion of this litigation (including any and all appeals); provided, however, that one copy of such material and any legal memoranda, transcripts, briefs, and work product containing protected information may be retained for archival purposes if such materials are kept in the possession of a private litigant's

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 5 of 10
counsel or in the possession of a governmental entity, and are not in the future disclosed contrary to the provisions of this order.
7. Counsel shall endeavor to avoid revealing Protected Material in any oral proceedings before the Court, including oral argument. If any counsel finds it necessary to refer to Protected Material in any such oral proceeding, that counsel shall notify the Court and all other counsel of record as soon as such necessity becomes apparent and shall propose whatever mechanism(s) may be available and appropriate to prevent disclosure of Protected Material as a consequence of such oral proceedings to persons other than those authorized by this order.
8. The Court authorizes counsel for Defendants by this Order to file under seal reports (including in chart form) referenced in the minute order dated October 7, 2019. Any party seeking to file other documents containing Protected Material under seal shall file a motion for leave to file under seal. If any party files any motion, opposition, reply or any other document prior to trial and attaches thereto or sets forth therein a record, or the relevant portion of a record that has been designated as Protected Material pursuant to this Order, the parties shall, where the Protected Material is not readily segregable from the filed document, file two copies of such document (“Version One” and “Version Two”) with the Court. Version One shall redact only the specific information designated as Protected Material pursuant to this Order and shall be filed on the public record. Version Two shall contain no redactions and shall be filed as an attachment to a motion for leave to file Version Two under seal. Where the Protected Material is readily segregable (such as, for instance, a single exhibit to a motion), only the segregable document shall be filed as an attachment to a motion for leave to file under seal as stated herein, but the remainder of the filing shall be filed on the public record.

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 6 of 10
9. Protected Material designated under this Order shall include, without limitation: (a) all copies, extracts, and complete or partial summaries prepared from such documents, things, or information so designated; (b) portions of deposition transcripts and exhibits to deposition transcripts that contain, summarize, or reflect the content of any such documents, things, or information; and (c) portions of briefs, memoranda, or any other writings filed with the Court and exhibits thereto that contain, summarize, or reflect the content of any such documents, things, or information. The Parties agree that information regarding the aggregated numbers for any category of individuals contained in the chart may be excluded from this paragraph. Moreover, a Party may make a request to the producing Party that certain material contained in such copies, extracts, and complete or partial summaries not be treated as Protected Material. The Parties will meet and confer in good faith within a reasonable amount of time of any such request to resolve the request.
10. The receiving Party’s use of any information or documents obtained from the producing Party subject to this Protective Order, including all information derived therefrom, shall be restricted to use in this Litigation (subject to the applicable rules of evidence and subject to the confidentiality of such materials being maintained) and shall not be used by anyone subject to the terms of this agreement, for any purpose outside of this Litigation or any other proceeding between the Parties, except as otherwise provided in this Order.
11. Counsel for a party, as applicable, shall promptly report any breach of the provisions of this order to the Court and the party who produced the Protected Material that was improperly divulged or compromised. Upon discovery of any breach, the party responsible for any breach shall immediately take appropriate action to cure the violation and retrieve any Protected Material that may have been disclosed to persons not covered by this order. The parties

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 7 of 10
shall also cooperate fully in any investigation of such breach conducted by the Court. Nothing contained in this order shall be deemed or relied upon to create any right or benefit, substantive or procedural, for any person or entity other than the parties to the above-captioned action.
12. By providing any document or other information in its possession, no party waives any privileges, objections, or protection otherwise afforded to it by law or equity. This Protective Order is intended to provide a mechanism for handling the disclosure or production of Protected Material to which there is no objection other than confidentiality. The protection afforded by this Order shall in no way affect a producing Party’s right to withhold or redact documents as: (a) privileged under the attorney-client or other privilege, (b) protected by the work product doctrine, or (c) otherwise exempted from discovery under Rule 26 of the Federal Rules of Civil Procedure or under any law. Additionally, this Protective Order shall not prejudice the right of a Party to: (i) seek additional protective treatment for any information it considers to be very highly sensitive, or otherwise exempt from disclosure, such that the protections in this Protective Order would be insufficient, (ii) object to the designation of any document or information as Protected Material, or (iii) seek any modification of or relief from any provision of this Protective Order, either generally or as to any particular Protected Material, by properly noticed motion with notice to all Parties and their respective counsel.
13. Pursuant to 5 U.S.C. § 552a(b)(11), the parties are hereby authorized to seek the admission into evidence at the trial of this case any materials, or the contents thereof, that are subject to this Protective Order, and nothing contained herein shall be construed as precluding Plaintiffs or Defendants from introducing any such materials, or the contents thereof, into evidence, subject to such measures as the Court may deem appropriate or necessary at that time in order to protect the privacy of the individual(s) involved.

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 8 of 10
14. Nothing contained herein shall restrict the government’s use of its records for official business or for other purposes consistent with other applicable laws and regulations.
15. The restrictions set forth in this Protective Order shall not apply to documents, things, or information that: (a) have been publicly disclosed by either Party; or (b) have been independently obtained by the receiving party through lawful means. If the producing party challenges the receiving party’s invocation of this provision, then the receiving party shall provide written documentation showing the material falls within categories of non-private information referenced in this provision. This paragraph does not purport to waive or in any other way limit any protection that exists under law, including the Privacy Act, 5 U.S.C. § 552a, et seq.
16. Any specific part or parts of the restrictions imposed by this Protective Order may be terminated at any time by an Order of the Court, and a designating party may terminate any specific part or parts of the restrictions imposed by this Protective Order with respect to documents or information designated by that party as Protected Material by letter to counsel for the opposing party.
17. This Order is without prejudice to the rights of any party to make any objection to discovery permitted by the Federal Rules of Civil Procedure, or by any statute or other authority, or to the rights of any party to make evidentiary objections at trial.
18. Nothing in this Order may be taken or construed as a ruling or statement concerning the admissibility of any documents or information.
19. This Order is without prejudice to the rights of any party to seek from the Court the modification of this Order.
Respectfully submitted, JESSIE K. LIU

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 9 of 10
D.C. Bar #472845 United States Attorney
DANIEL F. VAN HORN D.C. Bar #924092 Civil Chief
By: _______/s/___________ JEREMY S. SIMON, D.C. Bar #447956 Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.simon@usdoj.gov
Counsel for Defendant
AND
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney
________/s/________________ LUZ V. LOPEZ (pro hac vice) Senior Supervising Attorney SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org Luz.Lopez@splcenter.org
KATIE SCHWARTZMANN (pro hac vice) BRUCE HAMILTON (pro hac vice) AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org Counsel for Plaintiffs

Case 1:19-cv-01593-JEB Document 40 Filed 11/24/19 Page 10 of 10
It is so ORDERED by the Court this _____ day of November 2019. __________________________________ United States District Judge

 Case 1:19-cv-01593-JEB Document 37 Filed 11/01/19 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al., Plaintiffs,
v. Kevin K. McAleenan, et al.,
Defendants.

)

)

)

)

No. 19-cv-1593 (JEB)

)

)

)

)

)

DEFENDANTS’ NOTICE OF APPEAL
Notice is hereby given this 1st day of November, 2019 that Defendants Kevin K.
McAleenan, Acting Secretary of the U.S. Department of Homeland Security; Matthew T.
Albance, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”); Nathalie
Asher, Acting Executive Associate Director of ICE Enforcement and Removal Operations; and
George Lund III, Director of ICE’s New Orleans Field Office, hereby appeal to the United States
Court of Appeals for the District of Columbia Circuit from the Opinion and Order of the District
Court entered on September 5, 2019 (Docket Nos. 32 and 33).
Respectfully submitted,
JESSIE K. LIU, D.C. BAR No. 472845 United States Attorney
DANIEL F. VAN HORN, D.C. BAR No. 924092 Civil Chief
By: /s/ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.simon@usdoj.gov

 Case 1:19-cv-01593-JEB Document 51 Filed 01/09/20 Page 1 of 2

Case 1:19-cv-01593-JEB Document 51 Filed 01/09/20 Page 2 of 2

 Case 1:19-cv-01593-JEB Document 55 Filed 01/29/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANGEL ALEJANDRO HEREDIA MONS, et al.,
Plaintiffs, v.
CHAD WOLF, Acting Secretary, Department of Homeland Security, et al.,
Defendants.

Civil Action No. 19-1593 (JEB)

ORDER Following the Court’s status hearing of January 7, 2020, the parties submitted a Joint Status Report laying out six remaining disagreements, which the Court briefly addresses here. First, as to the dissemination of notice regarding parole applications, the Court expects that the Government will comply with all of the Parole Directive’s requirements concerning notice. Second, as to the language of notification, the Court agrees with both parties that the Government must make a telephone interpreter available who speaks the language of the detainee. Third, as to the submission of documents, the Government must continue to comply with the Parole Directive’s requirements. Fourth, as to individualized determinations, the Court at this point is not requiring a letter above and beyond the Parole Directive’s mandate. If Plaintiffs believe that Defendants are not complying with the Directive in their parole denials, however, Plaintiffs may bring a contempt motion, akin to the one under consideration in Damus, and seek, inter alia, this type of relief.

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Fifth, the Court will not require the Government at this time to provide the denial

documents Plaintiffs are requesting.

Sixth, Plaintiffs may move, as did the plaintiffs in Damus, for limited discovery, which

the Court will order in the event they can make the same type of showing the Damus plaintiffs

did regarding lack of compliance with the injunction. The Court believes it premature to order

such discovery based simply on such a status report and will require a motion.

The Court, accordingly, ORDERS that the Government shall comply with the terms

above.

IT IS SO ORDERED.

Date: January 29, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

2

 Case 1:19-cv-01593-JEB Document 2 Filed 05/30/19 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Ángel Alejandro Heredia Mons, Etowah County Detention Center, 827 Forrest Avenue, Gadsden, AL 35901;
Roland Nchango Tumenta, Dayana Mena López, Y.A.L., J.M.R., P.S.P., and R.O.P., Pine Prairie ICE Processing Center, 1133 Hampton Dupre Road, Pine Prairie, LA 70576;
Adrián Toledo Flores and Douglas Enrique Puche Moreno, Bossier Medium Security Facility, 2984 Old Plain Dealing Road, Plain Dealing, LA 71064;
M.R.M.H., LaSalle ICE Processing Center, 830 Pine Hill Road, Jena, LA 71342;
F.J.B.H., River Correctional Facility, 26362 LA-15, Ferriday, LA 71334;
Miguel Ángel Giron Martinez, Jackson Parish Correctional Center, 327 Industrial Drive, Jonesboro, LA 71251;
on behalf of themselves and others similarly situated,
Plaintiffs,
v.
Kevin K. McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, Washington, DC 20528; Matthew T. ALBENCE, Acting Director for U.S. Immigration and Customs Enforcement, in his official capacity, 500 12th Street, SW, Washington, DC 20536; Nathalie R. ASHER, Acting Executive Associate Director for ICE Enforcement and Removal Operations, in her official capacity 500 12th Street, SW, Washington, DC 20536; and George H. LUND III, Director of the ICE New Orleans Field Office, in his official capacity, c/o Office of the General Counsel Dep’t of Homeland Security, Mail Stop 4650, Washington, DC 20528,
Defendants.

) ) ) ) ) ) ) ) Civil Action No. ______ ) ) ) ) ) Class Complaint for Injunctive ) and Declaratory Relief ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:19-cv-01593-JEB Document 2 Filed 05/30/19 Page 2 of 38
CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION
1. This lawsuit is about hundreds of people who lawfully presented at official ports of entry along the Southern U.S. border to claim their right to seek asylum, only to be confined indefinitely in remote immigration jails across the Deep South. They have all demonstrated a credible fear of persecution and are now in removal proceedings before the Executive Office for Immigration Review (“EOIR”).
2. Current law denies them the right to petition immigration judges for their release from custody. Instead, they must ask their jailer, the Department of Homeland Security (“DHS”), to grant them release on parole for the duration of their asylum proceedings. Fewer than 10 years ago, DHS released roughly 90 percent of such asylum seekers. Now, release rates have plummeted to the single digits. In no jurisdiction is the release rate lower than in the New Orleans Field Office of U.S. Immigration and Customs Enforcement (“ICE”), where, across the five states under its jurisdiction—Alabama, Arkansas, Louisiana, Mississippi, and Tennessee—only two (2) of 130 release requests were granted last year.
3. A binding 2009 policy directs ICE to release such asylum seekers, provided they establish their identity and show they are not a danger or flight risk. Despite that, in November 2018, high-ranking ICE officials disavowed the agency’s obligations under the policy in response to a question from the American Immigration Lawyers Association about whether the policy remained in effect in the jurisdiction of the New Orleans ICE Field office: “Technically no, by
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Executive Order. However, there is an injunction in certain field offices outside the New Orleans AOR [Area of Responsibility].”1
4. The statement by the New Orleans ICE Field Office confirmed that this jurisdiction, like other ICE jurisdictions across the country, had effectively rescinded the 2009 policy.
5. The statement by the New Orleans ICE Field Office contradicts other public agency documents and even the agency’s representations to courts. In a February 2017 memorandum implementing an Executive Order, then-DHS Secretary John Kelly wrote that the 2009 policy “shall remain in full force and effect.”2 DHS has made the same representation before the U.S. Supreme Court.3 In the Damus v. Nielsen litigation pending before the U.S. District Court for the District of Columbia, DHS has stated in oral argument that the 2009 policy is binding upon the agency.4
6. Across the five Southern states under the command of the New Orleans ICE Field Office, hundreds of asylum seekers are incarcerated for months on end, enduring abuses in confinement in exchange for the right to press their claims in court. ICE’s refusal to consider the release of these asylum seekers on a case-by-case basis violates federal law, costs taxpayers
1 Email from Brian Acuna, New Orleans ICE Assistant Field Office Director, New Orleans ICE Field Office, to ICE Liaison, Brian Acuna to American Immigration Lawyers Association – Midsouth Chapter (Nov. 29, 2018) (attached as Ex. A). 2 See Memorandum from John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, at 10 (Feb. 20, 2017) [hereinafter Kelly Mem.], available at:https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-thePresidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf. 3 Supplemental Reply Brief for the Petitioners at 6 n.2, Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (No. 15-1204), 2017 WL 727754. 4 See Mem. Op., Damus v. Nielsen, 313 F.Supp.3d 317, 338 (D.D.C. July 2, 2018) (Boasberg, J.), ECF No. 34 at 29 (citing government’s statement at oral argument that “the Directive is, in fact, binding”).
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millions of dollars each month, and causes untold suffering to the men and women who seek legal protection inside the United States.
7. Plaintiffs bring this class action to enjoin a DHS unwritten policy and practice of categorically denying parole to asylum seekers with no individualized review of whether detention is necessary, in violation of DHS’s own directive and guidelines.
JURISDICTION AND VENUE 8. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1361 (mandamus); and 28 U.S.C. § 1651 (All Writs Act). Defendants have waived sovereign immunity pursuant to 5 U.S.C. § 702. 9. Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because multiple defendants reside in this District; a substantial part of the events or omissions giving rise to this action occurred in this District; and this District is presiding over a related case involving similar questions of law and fact. Damus v. Nielsen, 313 F.Supp.3d 317 (D.D.C. 2018).
PARTIES 10. All Plaintiffs presented at official U.S. ports of entry, sought asylum, and demonstrated a credible fear of persecution or torture. All Plaintiffs are pursuing their asylum claims before EOIR. All Plaintiffs are confined under the jurisdiction of the New Orleans ICE Field Office at one of the following immigration jails: the Pine Prairie ICE Processing Center in Pine Prairie, Louisiana (“Pine Prairie”), the LaSalle ICE Processing Center in Jena, Louisiana (“LaSalle”), the River Correctional Center in Ferriday, Louisiana (“River”), the Bossier Medium Security Facility in Plain Dealing, Louisiana (“Bossier”), the Jackson Parish Correctional Center
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in Jonesboro, Louisiana (“Jackson”), and the Etowah County Jail in Gadsden, Alabama (“Etowah”).
11. Plaintiffs appear in their individual capacity and as representatives of a proposed class, as is further discussed infra.
12. Plaintiff Angel Alejandro Heredia Mons fled Cuba with his wife to escape persecution for refusing to participate in political activities of the Communist Party. Both presented at an official U.S. port of entry in Laredo, Texas, in July 2018, and expressed their fear of returning to Cuba and their desire to seek asylum in the United States. DHS separated Mr. Heredia Mons from his wife, confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. Mr. Heredia Mons was placed in removal proceedings after his wife’s positive credible fear finding was linked to his case. He is pursuing his asylum claim before EOIR. He was denied parole despite submitting evidence of his identity, that he does not pose a danger to the public, and that he does not pose a flight risk, because he has a U.S. citizen uncle willing and able to sponsor him. He is currently detained at Etowah.
13. Plaintiff Roland Nchango Tumenta, a member of a Cameroonian opposition party seeking the independence of Southern Cameroon, presented at an official U.S. port of entry in San Ysidro, California, in September 2018. There, he expressed his fear of return and his desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole, despite submitting evidence of his identity, that he does not pose a danger to the public, and that he does not pose a flight risk, because he has a permanent resident uncle willing and able to sponsor him. He is currently detained at Pine Prairie.
14. Plaintiff Dayana (legal name Dairo Mena López), a Cuban political dissident and transgender woman, fled Cuba after police tortured her for her political beliefs and gender identity.
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In January 2019, she presented at an official U.S. port of entry in El Paso, Texas, expressed her fear of returning to Cuba, and indicated her wish to seek asylum in the United States. DHS confined her at the border, then transferred her to the custody of the New Orleans ICE Field Office. She passed a credible fear interview and is pursuing her asylum claim before EOIR. She has been denied access to the parole process, despite having evidence that she does not pose a danger to the public and that she does not pose a flight risk, because a U.S. citizen is ready and willing to sponsor her. She is currently detained at Pine Prairie.
15. Plaintiff M.R.M.H. fled Honduras because a Transnational Criminal Organization tortured him, breaking his foot and jaw, and threatened him with death. In December 2018, he presented at an official U.S. port of entry in San Ysidro, California. There, he expressed a fear of returning to Honduras and his desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole five times, despite submitting evidence of his identity, that he does not pose a danger to the public, and that he does not pose a flight risk, because a U.S. citizen is willing and able to sponsor him. He is currently detained at LaSalle.
16. Plaintiff P.S.P., a physician, fled Cuba because government agents were demanding that he harm patients for political reasons. In October 2018, he presented at an official U.S. port of entry in Laredo, Texas, expressed his fear of returning to Cuba, and indicated his desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He has been denied access to basic information about the parole process, despite many requests from him and his U.S. citizen sister. He has evidence to establish his identity, that he does not pose a danger to the public, and that he does not pose a flight risk,
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because his U.S. citizen sister is ready and willing to sponsor him. P.S.P. is currently detained at Pine Prairie.
17. Plaintiff Y.A.L., a Cuban political dissident, presented at an official U.S. port of entry in Brownsville, Texas, in October 2018. There, he expressed his fear of return to Cuba and his desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole despite submitting evidence of his identity, that he is not a danger to the public, and that he is not a flight risk, because his permanent resident wife is ready and willing to sponsor him. He is currently detained at Pine Prairie.
18. Plaintiff Miguel Ángel Girón Martínez is a student activist and a member of an opposition political party in Honduras. He fled after suffering persecution for his political work. In January 2019, he presented at an official U.S. port of entry in San Ysidro, California, and expressed a fear of return to Honduras and a desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He has been denied access to the parole process, despite trying to submit evidence that he is neither a danger to the public nor a flight risk, because a U.S. citizen is ready and willing to sponsor him. He is currently detained at Jackson.
19. Plaintiff Douglas Enrique Puche Moreno, a Venezuelan political dissident, presented at an official U.S. port of entry in Laredo, Texas, in September 2018. There, he expressed a fear of returning to Venezuela and a desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He
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was denied parole despite establishing his identity, that he is not a danger to the public, and that he is not a flight risk, because a U.S. citizen is ready and willing to sponsor him. He is currently detained at Bossier.
20. Plaintiff Adrián Toledo Flores, a Cuban political dissident, presented at an official U.S. port of entry in Brownsville, Texas, in October 2018. There, he expressed a fear of returning to Cuba and a desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole before having the opportunity to submit evidence in support of his parole application. Since then, he has submitted evidence of his identity, that he does not pose a danger to the public or a flight risk, because his permanent resident family are ready and willing to sponsor him. However, ICE has failed to issue a parole decision to him. He is currently detained at Bossier.
21. Plaintiff J.M.R., a conscientious objector who refused military service in Cuba, presented at an official U.S. port of entry in Hidalgo, Texas, in July 2018. There, he expressed a fear of return to Cuba and a desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole despite submitting evidence of his identity, that he is not a danger to the public, and that he is not a flight risk, because his U.S. citizen uncle is ready and willing to sponsor him. He is currently detained at Pine Prairie.
22. Plaintiff R.O.P. a physician, fled Cuba after authorities demanded that he harm patients for political reasons. He presented at an official U.S. port of entry in Laredo, Texas, in July 2018. There, he expressed a fear of return to Cuba and a desire to seek asylum in the United States. DHS confined him at the border, then transferred him to the custody of the New Orleans
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ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole despite submitting evidence that he is neither a danger to the public, nor a flight risk, because his U.S. citizen fiancée is ready and willing to sponsor him. He is currently detained at Pine Prairie.
23. Plaintiff F.J.B.H. fled Honduras with his girlfriend and her son due to persecution by gang members affiliated with the ruling political party. They traveled with the migrant caravan and presented at an official U.S. port of entry in San Ysidro, California, in December 2018. There, F.J.B.H. and his girlfriend expressed a fear of return to Honduras and their desire to seek asylum in the United States. DHS separated him from his family, confined him at the border, then transferred him to the custody of the New Orleans ICE Field Office. He passed a credible fear interview and is pursuing his asylum claim before EOIR. He was denied parole despite submitting evidence of his identity, that he is not a danger to the public, and that he is not a flight risk, because his U.S. citizen aunt and uncle are ready and willing to sponsor him. He is currently detained at River.
24. Defendant Kevin K. McAleenan is sued in his official capacity as the Acting Secretary of the Department of Homeland Security (“DHS”). In this capacity, he directs each of the component agencies within DHS, including U.S. Immigration and Customs Enforcement (“ICE”). Defendant McAleenan is responsible for the administration of immigration laws and policies pursuant to 8 U.S.C. § 1103, including those laws and policies regarding the detention and release on parole of arriving asylum seekers.
25. Defendant Matthew T. Albence is sued in his official capacity as Acting Director of ICE, the sub-agency that operates the government’s immigration detention system. In this capacity, Defendant Albence directs the administration of ICE’s detention policies and operations,
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including those policies and operations regarding the detention and release on parole of arriving asylum seekers.
26. Defendant Nathalie R. Asher is sued in her official capacity as Acting Executive Associate Director of ICE Enforcement and Removal Operations. In this capacity, Defendant Asher is responsible for implementing the administration’s detention policies and operations, including those policies and operations regarding the detention and release on parole of arriving asylum seekers.
27. Defendant George H. Lund III is sued in his official capacity as Acting Director of the New Orleans ICE Field Office. In this capacity, Defendant Lund is responsible for ICE detention policies and operations—including those regarding the detention and release on parole of arriving asylum seekers—in the area of responsibility of the New Orleans District, which stretches across Alabama, Arkansas, Louisiana, Mississippi, and Tennessee.
FACTUAL BACKGROUND A. Legal Framework Governing Arriving Asylum Seekers’ Release from
Custody. 28. Since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), a person who arrives at an official U.S. port of entry without proper entry documents, or who attempts to enter through fraud is normally subject to expedited removal, a summary proceeding with no hearing and no opportunity for judicial review. 8 U.S.C. § 1225(b)(1)(A)(i). 29. However, in cases where the person expresses a fear of persecution in her or his country of origin, or the intention to apply for asylum, an asylum officer must interview her or him to determine whether there is a “significant possibility” that she or he is eligible for asylum—in
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other words, whether her or his fear is credible. Such interviews are called credible fear interviews (“CFIs”). 8 U.S.C. §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B)(v).
30. Once an asylum officer determines a person has a credible fear of persecution, the expedited removal proceeding is terminated, and the person is placed in “full” removal proceedings so an immigration judge can adjudicate her or his asylum claim. 8 U.S.C. § 1229a(a)(1).
31. For purposes of this complaint, persons who presented at ports of entry and were found to have a credible fear are “Arriving Asylum Seekers.”
32. By statute, Arriving Asylum Seekers “shall be detained for further consideration of the[ir] application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). The statute “mandates” the detention of Arriving Asylum Seekers “throughout the completion of applicable proceedings,” including asylum hearings before immigration judges. Jennings v. Rodriguez, 138 S. Ct. 830, 845 (2018).
33. By law, Arriving Asylum Seekers are deprived of the right to petition an immigration judge for their release from custody. 8 C.F.R. § 1003.19(h)(2)(i)(B).
34. Instead, the only administrative avenue for release for Arriving Asylum Seekers throughout their immigration proceedings is to petition DHS, the very agency that made the determination to confine them, for release on parole.
35. Congress established the parole process as a means for noncitizens seeking admission to the United States, including Arriving Asylum Seekers, to obtain temporary release from custody. As now codified, Congress has instructed the Attorney General to make parole determinations “on a case-by-case basis for urgent humanitarian reasons or significant public benefit” (hereinafter, “the Parole Statute”). 8 U.S.C. § 1182(d)(5)(A).
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36. The Attorney General delegated this authority to the Secretary of Homeland Security, who in turn has delegated it to DHS’s three component agencies: Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), and Immigration and Customs Enforcement (“ICE”). 8 C.F.R. § 212.5. ICE has parole jurisdiction over persons in removal proceedings.5
37. The regulations promulgated to implement the Parole Statute prescribe five categories of noncitizens who qualify for parole for “urgent humanitarian reasons” or “significant public benefit,” two of which are most relevant to this case: (1) those with “serious medical conditions for whom continued detention would not be appropriate,” and (2) those “whose continued detention is not in the public interest.” 8 C.F.R. § 212.5(b); see also 8 C.F.R. § 235.3(c).
38. Shortly after IIRAIRA’s enactment, in December 1997, the Immigration and Naturalization Service (“ICE”) set forth guidelines for field offices to make parole determinations for Arriving Asylum Seekers, stressing that “[p]arole consideration for detainees who meet the credible fear standard, and accurate statistics on parole, are critical to the success of the expedited removal program.”6
39. In 2005, an independent government commission found that Arriving Asylum Seekers’ chances of winning release on parole varied drastically depending on the jurisdiction in which they were confined.7 While the Harlingen field office released 97.6 percent of asylum
5 Memorandum of Agreement Between USCIS, ICE, and CBP for the purpose of Coordinating the Concurrent Exercise by USCIS, ICE, and CBP, of the Secretary’s Parole Authority Under INA § 212(d)(5)(A) with Respect to Certain Aliens Located Outside of the United States (September 2018), available at: https://www.ice.gov/doclib/foia/reports/parole-authority-moa-9-08.pdf. 6 U.S. Commission on International Religious Freedom, “Report on Asylum Seekers in Expedited Removal,” Vol. II at 97-100 (Feb. 8, 2005) [hereinafter Report on Asylum Seekers in Expedited Removal], available at: https://www.uscirf.gov/sites/default/files/resources/stories/ pdf/asylum_seekers/ERS_RptVolII.pdf. 7 “Report on Asylum Seekers in Expedited Removal,” Vol. I at 22.
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seekers before their asylum hearing, the New Orleans field office released just 0.5 percent.8 The
commission recommended that DHS take steps to promote “more consistent implementation of parole criteria.”9
40. DHS then issued guidance on parole in 2009 to address these concerns (“2009
Parole Directive”). In conformity with the Parole Statute, the 2009 Parole Directive provides that
parole is in the “public interest,” and should be granted to Arriving Asylum Seekers who establish
their identities, pose neither a flight risk nor a danger to the community, and for whom no additional factors weigh against their release.10
41. The 2009 Parole Directive’s stated purpose “is to ensure transparent, consistent,
and considered ICE parole determinations for arriving aliens seeking asylum in the United States.”11 To that end, it instructs ICE Detention and Removal Operations field offices to follow
detailed procedures in making parole determinations and establishes reporting requirements “to
ensure accountability and compliance with [its] procedures.”
42. In particular, the Parole Directive requires: a. Automatic consideration for parole upon passing of CFI.12
b. Timely notification. ICE must provide Arriving Asylum Seekers with a Parole Advisal and Scheduling Notification (“Parole Advisal”). Parole Directive §§ 6.1, 8.1. The Parole Advisal must be provided to Arriving Asylum Seekers “as soon as practicable,” after a positive credible fear finding. Parole Directive §§ 6.1, 8.1.
8 Id. at 62. 9 Id. at 67. 10 Parole Directive ¶ 6.2; see Fact Sheet, “Revised Parole Policy for Arriving Aliens with Credible Fear Claims,” U.S. Immigration and Customs Enforcement (Dec. 16, 2009) [hereinafter 2009 Parole Directive Fact Sheet], available at: https://www.ice.gov/factsheets/credible-fear. 11 ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_ of_arriving_aliens_found_credible_fear.pdf. 12 2009 Parole Directive Fact Sheet.
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c. Notification in a language Arriving Asylum Seekers understand. “The contents of the notification shall be explained” in a language the Arriving Asylum Seeker understands, and if necessary, through an interpreter. Parole Directive §§ 6.1, 8.1.
d. Time to submit documents in support of parole, and instructions on where to submit them. The notification must include a deadline to submit documents and instructions for how to submit them. Parole Directive § 8.1.
e. Timely parole interviews by officers familiar with legal requirements for parole. DRO officers familiar with the 2009 Parole Directive and related legal authorities, must interview Arriving Asylum Seekers to assess their eligibility for parole, no later than seven days after a positive credible fear finding. Parole Directive § 8.2.
f. Brief explanation of reasons for denial. If the DRO officer denies parole, he or she must write a letter to the Arriving Asylum Seeker briefly explaining the reasons for denying parole. This letter is in addition to the Parole Determination Worksheet, and must be forwarded to a supervisory officer for review. Parole Directive § 8.2.
43. The 2009 Parole Directive also requires DRO officers to apply certain criteria to
their determinations about identity, flight risk, and safety risk, including:
a. Identity. DRO officers must review all relevant documentation offered by Arriving Asylum Seekers, as well as “any other information available” about them, to determine whether they have established their identities. 2009 Parole Directive § 8.3(1)(b).
b. Alternative ways to establish identity. If an Arriving Asylum Seeker is lacking governmentissued identification, the DRO officer should ask whether he or she can obtain it. If the Arriving Asylum Seeker cannot, he or she “can provide for consideration sworn affidavits from third parties.” If those are not available, the DRO officer “should explore whether” the Arriving Asylum Seeker may establish his or her identity through credible statements. 2009 Parole Directive § 8.3(1)(b).
c. Flight risk. Arriving Asylum Seekers must provide an address where they will reside upon release. DRO officers are to consider such factors as community and family ties, prior criminal history, ability to post bond, alternatives to detention, property ownership, and possible relief from removal.
d. Safety Risk. Arriving Asylum Seekers must show they do not pose a risk to public safety. DRO officers must consider evidence of rehabilitation for persons with prior offenses or disciplinary infractions.
e. Additional Factors. ICE agents may, but need not, consider “exceptional, overriding factors” such as “serious adverse foreign policy consequences” or “overriding law enforcement interests.” 2009 Parole Directive § 8.3(4)(a).
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44. In February 2017, then-DHS Secretary John Kelly stated that the Parole Directive “shall remain in full force and effect.”13
45. DHS has not revoked, withdrawn, or amended the Parole Directive since former Secretary Kelly’s statements.
46. One day after former Secretary Kelly’s statements, government litigators represented to the Supreme Court of the United States that the 2009 Parole Directive remains “in full force and effect,” emphasizing that it generally requires DHS “to release the alien if he establishes his identity [and] demonstrates that he is not a flight risk or danger,” and requires an individualized analysis that “calls for far more than checking a box on a form.”14
47. In July 2018, the government represented to a federal judge in the District of Columbia that the 2009 Parole Directive is binding.15
B. DHS Has Effectively Rescinded the 2009 Parole Directive in the New Orleans ICE Field Office, Denying Parole to More Than 98 Percent of Arriving Asylum Seekers.
48. Since the Trump Administration took office in 2017, DHS has effectively rescinded the 2009 Parole Directive in the New Orleans ICE Field Office, denying parole in virtually all cases in 2018.
49. Despite the representations of federal officials, including then-DHS Secretary Kelly and government lawyers litigating a similar case before this Court, the New Orleans ICE Field Office has effectively declared that the 2009 Parole Directive is no longer in effect.
13 See Kelly Mem. at 10. 14 Supplemental Reply Brief for the Petitioners at 6 n.2, Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 15 See Damus, 313 F.Supp.3d at 338 (citing government’s statement at oral argument that “the Directive is, in fact, binding”).
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50. In November 2018, a top-ranking ICE official answered a question from the American Immigration Lawyers Association Midsouth Chapter thusly: 16
51. Since 2016, parole rates in the New Orleans ICE Field Office have sharply dropped, reflecting DHS’ effective rescission of the 2009 Parole Directive in that jurisdiction.
52. From 2016 through 2018, the rate of parole grants in the New Orleans ICE Field Office has dropped by more than 73 points.
53. According to ICE data, in 2016, the New Orleans ICE Field Office granted parole in 75.9 percent of cases.
54. In 2017, the New Orleans ICE Field Office granted parole in only 21.9 percent of cases, a decline of 54 percentage points.
55. In 2018, the New Orleans ICE Field Office granted parole in only 2 out of the 130 cases in which it made determinations, or in fewer than 2 percent of all cases.
56. Since 2016, the rate of cases granted parole in the New Orleans ICE Field Office has decreased from 75.9 to 1.5 percent.
57. The parole grant rate of the New Orleans ICE Field Office in calendar year 2018 was the lowest of any field office in the country.
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C. The New Orleans ICE Field Office Engages in Sham Parole Reviews and Blanket Denials of Parole, Causing Plaintiffs and Proposed Class Members Irreparable Harm.
58. Defendants’ policy and practice of denying parole in nearly all cases is causing the Plaintiffs and proposed class members numerous irreparable harms, including subjecting them to arbitrary and prolonged detention.
59. Mr. Heredia Mons has been confined by DHS for more than ten months. He fled Cuba because he was persecuted for refusing to participate in political activities. He and his wife sought asylum in Laredo, Texas, in July 2018 and were detained separately. She was confined at the T. Don Hutto Residential Center in Taylor, Texas; he was sent to Bossier. She passed her credible fear interview in early August 2018, and was granted parole on August 24, 2018. She has requested that her asylum case be consolidated with Mr. Heredia Mons’s case. ICE continues to detain him.
60. After Mr. Heredia Mons passed his credible fear interview, he received a parole advisal in English, a language he does not speak. The proof of service was dated September 8, 2018. The deadline for him to submit documents was September 4, 2018—four days before the date on the proof of service. The advisal promised a parole interview. He never received one.
61. Thereafter, Mr. Heredia Mons submitted documents in support of his parole request that were substantially similar to those his wife had submitted. The documents included: a letter from his sponsor—who is his uncle, as well as the sponsor’s proof of U.S. citizenship, address, and income; Mr. Heredia Mons’ marriage certificate; and a letter from his wife’s attorney offering to represent Mr. Heredia Mons if he were released from ICE custody. ICE denied Mr. Heredia Mons parole in a form letter dated September 10, 2018. The ICE official marked two checkboxes:
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flight risk and “exceptional factors,” which the official explained as: “You are an enforcement priority.”
62. Mr. Heredia Mons’ prolonged detention has significantly restricted his ability to adequately prepare for and pursue his claim.17 Representation is crucial to prevailing on an asylum claim;18 yet because he was confined, Mr. Heredia Mons was unable to avail himself of the legal representation offered by his wife’s attorney. Because he was confined, ICE’s blanket parole denial policy deprived Mr. Heredia Mons of access to information about and assistance from the few attorneys offering legal representation to people detained at Bossier.
63. Ms. Mena Lopez, a trans woman, has been confined by DHS for four months. In Cuba, she lived openly as a trans woman and refused to complete compulsory military service. Cuban authorities misidentified her as a gay man and attempted to force her to serve in the military. Due to her political beliefs and identity, Cuban authorities have beaten her, taunted her with homophobic slurs, locked her in a frigid chamber for hours, and held her under arrest.
64. Once inside the United States, Ms. Mena Lopez passed her credible fear interview. On February 28, 2019, she was served with a parole advisal. The proof of service was back-dated to the previous day. The deadline on the parole advisal for submitting documents was February 28, 2019, the same day she received it. While the advisal promised a parole interview on March 1, 2019, she has yet to receive a parole interview.
17 Plaintiffs’ First Amended Complaint at 29, SPLC v. DHS, No. 18-cv-00760-CKK (D.D.C. Oct. 31, 2018), ECF No. 49-2 (“just two percent of detained pro se immigrants obtain successful outcomes in their removal proceedings,” versus “seven percent of pro se immigrants who were released from custody and 17 percent of pro se immigrants who were never detained”). 18 See, e.g., id. at 4 (detained immigrants with representation are ten-and-a-half times more likely to succeed in removal case than pro se detainees); Eagly & Shafer, supra note 21, 49; TRAC Immigration, Asylum Representation Rates Have Fallen Amid Rising Denial Rates (Nov. 28, 2017) (reporting government data showing represented asylum seekers are five times more likely to win asylum than pro se litigants), available at: http://trac.syr.edu/immigration/reports/491/.
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65. In ICE custody, Ms. Mena Lopez has been subjected to prolonged periods of solitary confinement against her will on account of her gender identity. Upon entering the United States at El Paso, Texas, she was placed in isolation because she is trans. After experiencing isolation, she decided to try to pass as a gay man to avoid any future segregation. Upon transfer to Cibola County Correctional Center in Milan, New Mexico, she passed as a gay man and was assigned to the general population. She did not know that it was possible to live alongside other trans women at Cibola. Then, when she was transferred to the Tallahatchie County Correctional Facility in Tutwiler, Mississippi (“Tallahatchie”), to await a credible fear interview, she was again identified as trans and isolated for a month. At that point, she cut her hair in a bid to again pass as a gay man. At Pine Prairie, she was initially placed in the general population. When she disclosed to a psychologist that she is trans, she was placed in isolation for several days. While in isolation, Ms. Mena Lopez was shackled whenever she left her cell, and her access to recreation, the law library, and religious services was restricted.
66. Because of the grueling conditions in isolation, she requested transfer back to the general population, where she now suffers from constant threats, insults, and humiliation. In May 2019, attorneys asked ICE to transfer her to Cibola for placement in its dedicated unit for trans women. That request has gone unanswered. Every day Ms. Mena Lopez is confined compounds the physical, mental, and emotional harm she suffers from confinement as a trans woman and trauma survivor.19
19 See, e.g., Physicians for Human Rights, Punishment Before Justice: Indefinite Detention in the U.S., at 7-11, 26-27 (2011), available at: https://s3.amazonaws.com/PHR_Reports/indefinitedetention-june2011.pdf (noting confinement correlates with feelings of “helplessness and hopelessness that lead to debilitating depressive symptoms, chronic anxiety, despair, dread,” Post-Traumatic Stress Disorder, and suicidal ideation, and asylum seekers are particularly vulnerable because confinement may exacerbate past trauma); Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health
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67. Mr. Toledo Flores has been confined by ICE for over seven months. A pharmacy technician, Mr. Toledo Flores fled Cuba following reprisals for defying orders from Cuban officials to harm clients for political reasons. Specifically, Mr. Toledo Flores refused to withhold prescription medication from a client; in retaliation, Cuban officials interrogated and beat him, fired him from his job, and prevented him from obtaining other pharmacy work. Cuban officials came to his house, threatened him, and pushed his girlfriend, who was pregnant at the time.
68. Mr. Toledo Flores and his girlfriend fled Cuba in October 2018, and sought asylum in the United States. They were detained separately. While Mr. Toledo Flores’ girlfriend was released from detention, he was sent to jails in Port Isabel, Texas, and Tallahatchie, Mississippi, where he passed his credible fear interview. Thereafter, Mr. Toledo Flores was served with a parole advisal in English, a language he does not understand. The advisal set a deadline of November 14, 2018 to submit a parole request and supporting documents.
69. While he languished in detention, Mr. Toledo Flores’ daughter was born in Florida, in early November 2018.
70. Thereafter, Mr. Toledo Flores was moved to Bossier. A few days after arriving, he received another document in English: a parole denial form letter dated November 14, 2018, the same date that ICE had indicated he would need to submit documents in support of his parole request. He never received a parole interview, and was unable to submit documents before the deadline.
71. Mr. Toledo Flores did not come to understand the contents of the parole advisal and the form letter until after the November 14, 2018 deadline. Nevertheless, on two occasions
Consequences of Detention for Asylum Seekers at 2 (2003) (finding most detained asylum seekers experienced symptoms of depression or anxiety, and half had symptoms of PTSD).
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thereafter, his family and attorney have submitted documents in support of parole, including: a Cuban certification that he had no criminal record; tax documents and proof of address, identity, and permanent residency of his sponsor; an offer of employment; letters of support from permanent resident family members; and his daughter’s birth certificate.
72. Since Mr. Toledo Flores’ family submitted these documents, ICE has failed to reconsider his parole request. ICE has also failed to return calls from Mr. Toledo Flores’ girlfriend inquiring into the possibility of his release.
73. Because of Mr. Toledo Flores’ prolonged detention in rural Louisiana, he has not been able to meet his daughter, a U.S. citizen who is now six months old. He has not been able to work to support his daughter and girlfriend. He and his family have been denied visitation privileges at Bossier. His isolation from family and friends, coupled with his conditions of confinement, have significantly harmed his mental health. He now suffers from depression and has developed insomnia.
74. Y.A.L. fled Cuba in October 2018, after Cuban police detained and assaulted him, fabricated charges against him for so-called anti-government acts, and threatened to make him disappear.
75. Upon indicating his intent to seek asylum in the United States, Y.A.L. was detained and transferred to Tallahatchie, Mississippi, where he passed his credible fear interview. Thereafter, he received a parole advisal and scheduling notification in English with no proof of service date. The parole advisal set a deadline of October 18, 2018, to submit documents, and indicated that his interview had been scheduled for November 17, 2018. Due to lack of access to legal representation, Y.A.L. did not understand the instructions and could not submit documents by the deadline. He never received a parole interview.
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76. On January 3, 2019, Y.A.L. sought release on parole with the assistance of a lawyer. The request was based on two grounds: the 2009 Parole Directive and urgent humanitarian concerns. The request complied with the requirements of the 2009 Parole Directive and included: a letter of support from his sponsor, his wife, who is a permanent resident; and proof of the address in Miami where, if released, he would live with his wife and the two children they had raised as a family for ten years. In support of the humanitarian ground, he filed medical records showing he suffers from gout, and that his condition had deteriorated significantly in ICE custody. ICE denied the request in a form letter dated January 10, 2019. Several flight risk boxes were checked: failure to establish substantial ties to the community, and that no amount of bond could ensure his appearance.
77. ICE has failed to provide Y.A.L. with adequate medical care at Pine Prairie, causing significant harm to his health. Prior to being detained, Y.A.L. managed his gout successfully with medication and diet. In ICE custody, he has lost the ability to walk. He suffers from swelling, redness, and extreme pain in his extremities. He cannot independently bathe or use the toilet, and relies on other detained men for assistance. He is confined to a wheelchair. Despite many requests to detention officials, he has been continuously deprived of a medically appropriate diet and adequate medical treatment. The longer he remains detained, the more his pain and suffering intensifies.
78. M.R.M.H., 18, has been confined by DHS for nearly five months. Before fleeing Honduras, he survived two assaults by MS-13 members that left him with a broken foot and jaw. On his journey north, in Mexico, he suffered another attack. Upon arrival in the United States, he was detained at the border and transported to Tallahatchie, Mississippi, where he waited about six weeks to take and pass his credible fear interview.
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79. Only two days after receiving his credible fear determination, M.R.M.H. received a parole denial letter, dated February 16, 2019. He had never received a parole advisal or been informed of any deadline to submit supporting documents.
80. With legal assistance, he sought parole reconsideration three times. The requests complied with the 2009 Parole Directive. The first, filed on March 4, 2019, included his birth certificate; letters of support from three U.S. citizens, two of whom were willing to serve as sponsors; and the sponsors’ proof of address and income. ICE denied parole in a form letter dated March 20, 2019. Two checkboxes were marked: flight risk, with no amount of bond ensuring appearance, and failure to show changed circumstances since his first parole denial.
81. On April 7, 2019, while M.R.M.H. was in ICE custody at the River facility, he experienced an allergic reaction to food and went into anaphylactic shock. His throat closed, he could not breathe, and he lost consciousness. He was taken to a hospital near River for emergency treatment.
82. M.R.M.H. submitted a second request for parole the following day, on April 8, 2019. The second request marshaled additional evidence: a letter from an attorney guaranteeing that she would represent him in his asylum proceedings if he were released from custody; letters from several supporters in Milwaukee, including a family member; one of his sponsors’ stepdaughter, who is a therapist; a community organization, and a local priest. ICE denied the second request in an email dated April 12, 2019. The email stated: “Your previous parole request was denied. You have spoken to the case officer. ERO New Orleans sees you are trying to request a 2nd time. Your clients[sic] next hearing with DOJ EOIR will be on May 28, 2019. At this point, ERO will not consider release on parole. Your client will remain in custody pending the determination from the IJ [immigration judge].”
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83. On April 17, 2019, M.R.M.H. again requested parole on the grounds of urgent humanitarian concerns due to ICE’s failure to adapt M.R.M.H.’s diet and medical treatment to prevent future life-threatening emergencies. His attorney for parole proceedings received an email response from Deportation Officer Jacques T. Metoyer on May 2, 2019, stating that M.R.M.H. “is not eligible for release on an Order of Supervision as he is not [sic] a final order of removal.” In another email received by M.R.M.H.’s attorney on May 20, ICE states, “our agency is going to continue your client’s detention without release on OSUP [Order of Supervision].”
84. ICE has failed to provide M.R.M.H. with adequate medical care or a medically appropriate diet, causing significant harm to his health. M.R.M.H. has notified ICE and jail officials several times that he is allergic to certain foods. Yet ICE has failed to ensure that he has access to food that does not provoke potentially life-threatening allergic reactions. As a result, M.R.M.H. has had hives for several months. He has experienced severe breathing problems, including anaphylaxis. He has lost consciousness and been hospitalized on several occasions. A physician who conducted an independent medical evaluation of M.R.M.H. in April 2019, found he needed allergy testing, a special diet, immediate access to an epinephrine pen, and x-rays of his foot and chest. Another physician who reviewed M.R.M.H.’s medical records found he “is at extremely high risk of dying in ICE custody from a preventable condition.”
85. As a trauma survivor, M.R.M.H.’s ongoing confinement in a prison-like setting has exacerbated his psychological symptoms. He is exhibiting signs of post-traumatic stress disorder, including flashbacks, nightmares, and psychological distress.20 Every day that he remains in confinement compounds the harm he suffers.
20 See note 16, supra. 24

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86. Mr. Puche Moreno, has been confined by DHS for more than eight months. In Venezuela, he was an active member of an opposition party seeking to oust embattled President Nicolás Maduro. Because of his political work, he was kidnapped and assaulted by agents of the ruling party. He fled after learning of credible threats against his life.
87. Upon indicating his intent to seek asylum in the United States, Mr. Puche Moreno was detained, then sent to Tallahatchie, Mississippi, where he had to wait about five weeks for his credible fear interview, which he passed. He sought parole four times, initially pro se and subsequently with the assistance of an attorney. All three requests by the attorney complied with the 2009 Parole Directive. The first, submitted on December 17, 2018, included: a letter from Mr. Puche Moreno’s sponsor, a U.S. citizen uncle; his sponsor’s proof of address; and letters of support from three family friends, two of whom are U.S. citizens and one of whom is a permanent resident. Neither Mr. Puche Moreno nor his attorney received any response to this request, which the attorney re-submitted by email on December 28, 2018.
88. On January 7, 2019, Mr. Puche Moreno submitted a revised parole request with more evidence that he did not pose a flight risk: proof of legal representation in his asylum proceedings, which correlates with high appearance rates at court hearings21; and an offer of employment from a U.S. citizen employer. An ICE agent responded by email on January 7, 2019, saying he would review the request. A couple days later, ICE issued a form denial dated December 28, 2018. Two boxes were checked: flight risk, with no amount of bond ensuring appearance; and failure to show changed circumstances.
89. In light of deteriorating conditions in Venezuela, including food shortages, power outages, the cessation of international flights, and the threat of further U.S. sanctions, Mr. Puche
21 Ingrid V. Eagly & Steven Shafer, A Nat’l Study of Access to Counsel in Immigration Court, 164 Univ. of Pa. Law Review 1, 10 (2015) [hereinafter Eagly & Shafer].
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Moreno submitted a fourth parole request. The request, based on changed circumstances, contained news articles about the humanitarian crisis in Venezuela, the cessation of flight operations, and the move by U.S. lawmakers to secure Temporary Protected Status for Venezuelans. Despite the proof of cessation of air traffic between the U.S. and Venezuela, ICE again denied parole.
90. Mr. Puche Moreno’s prolonged detention has meant many painful days without any communication with his family. When he was forced to flee Venezuela, he had to leave his wife of less than one month. From detention, communication is costly, and Mr. Puche Moreno can only speak with her a couple of times a month. Without access to parole, he has been unable to work to support his family, who have struggled to pay the thousands of dollars in attorneys’ fees required to pursue his asylum claim. In addition, Mr. Puche Moreno suffers from hyperinsulinism, which he has been unable to manage due to lack of control over his diet in detention. His condition leaves him feeling weak and light-headed with frequent headaches, further contributing to the stress of long-term confinement and fear of deportation back to violence.
91. P.S.P. has been confined by DHS for nearly eight months. He fled Cuba because government agents were demanding that he harm patients for political reasons. In response to the spread of the Zika virus, Cuban officials demanded that he pressure pregnant patients to terminate their pregnancies if they tested positive for the virus. This practice sought to shore up the international reputation of Cuba’s medical system by covering up a spike in birth deformities and infant mortality attributable to the Zika virus.
92. As part of this practice, Cuban officials demanded that P.S.P. to perform a late-term abortion on a patient despite evidence that the laboratory was producing unreliable test results. After he refused to follow their order, Cuban authorities retaliated against him, beating and detaining him. They began asking patients if he touched them inappropriately and made a baseless
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accusation of prostitution against P.S.P., who is gay. All his life, he has faced discrimination for his Afro-Latino roots and sexual orientation.
93. P.S.P. fled Cuba to seek asylum in the United States. He was detained for more than a month before he was given a credible fear interview, which he passed. Thereafter, he received a parole advisal in English, a language he does not speak or read fluently. The advisal had a proof of service date of November 21, 2018. It promised a parole interview on November 20, 2018, a date that had already passed. It set a deadline for submission of documents on November 21, 2018—the very same date on the proof of service.
94. P.S.P. and his sponsor, his U.S. citizen sister, tried unsuccessfully for months to obtain information from the New Orleans ICE Field Office about the parole process. His sister called ICE several times trying to reach P.S.P.’s deportation officer, who has never returned her calls. She mailed to Pine Prairie, via overnight delivery, a package with documents in support of parole for P.S.P. The package was returned without any notice of receipt or decision.
95. After three months in ICE custody in Louisiana without any prospect of release, P.S.P. submitted a written request for access to the parole process. Specifically, he requested a parole interview and instructions for submitting documents in support of his parole request. ICE responded about two months later, stating only “[h]earing scheduled in Feb.” P.S.P. interpreted this to mean that because his asylum hearing was scheduled for February, ICE had denied his request for a parole interview and the opportunity to submit supporting evidence.
96. Forced to wait over seven months for a decision from the immigration judge in his asylum case, P.S.P. has suffered great harm from his lengthy detention, including separation from his permanent resident sister and U.S. citizen brother-in-law. He has followed all the legal steps asked of an asylum seeker by passing his credible fear interview and presenting himself at every court hearing.
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97. J.M.R. has been confined by DHS for more than ten months. A political dissident in Cuba, J.M.R. refused to enlist in the military as required. For that, Cuban authorities appeared at a soccer field where he was playing, beat him with a baton, pulled him off the field, and jailed and interrogated him. Because he refused to complete compulsory military service, Cuban authorities twice beat him in this fashion, issuing him a citation and fine and threatening to disappear him.
98. J.M.R. fled Cuba to seek asylum in the United States. He was detained at the border, then moved to Tallahatchie. He was forced to wait in detention for nearly a month before he was given a credible fear interview, which he passed. Thereafter, he received a parole advisal in English, a language he does not understand, and he was transferred to Pine Prairie. He had been unable to retain an attorney and did not understand the significance of the parole advisal when, on September 12, 2018, he received a form letter denying him parole. The form letter had marks by several check boxes related to flight risk: failure to provide a valid U.S. address where he would reside if released, and that no amount of bond could ensure his appearance.
99. With legal assistance, he sought parole reconsideration on November 21, 2018. The request complied with the 2009 Parole Directive, and included a copy of his birth certificate, a notarized affidavit of support from his sponsor, his U.S. citizen uncle, proof of his sponsor’s address in Florida, and a Cuban certification that he had no criminal record. ICE denied parole in a form letter dated November 27, 2018. The only checkbox marked on the form indicated “fail[ure] to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE’s previous determination.”
100. J.M.R.’s confinement in a remote immigration prison in Louisiana, far from his sponsor and other family support in south Florida, deprived him of access to legal representation to pursue his asylum claim before the immigration judge. Accordingly, he was forced to represent
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himself pro se at his asylum hearing. His confinement also restricted his ability to represent himself at his asylum hearing by limiting his access to relevant evidence and information. At Pine Prairie, he failed to receive a package of documents mailed by his uncle to support his asylum claim, and he had limited access to legal materials.
101. R.O.P has been confined by ICE for more than ten months. He fled Cuba because government agents were demanding that he harm patients for political reasons. A physician at a state hospital, he was pressured to withhold life-saving treatment from a patient who was a nationally recognized political dissident. When R.O.P. confronted state authorities about the unethical conduct at the hospital, state authorities began to retaliate against him.
102. R.O.P. fled Cuba to seek asylum in the United States. He was detained for about a month before he was given a credible fear interview, which he passed. Thereafter, he was served with a parole advisal in English. Though the advisal lacked a proof of service date, he was served with it one day before the deadline for him to submit documents in support of parole. The advisal promised a parole interview on August 28, 2018. But he never received a parole interview. The advisal also specified the mailing address and fax number where documents were to be sent.
103. Shortly after receiving the advisal, R.O.P.’s relative gathered documents in support of his parole request, and sent them to R.O.P.’s ICE officer at the mailing address and fax on the advisal. When his relative called the ICE officer to confirm receipt, the ICE officer told the relative that documents were not accepted via fax. Several days later, the relative called the ICE officer again to confirm receipt of the documents by mail; the ICE officer acknowledged receipt. ICE denied R.O.P. parole in a form letter dated August 30, 2018. The form letter had marks by several check boxes related to flight risk: failure to establish substantial ties to the community, and no amount of bond could ensure his appearance.
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104. After that, R.O.P. sought parole reconsideration with legal assistance. The application bolstered his community ties by adding a new letter of support from his sponsor, his U.S. citizen fiancée, a letter from her U.S. citizen daughter, and another letter from a permanent resident who studied and worked alongside him in Cuba, and was also forced to flee due to persecution. Despite the additional evidence, R.O.P. was not granted parole.
105. R.O.P.’s confinement in a remote immigration prison in Louisiana has prolonged his separation from his sponsor, who is his U.S. citizen fiancée, and exposed him to illness due to the conditions of confinement. He suffered from an ear infection that went untreated for weeks after a medical professional dismissed his complaints, saying his ear was dirty. Although he eventually received treatment for the infection, he remains exposed to mold on the walls near his bed and has been forced to place plastic bags over it to prevent the moisture from dripping onto his bed.
106. F.J.B.H. has been confined by DHS for five months. He fled Honduras after criminal gangs affiliated with the ruling political party extorted him for months, and eventually robbed him at gunpoint, beat him, and attempted to kidnap his girlfriend and son. After taking his girlfriend and son into hiding, they joined the migrant caravan in October 2018 and journeyed toward the United States to seek asylum.
107. Upon presenting at the U.S. border, he was separated from his family, detained, and transported to Tallahatchie. There, he received a credible fear interview, which he passed. On January 17, 2019, F.J.B.H. received a parole advisal in English and a two-page document in Spanish with general information about parole. Because he does not understand English, F.J.B.H. did not understand the contents of the advisal and did not realize the deadlines it set for the submission of documents in support of parole.
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108. The following day, on January 18, 2019, F.J.B.H. was served with a parole denial letter. Because he does not understand English, he did not realize he had been denied parole on the basis of flight risk. Although he requested library access to use a Spanish-English dictionary, he was denied it. A few weeks later, after his transfer to River, he was served with a second parole advisal. F.J.B.H. refused to sign the proof of service of the advisal until an ICE officer explained to him the contents of the document in Spanish. The advisal set a deadline of March 27, 2019 to submit documents in support of his parole application, and promised an interview on the same date. The interview did not occur.
109. On or around March 25, 2019, F.J.B.H. submitted documents in support of his parole application in person to an ICE officer at River. The documents included a copy of his birth certificate, a letter from his sponsor, his permanent resident sister, and a Honduran certification of no criminal record. The ICE officer replied that ICE was not giving parole to anyone. ICE denied F.J.B.H. parole in a form letter dated March 28, 2019, again for flight risk. ICE agents at River told F.J.B.H. that they would not grant parole to anyone even if President Trump visited them, and that the reasons they deny parole to all is because all are flight risks.
110. While confined in a remote immigration prison in Louisiana, F.J.B.H. has been kept far from his permanent resident sister, his girlfriend, and the child they have jointly raised for six years. Due to the high cost of phone calls, he is rarely able to speak to his family over the phone and has had to rely mainly on letters to communicate with family and search for legal representation. Not having been able to secure an attorney, he expects to represent himself pro se in his asylum hearing before the immigration judge.
111. Mr. Giron Martinez has been confined by DHS for almost five months. He fled Honduras in October 2018, after Honduran government officials and death squads threatened him with disappearance and death for his participation in political activities. On January 14, 2019,
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Mr. Giron Martinez sought asylum in San Ysidro, California. On or around February 12, the same day that he passed his credible fear interview, he received packet of documents in English, a language he does not understand. No one verbally explained the contents of the packet to him. A few days later, with the help of an English language interpreter, Mr. Giron Martinez learned that the documents he received were a parole advisal.
112. The advisal set a deadline of February 13, 2019 for Mr. Giron Martinez to submit documents in support of his parole request, and his parole interview was scheduled for February 14, 2019. Shortly thereafter, Mr. Giron Martinez received an English-language letter which, he later learned through an interpreter, denied him parole. He did not have an opportunity to submit documents in support of parole, nor did he receive an interview.
113. Mr. Giron Martinez again sought parole in April 2019. He submitted documents in support of his parole request including: his Honduran passport, a letter of support from his U.S. citizen sponsor, as well as his sponsor’s proof of address and income. Shortly thereafter, ICE denied Mr. Giron Martinez parole in a form letter. The ICE official marked a checkbox stating that Mr. Giron Martinez was a flight risk.
114. Mr. Giron Martinez’s prolonged detention has significantly restricted his ability to adequately prepare for and pursue his asylum claim. Due to restricted communication at Jackson, it has been nearly impossible for him to secure an attorney and communicate with his sponsor to prepare his asylum case.
115. Mr. Tumenta has been confined by ICE for almost ten months. He fled his native country of Cameroon in April 2018, after the Cameroonian government banned the Southern Cameroons National Council – the political party of which he is a card-carrying member – and massacred hundreds of its members. The Southern Cameroon National Council is recognized by the United Nations as a political party whose members are targeted for political persecution,
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torture, and murder. Before fleeing Cameroon to seek asylum in the U.S., the Cameroonian government beat, tortured, and detained Mr. Tumenta on multiple occasions. This fear for his life caused Mr. Tumenta to leave behind his pregnant wife, who could not travel with him to the U.S. to seek asylum due to her pregnancy. On September 6, 2018, Mr. Tumenta arrived in San Ysidro, California, seeking asylum. He was detained and transferred to Tallahatchie, where he was given a credible fear interview, which he passed in October 2018.
116. On October 16, 2018, he was served with a parole advisal. The advisal set the date for his parole interview on that very same day, and set a deadline for him to submit documents in support of his parole request the following day, October 17, 2018. Mr. Tumenta was unable to submit documents within the 24-hour deadline because his confinement made it difficult for him to communicate with his family and solicit his documents. He never received a parole interview.
117. A few days later, Mr. Tumenta contacted his sponsor, his U.S. permanent resident uncle, who prepared a parole application including: an affidavit of support from his uncle, the sponsor’s proof of address and immigration status, and proof of Mr. Tumenta’s identity. Thereafter, Mr. Tumenta was transferred to Pine Prairie. Upon his arrival, he received a form letter from ICE denying him parole. The letter, dated October 17, 2018, had a checkbox marked for flight risk.
118. On October 28, 2018, Mr. Tumenta submitted a written request to an ICE official inquiring about his parole denial. He received a response from the ICE official on November 1, 2018, informing him that the “parole decision will not change for now.” He later spoke to another ICE official who told him: “[y]ou’re going nowhere; “the first decision won’t change;” and ICE “won’t give you parole.”
119. Mr. Tumenta’s confinement in a remote Louisiana immigration prison has caused him many harms. The experience of confinement has compounded the trauma he suffered in
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Cameroon; he now suffers from depression, flashbacks, and difficulty sleeping. Because he is confined, he cannot support his wife, who has given birth to their son, nor can he speak to her regularly. He has suffered physical illness in confinement, contracting mumps, which led to him being isolated from the general population.
CLASS ACTION ALLEGATIONS
120. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) on behalf of themselves and all other persons similarly situated. The proposed class is defined as follows:
All arriving asylum seekers (2) who receive positive credible fear determinations; and (3) who are or will be detained by U.S. Immigration and Customs Enforcement; (4) after having been denied parole by the New Orleans ICE Field Office. 121. The class is so numerous that joinder of all members is impracticable. According to ICE data, the New Orleans ICE Field Office denied parole to 128 people in 2018. 122. Many more individuals are now or will become class members in the future, given that ICE is expanding its capacity to confine noncitizens in the custody of the New Orleans ICE Field Office. 123. Currently, ICE holds up to 1,160 men and women in custody at LaSalle, in Louisiana. 124. Currently, ICE holds nearly 800 men and trans women in custody at Pine Prairie, in Louisiana. 125. Currently, ICE has the capacity to confine hundreds more people in Louisiana at Bossier, Jackson, and the Allen Parish Public Safety Complex in Oberlin. 126. Currently, ICE has capacity to confine nearly 1,000 people in Mississippi at Tallahatchie.
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127. Recently, ICE added capacity to confine about 600 people at River in Louisiana. 128. Recently, ICE added capacity to confine up to 1,000 people at the Richwood Correctional Center22 in Monroe, Louisiana.
CAUSES OF ACTION First Claim
(Administrative Procedure Act) Unlawful Failure to Follow and/or Effective Rescission of the ICE Parole Directive
129. Plaintiffs hereby reallege and incorporate by reference the foregoing paragraphs. 130. The 2009 Parole Directive is a final agency action. 131. The 2009 Parole Directive remains in effect. Accordingly, DHS is bound by its terms, and its provisions must be applied to Arriving Asylum Seekers who receive positive credible fear determinations. 132. Despite that, the New Orleans ICE Field Office has taken the position that the 2009 Parole Directive is no longer in effect. 133. Defendants’ policy and practice of ignoring the Parole Directive is arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2).
Second Claim (Administrative Procedure Act – Violation of the Immigration and Nationality Act
and Implementing Regulations) Failure to Provide Individualized Determinations of Flight Risk and Danger
22 KNOE News, “More than a thousand migrant detainees from the border to be housed at the Richwood Correctional Facility,” (April 4, 2019), available at: https://www.knoe.com/content/ news/More-than-a-thousand-migrant-detainees-from-the-border-to-be-housed-at-the-RichwoodCorrectional-Facility--508150181.html; Noah Lanard, “Louisiana Decided to Curb Mass Incarceration. Then ICE Showed Up.” Mother Jones (May 1, 2019), available at: https://www.motherjones.com/politics/2019/05/louisiana-decided-to-curb-mass-incarcerationthen-ice-showed-up/.
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134. Plaintiffs hereby reallege and incorporate by reference the foregoing paragraphs. 135. The INA and its implementing regulations prohibit DHS from subjecting asylum seekers to long-term civil immigration detention absent an individualized determination that the individual poses a flight risk or is a danger to the community. 136. Defendants are failing to provide individualized determinations, instead issuing denials on a categorical basis to nearly all Arriving Asylum Seekers. 137. Defendants’ categorical detention of Plaintiffs and those similarly situated, without any individualized review of flight risk or danger to the community, violates the INA and its implementing regulations.
Third Claim (Due Process Clause of the Fifth Amendment to the United States Constitution)
Failure to Provide Individualized Determinations of Flight Risk and Danger 138. Plaintiffs hereby reallege and incorporate by reference the foregoing paragraphs. 139. Arriving Asylum Seekers are “persons” within the meaning of the Due Process Clause. 140. Accordingly, Arriving Asylum Seekers may not be deprived of liberty without due process of law. 141. Defendants are failing to provide Asylum Seekers with individualized determinations regarding release from confinement. 142. Defendants’ failure to provide such individual review infringes on Arriving Asylum Seekers’ liberty interests without due process of law, as required by the Fifth Amendment to the U.S. Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
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Case 1:19-cv-01593-JEB Document 2 Filed 05/30/19 Page 37 of 38 1. Declare that the New Orleans ICE policy and practice is arbitrary, capricious and contrary
to law; 2. Enter an order enjoining Defendants from detaining Plaintiffs and proposed class members
absent parole reviews that result in individualized determinations that detention is necessary to prevent flight or danger to the community and that conform to the other requirements of the 2009 Parole Directive; 3. Appoint a special master to oversee the New Orleans ICE Field Office’s compliance with the 2009 Parole Directive; 4. Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice Act and any other applicable statute or regulation; and 5. Grant such further relief as the Court deems just, equitable, and appropriate.
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Dated: May 30, 2019
Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

Respectfully submitted,
_____//s// Melissa Crow_____________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org
Attorneys for Plaintiffs *Pro Hac Vice applications forthcoming

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EXHIBIT A

Case 1:19-cv-01593-JEB Document 2-1 Filed 05/30/19 Page 2 of 9

Laura Rivera
From: Sent: To: Subject: Attachments:

Rose Murray <murray.rose@gmail.com> Thursday, November 29, 2018 3:22 PM SIFI Alexandria; Daniel Werner; Laura Rivera Fwd: [midsouth] *** IMPORTANT *** UPDATE FROM ICE ERO 2018 11 29 ICE-AILA Liaison Meeting agenda and questions kam.pdf; New Orleans AOR Docket_AILA_October 2018.pdf

‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: Ana Sardi <ana@mayeauxsardi.com> Date: Thu, 29 Nov 2018 at 13:18 Subject: [midsouth] *** IMPORTANT *** UPDATE FROM ICE ERO To: AILA Mid South Chapter Mailing List <midsouth@lists.aila.org> Cc: Ken Mayeaux <ken@mayeauxsardi.com>
Dear All: I just received this important update from ERO. Enclosed you will find a FULL DOCKET LIST and answers to the questions that were posed at the AILA Liaison meeting in New Orleans. PLEASE READ OF. ACUNAS EMAIL BELOW. Let me know if you have any additional questions.
Ana Maria Sardi, Esq.
Attorney at Law 321 St. Joseph Street Baton Rouge, LA 70802
Main: 225-754-4477 Cell: 225-270-0010 Fax: 225-341-8755

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Case 1:19-cv-01593-JEB Document 2-1 Filed 05/30/19 Page 3 of 9 CONFIDENTIALITY NOTICE: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
From: Acuna, Brian S <Brian.S.Acuna@ice.dhs.gov> Sent: Thursday, November 29, 2018 1:14 PM To: Ana Sardi <ana@mayeauxsardi.com> Cc: Bowman, Tyrone A <Tyrone.A.Bowman@ice.dhs.gov>; Warren, Scott W <Scott.W.Warren@ice.dhs.gov> Subject: RE: Trey Lund's role
Hello Ana, this is the update. The answers and docket list are attached. Please note on answer #3 we placed the websites for Bossier and Tallahatchie facility information at ICE.gov in highlighted text. Those links can be clicked or simply go to ICE.gov and search the facility.
George Lund is our Acting Field Office Director. Typically attorneys interact with the FOD or his representative if our groups have these meetings like on Nov. 2nd. Individual casework such as detention and removal inquiries are dealt with through the normal process of Deportation Officer, supervisor, and as needed Assistant Field Office Director or NewOrleans.Outreach@ice.dhs.gov.
Thanks and have a great day.
Brian S. Acuna
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations New Orleans Field Office
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Case 1:19-cv-01593-JEB Document 2-1 Filed 05/30/19 Page 4 of 9 (504) 599-7868 (504) 520-0396 [cell] (504) 589-2661 [fax] Brian.S.Acuna@ice.dhs.gov
--You are currently subscribed to midsouth as: [murray.rose@gmail.com] To change your email address go to https://www.aila.org/myaila/account/edit You can also unsubscribe or make changes at https://www.aila.org/MyAila/Account/Listservs If you are on a list you have an account with AILA. If you have never logged into aila.org the forgot password link is https://www.aila.org/MyAila/ForgotPassword Enter the email address that the list is using for you and it will send you a password link. Have problems? Email listservs@aila.org
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ICE ERO – AILA Liaison Meeting – November 2, 2018 AILA Midsouth Meeting – New Orleans
GENERAL QUESTIONS
1) Please give us an organizational update on the ICE staff (ERO) including the names, emails and phone numbers, in particular the deportation officers and supervisors for Memphis, Nashville, Gadsden, Birmingham, Montgomery, New Orleans, Jena and Oakdale and how the dockets are divided. George Lund is the Acting Field Office Director for Alabama, Arkansas, Louisiana, Mississippi and Tennessee. The docket lists are attached.
2) Please give us an organizational update on the ICE OCC attorneys including the names and contact information for New Orleans, Oakdale and Memphis. OCC will cover this.
DETENTION FACILITIES
3) Please identify the detention centers in the New Orleans district at which ICE/ERO is presently detaining noncitizens on a greater than 72-hour basis. For each facility please provide the names and contact information for the warden. Etowah County Detention Center (Gadsden, AL); LaSalle ICE Processing Center (Jena, LA); Pine Prairie ICE Processing Center (Pine Prairie, LA); Allen Parish Public Safety Correctional Complex (Oberlin, LA); Bossier Parish Medium Security Facility (Plain Dealing, LA) Bossier Facility Info; Tallahatchie County Correctional Facility - TASC (Tutwiler, MS) Tallahatchie Facility Info.
a) Please also identify the person at the facility to whom our members should direct inquiries regarding problems with access to counsel or other detention issues?
b) Please also identify the ICE/ERO deportation officer(s) assigned to each facility, and the ICE/ERO officer with supervisory authority over detention operations at each facility. Our ERO staffing assignments are listed on the AILA docket issued to your members
c) Please provide number of ICE beds at Bossier and Tutwiler and explain if ICE is con term facilities and with how many ICE detainees in each long term? Bossier Parish is a local facility. The Tallahatchie Asylum Screening Center is a national facility. ICE is exploring with the appropriate parties on setting up a Legal Orientation Program at the TASC.
d) If in these “secondary” detention locations once CFI is passed are they transferred elsewhere? Where? We advise AILA members to work on each case individually with the assigned ERO Officers, or new field offices in the event of a transfer.
4) How does an attorney schedule an attorney call at Alexandria Staging Facility? Attorneys should request and coordinate calls directly with the assigned Deportation Officer and/or the respective ERO office exercising docket control over those cases.

AILA-ICE New Orleans Liaison Meeting

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November 2, 2018

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DETENTION FACILITIES – CONT’D
5) Please tell us about any new detention facilities being developed or contemplated within the NOLA field office. Is Pine Prairie expanding or Basile reopening? No
6) Can attorneys now schedule attorney calls and in person visits with the facility staff at La Salle? The facility follows the PBNDS 2011 standard for legal visits.
ICE DETAINERS AND HOLDS
7) Please inform members of ICE’s policies and a list of contacts regarding the best practices for gathering information about detained criminal respondents with “Immigration Holds/Detainers.” When the Defendant/Respondent is detained/arrested by local authorities and an Immigration HOLD is placed (sometimes immediately), is there an immigration/deportation officer in charge of that Respondent at that initial moment that will take a G-28, and what is the preferred procedure for accomplishing this? Can contact be made while the State or Federal criminal proceeding is still ongoing? We are experiencing police and Sheriff’s departments that refuse to release or bond out inmates because of an ICE detainer – who do we talk to? Yes. Please contact the local office supervisor to discuss the case.
8) Please inform members of ICE’s policies regarding ICE’s timetable for acquiring jurisdiction over criminal defendants/respondents subject to an Immigration Hold/Detainer once the respondent has been sentenced for a deportable crime that has NO BOND relief. What is ICE’s policy regarding how much time would be allowed for the Defendant/Respondent to serve their sentence before ICE takes jurisdiction over the Defendant/Respondent? What is ICE’s policy regarding criminal defendants/respondents subject to an Immigration Hold/Detainer that have pleaded guilty to a deportable crime with no Bond relief, and who do not wish to fight the case in Immigration court and instead would prefer to just be “Deported”? There is no timing policy for local or state jurisdictions when ICE screens individuals under CAP. ICE staff monitoring federal and Louisiana Department of Corrections under CAP may also process individuals through the Institutional Removal Program.

AILA-ICE New Orleans Liaison Meeting

2

November 2, 2018

Case 1:19-cv-01593-JEB Document 2-1 Filed 05/30/19 Page 7 of 9
PROSECUTORIAL DISCRETION AND JOINT TERMINATION
OCC spoke on Saturday, November 3, 2018, and answered these 9) Overall, what is the preferred procedure to request that OCC agree to re-calendar and/or
jointly terminate where the respondent has relief (i.e. AOS and/or I-601A/CP, etc.)?
10) More specifically, when will ICE exercise PD to jointly terminate proceedings to allow individuals to apply for a 601A waiver? Can they implement guidelines to assist us?
11) For respondents seeking PD, where an NTA has not been filed with the Immigration Court, will ICE/OCC what is the procedure to request that the NTA be cancelled?
12) What is the preferred procedure for escalating PD denials? Can you please provide a chart or list of people with whom to follow-up with in such circumstances?
ISAP AND SUPERVISION POLICIES AND ISSUES
13) What criteria are used to determine whether to arrest someone at a check-in? We have been told by Deportation Officers one factor in an arrest was that the field office now had detention space for our client – is this appropriate? ICE Officers have the discretion to arrest an individual on recognizance or supervision.
14) What are ICE's responsibilities to the children whose parents they arrest if the children are present at a check-in? If an AILA member has a specific problem with a case, they should speak to the local office supervisor.
15) Who makes the decision to arrest? ICE Officers have the discretion to arrest an individual on recognizance or supervision.
16) What criteria are used to determine who goes to ISAP? ICE Officers use the Alternatives to Detention program based on national policy.
17) What is the policy on release of pregnant women? The December 2017 ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees does not mention any provisions for release. ICE Officers have the discretion to release an individual on recognizance or supervision when medically necessary. The ICE policy on care of pregnant detainees is located here: https://www.ice.gov/directive-identification-andmonitoring-pregnant-detainees

AILA-ICE New Orleans Liaison Meeting

3

November 2, 2018

Case 1:19-cv-01593-JEB Document 2-1 Filed 05/30/19 Page 8 of 9

STAYS OF REMOVAL AND ENFORCEMENT OF FINAL ORDERS
18) How do pending applications for benefits factor into decisions whether or not to approve a stay? I'm confident that it's "case-by-case", but I imagine that there are also specific guidelines. There is no set policy for adjudicating stays.
19) More generally, what factors go into deciding whether to deny or approve a stay? ICE does take all equities into account.
20) If someone receives an order of removal from immigration court, at what point will ICE begin enforcement? Will they wait until the 90-day deadline to file a motion to reopen the case? Or is it when the removal order becomes final? ICE works on the arrangements when the order of removal is administratively final.
21) What is the procedure for requesting a GPS bracelet be removed? The Deportation Officer or the local office supervisor can review on a case-by-case basis, if requested.
22) What factors are used in determining whether to place someone on an ankle bracelet as well as when to remove the ankle bracelet? We would refer AILA members to November 2017’s response on this topic.
23) What is the procedure for changing reporting locations for persons on OSUP? Please advise clients to review instructions on Form I-220B.
24) What is the procedure for requesting a credible or reasonable fear interview? Speak to the Deportation Officer.
25) Why isn't ICE issuing bonds and all cases are being sent to the Immigration Judges? ICE Officers have the discretion to set a bond or release an individual on recognizance or supervision after processing, in appropriate cases.
26) Is the 2009 Parole Memo still in effect? If so, what percentages of parole requests are granted by the NOLA Field Office? We have problems contacting the Deportation Officer for these – what can we do? Technically no, by Executive Order. However, there is an injunction in certain field offices outside the New Orleans AOR. We do not have statistics to give out. If you cannot contact the Deportation Officer, please speak with the supervisor or NewOrleans.Outreach@ice.dhs.gov to pass on your parole request.
27) Is the 2011 Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs memo still in effect? No, by Executive Order.
28) Could you please provide us a list of intransigent countries that are not issuing your Field Office travel documents? We do not have information to give out because the field does not work on that aspect of ICE operations.

AILA-ICE New Orleans Liaison Meeting

4

November 2, 2018

Case 1:19-cv-01593-JEB Document 2-1 Filed 05/30/19 Page 9 of 9
*****Other questions from the audience or matters ICE officials wish to bring
to AILA members’ attention*****
29) If an attorney is planning on filing a stay of removal is it enough to call, fax or email a copy of the stay that will be filed to stop a pending removal? If this references a stay of removal at the EOIR or the BIA, no. Only a properly filed motion to reopen with an automatic stay under the law, or a stay motion granted by the court or BIA would be appropriate to halt a removal.
30) On behalf of Catholic Charities would ICE consider reinstating the pilot program for Cuban Nationals in the Baton Rouge area? Can you please clarify ICE’s removal policies on Cuban Nationals? We understand that the Referrals for Community Supported Release Program was a one (1) year pilot program. This was a national program, we would encourage your main Catholic Charities headquarters to speak to ICE headquarters. We would advise AILA members to research current federal regulations and international agreements with respect to the reestablishment of diplomatic relations with Cuba.
31) We are experiencing problems with clients who are reporting to ICE for a number of years and despite that receive an in-absentia removal order – what can we do about that? We request address change information from individuals who report to our offices at each appointment. When a Notice to Appear is filed with the court, and when ICE becomes aware of a change, ICE serves Form I-830 on the court. Respondents who are already in proceedings are responsible for likewise filing Form EOIR-33 with the court. If AILA members begin representation of a client and they are not sure where the court would address the hearing notices, we encourage contact with the Deportation Officer and if needed the Office of the Chief Counsel.

AILA-ICE New Orleans Liaison Meeting

5

November 2, 2018

Case 1:19-cv-01593-JEB Document 2-2 Filed 05/30/19 Page 1 of 2

CIVIL COVER SHEET

JS-44 (Rev. 6/17 DC)

I. (a) PLAINTIFFS

DEFENDANTS

Ángel Alejandro Heredia Mons, Roland Nchango Tumenta, Dayana Mena López, Y.A.L., J.M.R., P.S.P., R.O.P., Adrián Toledo Flores, Douglas Enrique Puche Moreno, M.R.M.H., F.J.B.H., and M.A.G.M.

Kevin K. McAleenan, Acting Sec. of the Department of Homeland Security (DHS), in his official capacity; Matthew T. Albence, Acting Director for U.S. Immigration & Customs Enforcement (ICE), in his official capacity; Nathalie R. Asher, Acting Executive Associate Director for ICE Enforcement & Removal Operations, in her official capacity; and George H. Lund, III, Director of the ICE New Orleans Field Office, in his capacity, c/o Office of General Counsel for the Department of Homeland Security

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _E_t_o_w__a_h__C__o_u_n__ty_,__A_L__ (EXCEPT IN U.S. PLAINTIFF CASES)

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _D__is_t_r_ic_t_o__f_C__o_lu__m__b_ia__ (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)

ATTORNEYS (IF KNOWN)

Melissa Crow and Luz Virginia Lopez, Southern Poverty Law Center ("SPLC"), 1101 17th St., NW, Ste. 750, Washington, DC 20036, (202) 355-4471; Mary Bauer, SPLC, 1000 Preston Avenue, Charlottesville, VA 22903, (470) 606-9307; Laura Rivera, SPLC, 150 E. Ponce de Leon Ave., Ste. 340, Decatur, GA 30030 (404) 521-6700; Katie Schwartzmann and Bruce Hamilton, American Civil Liberties Union of Louisiana Foundation, P.O. Box 56157 New Orleans, LA 70156, (504) 522-0628

II. BASIS OF JURISDICTION

(PLACE AN x IN ONE BOX ONLY)

o o 1 U.S. Government

3 Federal Question

Plaintiff

(U.S. Government Not a Party)

o 2 U.S. Government
Defendant

o 4 Diversity
(Indicate Citizenship of Parties in item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR

PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

PTF DFT

PTF

Citizen of this State

o o o 1

1 Incorporated or Principal Place

4

of Business in This State

o o o Citizen of Another State

2

2 Incorporated and Principal Place

5

Citizen or Subject of a Foreign Country

o 3

of Business in Another State
o 3 Foreign Nation

o 6

DFT
o 4
o 5
o 6

IV. CASE ASSIGNMENT AND NATURE OF SUIT

(Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit)

o o A. Antitrust

B. Personal Injury/

o C. Administrative Agency

o D. Temporary Restraining

Malpractice

Review

Order/Preliminary

410 Antitrust

310 Airplane

151 Medicare Act

Injunction

315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Medical Malpractice 365 Product Liability 367 Health Care/Pharmaceutical
Personal Injury Product Liability 368 Asbestos Product Liability

Social Security 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
Other Statutes 891 Agricultural Acts 893 Environmental Matters 890 Other Statutory Actions (If Administrative Agency is Involved)

Any nature of suit from any category may be selected for this category of case assignment.
*(If Antitrust, then A governs)*

o E. General Civil (Other)
Real Property 210 Land Condemnation 220 Foreclosure 230 Rent, Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
Personal Property 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability

OR

o F. Pro Se General Civil

Bankruptcy 422 Appeal 27 USC 158 423 Withdrawal 28 USC 157
Prisoner Petitions 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Conditions 560 Civil Detainee – Conditions of Confinement
Property Rights 820 Copyrights 830 Patent 835 Patent – Abbreviated New Drug Application 840 Trademark

Federal Tax Suits 870 Taxes (US plaintiff or defendant) 871 IRS-Third Party 26 USC 7609
Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 690 Other
Other Statutes 375 False Claims Act 376 Qui Tam (31 USC 3729(a)) 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc. 460 Deportation

462 Naturalization Application
465 Other Immigration Actions
470 Racketeer Influenced & Corrupt Organization
480 Consumer Credit 490 Cable/Satellite TV 850 Securities/Commodities/
Exchange 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act)

Case 1:19-cv-01593-JEB Document 2-2 Filed 05/30/19 Page 2 of 2

o G. Habeas Corpus/
2255

o H. Employment
Discrimination

o I. FOIA/Privacy Act

o J. Student Loan

530 Habeas Corpus – General 510 Motion/Vacate Sentence 463 Habeas Corpus – Alien
Detainee

442 Civil Rights – Employment (criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation)

895 Freedom of Information Act 890 Other Statutory Actions
(if Privacy Act)

152 Recovery of Defaulted Student Loan (excluding veterans)

o K. Labor/ERISA
(non-employment)
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Labor Railway Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

*(If pro se, select this deck)*
o L. Other Civil Rights
(non-employment)
441 Voting (if not Voting Rights Act)
443 Housing/Accommodations 440 Other Civil Rights 445 Americans w/Disabilities –
Employment 446 Americans w/Disabilities –
Other 448 Education

*(If pro se, select this deck)*
o M. Contract
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholder’s Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise

o N. Three-Judge
Court
441 Civil Rights – Voting (if Voting Rights Act)

V. ORIGIN
o 1 Original
Proceeding

o 2 Removed
from State Court

o 3 Remanded
from Appellate Court

o 4 Reinstated
or Reopened

o 5 Transferred
from another district (specify)

o 6 Multi-district
Litigation

o 7 Appeal to
District Judge from Mag. Judge

o 8 Multi-district
Litigation – Direct File

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.) Action under Administrative Procedure Act (5 U.S.C. s. 706) to set aside agency action as unlawful, arbitrary, and capricious

VII. REQUESTED IN COMPLAINT

X

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $ JURY DEMAND:

$ Check YES only if demanded in complaint

YES

NO

VIII. RELATED CASE(S) IF ANY
DATE: _______0_5__/3__0_/_2_0__1_9_______

(See instruction)

YES $

NO

If yes, please complete related case form

SIGNATURE OF ATTORNEY OF RECORD ___________________/_/_s_//__M__e_l_is__s_a__C__r_o_w____________________

INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet.

I.

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident

of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States.

III.

CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction

under Section II.

IV.

CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best

represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding

nature of suit found under the category of the case.

VI.

CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause.

VIII.

RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk’s Office.

Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form.

Case 1:19-cv-01593-JEB Document 2-3 Filed 05/30/19 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________

Plaintiff(s)
v.
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:19-cv-01593-JEB Document 2-3 Filed 05/30/19 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:19-cv-01593-JEB Document 2-4 Filed 05/30/19 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________

Plaintiff(s)
v.
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:19-cv-01593-JEB Document 2-4 Filed 05/30/19 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:19-cv-01593-JEB Document 2-5 Filed 05/30/19 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________

Plaintiff(s)
v.
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:19-cv-01593-JEB Document 2-5 Filed 05/30/19 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:19-cv-01593-JEB Document 2-6 Filed 05/30/19 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________

Plaintiff(s)
v.
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:19-cv-01593-JEB Document 2-6 Filed 05/30/19 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

 Case 1:19-cv-01593-JEB Document 22 Filed 07/18/19 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Ángel Alejandro Heredia Mons, et al., on

)

behalf of themselves and others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

Kevin K. McALEENAN, Acting Secretary of

) )

the Dep’t of Homeland Security, in his official )

capacity, et al.,

)

Defendants.

) )

Civil Action No. 1:19-cv-01593-JEB

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUCTION

Plaintiffs, Angel Alejandro Heredia Mons1, Dayana Mena López, Y.A.L., J.M.R., P.S.P., R.O.P., Adrián Toledo Flores, Douglas Enrique Puche Moreno, M.R.M.H., F.J.B.H., and Miguel Angel Giron Martinez, hereby move, on behalf of themselves and a class of similarly situated individuals, for a preliminary injunction to enjoin Defendants Kevin K. McAleenan, sued in his official capacity as the Acting Secretary of the Department of Homeland Security (“DHS”); Matthew T. Albence, sued in his official capacity as Acting Director for U.S. Immigration and Customs Enforcement (“ICE”); Nathalie R. Asher, sued in her official capacity as Acting Executive Associate Director for ICE Enforcement and Removal Operations; and George H. Lund, III, sued in his official capacity as Director of the New Orleans Field Office of ICE, from continuing to apply and implement their policy and practice of detaining asylum

1 The Board of Immigration Appeals has recently denied Plaintiff Angel Alejandro Heredia Mons’s asylum appeal, and he is now subject to a final deportation Order; Plaintiff Ronald Nchango Tumenta was recently granted asylum and was released from detention.
1

Case 1:19-cv-01593-JEB Document 22 Filed 07/18/19 Page 2 of 4
seekers without individualized consideration of flight risk or danger to the community. As further explained in the accompanying Memorandum, the NOLA ICE Field Office has abdicated its responsibilities pursuant to ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009), the Immigration and Nationality Act, and its implementing regulations, and should therefore be set aside under the Administrative Procedure Act. The Deterrence Policy also violates the Due Process Clause of the Fifth Amendment to the United States Constitution. A preliminary injunction is warranted to prevent severe and irreparable harm to Plaintiffs, and to many others similarly situated who are, or will soon be, subject to this illegal and harmful conduct. In support of this Motion, Plaintiffs rely upon the accompanying Memorandum, declarations, and exhibits. A proposed order is attached for the Court’s convenience.
STATEMENT PURSUANT TO LOCAL RULE 7(m) Pursuant to Local Rule 7(m), Plaintiffs’ counsel conferred with Assistant U.S. Attorney Jeremy Simon of U.S. Attorney’s Office for the District of Columbia, to determine if Defendants would consent to the relief requested in this motion. Mr. Simon informed Plaintiffs’ counsel that Defendants oppose Plaintiffs’ Motion. Wherefore, Plaintiffs respectfully request that this Court grant this Motion.
Dated: July 18, 2019
Respectfully submitted,
2

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Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

__//s// Melissa Crow_________________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org
Attorneys for Plaintiffs *Pro Hac Vice applications forthcoming

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CERTIFICATE OF SERVICE I hereby certify that, on July 18, 2019, I electronically filed the attached PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUCTION with related memorandum, proposed order, and exhibits with the Clerk of Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.
Respectfully submitted: //s// Melissa Crow_____________
Melissa Crow (D.C. Bar No. 453487) SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Ángel Alejandro Heredia Mons, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593(-JEB) ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ....................................................................................................... 4
A. Legal Framework Governing Parole Decisions........................................................... 4 1. INA and Implementing Regulations ................................................................................. 4 2. The Parole Directive ........................................................................................................ 5
LEGAL STANDARD ................................................................................................................. 17 A. Preliminary Issues............................................................................................................ 17 1. Jurisdiction..................................................................................................................... 17 2. Legal Requisites for Establishing a Preliminary Injunction .......................................... 18
ARGUMENT............................................................................................................................... 18 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.............................. 18 A. Plaintiffs are Likely to Show That the NOLA ICE Field Office’s Departure From the Parole Directive Violates the APA, Being Arbitrary, Capricious, and Contrary to Law. ................................................................................................................. 18 B. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the INA and Its Implementing Regulations, and It Implicates Constitutional Concerns. 24 C. NOLA ICE’s Refusal to Abide by the Parole Directive Violates the Due Process Clause.................................................................................................................................... 29 1. Arriving Asylum Seekers Are Protected by the Due Process Clause. ............................ 29 2. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the Due Process Clause. ..................................................................................................................... 31 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF. ................................................................................................................................... 31 III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST BOTH FAVOR INJUNCTIVE RELIEF. ......................................................................................................... 33
CONCLUSION ........................................................................................................................... 34
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TABLE OF AUTHORITIES
Cases
Abdi v. Duke, 280 F. Supp. 3d 373 (W.D.N.Y. 2017) ........................................................... passim Ahad v. Lowe, 235 F. Supp. 3d 676, 687-88 (M.D. Pa. 2017)................................................ 29, 30 Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 372-75 (1998) ........................... 23 Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) ....................... 23 Bellarno Int’l Ltd. v. Food & Drug Admin., 678 F. Supp. 410, 415 (E.D.N.Y. 1988) ................. 21 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)......... 31, 32 Clark v. Martinez, 543 U.S. 371, 381 (2005) ............................................................................... 27 Damus v. Nielsen, 313 F. Supp. 3d 317, (D.D.C., 2018) ....................................................... passim Diaz v. Schiltgen, 946 F. Supp. 762, 764-65 (N.D. Cal. 1996)............................................... 25, 28 Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977).................................................................. 19 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) ............................................. 22 Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) ........... 22, 23 Hernandez v. Sessions, 872 F.3d 976, 995-96 (9th Cir. 2017) ..................................................... 33 Hubbard v. EPA, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986) ............................................................... 29 Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) .......................................................... 24, 27, 28 Jennings, 2017 WL 727754, at *6 (Feb. 21, 2017)................................................................. 21, 23 Lopez v. Fed. Aviation Admin., 318 F.3d 242, 247 (D.C. Cir. 2003) ........................................... 20 Maldonado v. Macias, 150 F. Supp. 3d 788, 800 (W.D. Tex. 2015)............................................ 29 Marczak v. Greene, 971 F.2d 510, 515 (10th Cir. 1992) .............................................................. 25 Mass. Fair Share v. Law Enf. Assistance Admin., 758 F.2d 708, 711 (D.C. Cir. 1985)............... 19 McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988) ..................... 21, 26 Morton v. Ruiz, 415 U.S. 199, 235 (1974) .............................................................................. 19, 20 Nat’l Venture Capital Ass’n v. Duke, 2017 WL 5990122, at *1 (D.D.C. Dec. 1, 2017) .............. 24 Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) .............................................................................. 29 O’Donnell Const. Co. v. D.C., 963 F.2d 420, 429 (D.C. Cir. 1992)............................................. 33 R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015) ................................................ passim Rosales-Garcia v. Holland, 322 F.3d 386, 408 (6th Cir. 2003) ............................................. 29, 30 Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) ....................................... 33, 34 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ......................................... 30, 31 Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010)............................................................ 18 Trudeau v. FTC, 456 F.3d 178, 190 (D.C. Cir. 2006) .................................................................. 29 U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232, 1235 (D.C. Cir. 1994)............................................. 21, 26 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68 (1954) ......................... 19, 20 United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1988).................................................... 32 Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 929, 934-95 (D.C. Cir. 2008) ............. 23 Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985)....... 31, 32 Zadvydas v. Davis, 533 U.S. 678 (2001) ............................................................................... passim
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Statutes § 1252(a)(2)(B)(ii) ........................................................................................................................ 18 5 U.S.C. § 706(2)(A)..................................................................................................................... 18 8 U.S.C. § 1101............................................................................................................................... 3 8 U.S.C. § 1182(d)(5) ................................................................................................................... 26 8 U.S.C. § 1182(d)(5)(A) .................................................................................................... 5, 24, 25 8 U.S.C. § 1225(b)(1)(B)(ii) ..................................................................................................... 4, 24 8 U.S.C. § 1225(b)(1)(B)(v) ........................................................................................................... 4 Other Authorities Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102................................................ 34 U.S. ICE, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of
Persecution or Torture (Dec. 8, 2009)............................................................................... 5, 6, 13 Rules 8 C.F.R. § 208.30(f) ........................................................................................................................ 4 8 C.F.R. § 212.5(b) ............................................................................................................. 5, 20, 26 8 C.F.R. § 212.5(b)(5)................................................................................................................... 26 8 C.F.R. § 235.3(c).......................................................................................................................... 5
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INTRODUCTION For the reasons delineated in this Court’s decision in Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018),), and in this brief, Plaintiffs move this Court to grant their request for a preliminary injunction requiring the U.S. Department of Homeland Security’s (“DHS”) component, the New Orleans Field Office of U.S. Immigration and Customs Enforcement (“NOLA ICE”), to immediately comply with the principles and procedures governing the release from detention of asylum-seekers, otherwise known as the “Parole Directive.” As this Court recently noted, the Parole Directive “establishes the process by which ICE must determine whether an individual who has passed a credible-fear interview—the first step toward gaining asylum status—will be released from detention on parole pending a full hearing.” Id. at 323. The facts of this case are virtually the same as Damus’s, as Plaintiffs assert that NOLA ICE officials have denied their parole requests—and in some cases, access to the parole process altogether—in violation of the Administrative Procedure Act, the Immigration and Nationality Act, and the Due Process Clause of the Fifth Amendment. Fewer than ten years ago, ICE paroled roughly 90 percent of asylum seekers. Id. Now, nationwide parole release rates have plummeted. In no jurisdiction is the parole release rate lower than in DHS’s NOLA ICE Field Office, where, across the five states under its jurisdiction— Alabama, Arkansas, Louisiana, Mississippi, and Tennessee—only two (2) of 130 (1.5 percent) parole requests were granted in 2018. Dkt. 2, ¶ 2. NOLA ICE officials have continued to openly disavow their obligations under the Parole Directive, despite scienter of this Court’s July 2, 2018 preliminary injunction order, and affirmations and representations by NOLA ICE officials that the Parole Directive remains in effect. NOLA ICE officials are fully aware that this Court granted Damus Plaintiffs’ request for a preliminary injunction directing DHS “to comply with the Parole Directive, and to provide
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individualized parole determinations” to asylum seekers. Id. In November 2018, just a few months after this Court’s issuance of the Damus preliminary injunction, a high-ranking NOLA ICE official represented to a nationally-recognized organization of immigration lawyers that the Parole Directive was no longer in effect by “executive order” in the NOLA ICE Field Office, but remained in effect in other field offices due to an injunction (presumably the one issued by this Court in July 2018). Dkt. 15-3, Exh. 12; Dkt. 2, ¶¶ 3-4. As recently as February 2017, then-DHS Secretary John Kelly wrote that the Parole Directive “shall remain in full force and effect.” Dkt. 2, ¶ 5. Over the past year, DHS has represented to the U.S. Supreme Court and this Court in briefs and oral argument that the Parole Directive remains binding policy upon ICE. Id.
Detaining asylum seekers without affording them individualized review of their parole requests, including an assessment of whether they are flight risks or dangers to the community, violates the Parole Directive. As in Damus, these Plaintiffs present evidence that they are likely to succeed on the merits of their claims. NOLA ICE’s total disregard of the Parole Directive has resulted in the prolonged detention of asylum seekers, absent a minimally sufficient determination by ICE that an individual asylum seeker poses a flight risk or a danger to the community, as required by the Parole Directive.
While the Government continues to represent to federal courts, including the U.S. Supreme Court, that the Parole Directive remains in full force and effect, and the law unequivocally requires that government agencies follow their own rules, NOLA ICE officials violate the Parole Directive every day. In granting Damus Plaintiffs’ request for a preliminary injunction, this Court joined another federal court in holding that ICE field offices unlawfully violate the Parole Directive by failing to provide individualized parole reviews to determine whether detention of asylum seekers was justified based on flight risk or danger to the community. See Abdi v. Duke, 280 F. Supp. 3d
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373 (W.D.N.Y. 2017). Plaintiffs present evidence that is virtually the same as the Damus plaintiffs, and therefore urge this Court to reach the same conclusion and preliminarily enjoin NOLA ICE’s violations of the Parole Directive.
Moreover, detention of asylum seekers without considering whether they pose flight or security risks also violates the Immigration and Naturalization Act, 8 U.S.C. § 1101, et seq. (“INA”) and regulations promulgated thereunder. In Jean v. Nelson, the Supreme Court held that a predecessor version of the INA’s parole provision requires immigration authorities to “make individualized determinations of parole.” 472 U.S. 846, 857 (1985). The current version of the parole statute contains the same operative language that formed the basis for the Supreme Court’s ruling in Jean and thus likewise mandates “individualized determinations of parole.” Id. Pursuant to INA regulations, such individualized review must be based on flight risk, danger to the community, and the public interest. Rather than conducting such individualized assessments, however, Defendants instead are unlawfully denying parole to virtually all asylum seekers in their jurisdiction.
Finally, detaining asylum seekers without considering whether detention is necessary based on the specific circumstances of each individual’s case violates the Due Process Clause. Each additional day of detention exacerbates ongoing irreparable harm to these individuals, who may be detained for many months—or even years. Absent Damus-like intervention by this Court, hundreds more asylum seekers detained by NOLA ICE will suffer the same fate. No public interest justifies such unlawful detention. Accordingly, the Court should preliminarily enjoin Defendants’ violations of the Parole Directive in the NOLA ICE Field Office, and require that Plaintiffs and other proposed class members receive individualized determinations of flight risk and danger to the community before they continue to be detained.
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Plaintiffs are asking this Court for “no more than [to] hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance.” Damus, 313 F. Supp. 3d at 323.
FACTUAL BACKGROUND A. Legal Framework Governing Parole Decisions
1. INA and Implementing Regulations The INA requires that a person who requests asylum at a port of entry to the United States undergo an interview with an immigration officer and demonstrate a credible fear of persecution in his or her home country, meaning there is a “significant possibility” that the individual is eligible for asylum. 8 U.S.C. § 1225(b)(1)(B)(v). If an individual establishes a credible fear of persecution, he or she is entitled to a hearing before an immigration judge to adjudicate the asylum claim. See id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). The time from an asylum seeker’s credible fear interview with an immigration officer to a decision on his or her asylum claim by an immigration judge is typically several months. See, e.g., Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 18, 23; Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 15, 24; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 12, 18; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 18, 24; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶¶ 18, 23; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶¶ 15-16, 26; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 12, 19; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶¶ 13, 20; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 13, 33; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 15, 29; Dkt. 16-11, Exh. 11, Girón Martínez Dec. ¶¶ 15, 21. If either the asylum seeker or DHS appeals the immigration judge’s asylum decision to the Board of Immigration Appeals or a federal court of appeals, the process can take longer than a year. See, e.g., Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 18; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 12. (Plaintiffs have remained in immigration detention for over a year).
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DHS, via its component ICE, has the authority to release asylum seekers from detention pending resolution of their asylum claims. Pursuant to the INA, the Secretary of DHS “may . . . in his discretion parole into the United States” “any alien applying for admission to the United States,” including any asylum seeker, “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A) (emphasis). (Emphasis added). The INA’s implementing regulations provide that DHS must exercise its parole discretion on a “case-by-case basis” and that it may parole arriving aliens who “present neither a security risk nor a risk of absconding” and “whose continued detention is not in the public interest.” 8 C.F.R. § 212.5(b); see also 8 C.F.R. § 235.3(c).
2. The Parole Directive In 2009, DHS issued the Parole Directive.1 The Parole Directive defines circumstances under which there is a “public interest” in granting parole pursuant to the INA and implementing regulations. It provides that absent exceptional overriding factors, an asylum seeker who has established a credible fear of persecution should be granted parole in the “public interest,” and released from detention while pursuing his or her asylum claim, so long as the individual establishes his or her identity and presents neither a flight risk nor danger to the community. Parole Directive ¶ 6.2. In considering parole applications, the Parole Directive requires 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.
1 ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, ¶ 4.4 (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf.
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The Parole Directive also delineates a number of procedural requirements for DHS’s adjudication of parole applications. These prescribe that the agency must:
 Provide arriving noncitizens with notice of their right to seek parole, which “shall be explained . . . in a language they understand,” id. ¶ 6.1;
 Conduct a parole interview within “seven days following a finding that an arriving [noncitizen] has a credible fear,” id. ¶ 8.2;
 Provide written notification of the parole decision that contains “a brief explanation of the reasons for any decision to deny parole” within seven days of the interview, id. ¶ 6.5-6.6;
 Notify applicants whose applications are denied that they may request a redetermination, id. § 8.2;
 “Review all relevant documentation offered” by the asylum seeker, as well as “any other information available,” in determining identity, id. ¶ 8.3.1.b;
 “[C]onsider whether setting a reasonable bond and/or” an alternative to detention program would mitigate any flight risk concerns, id. ¶ 8.3.2.c; and
 Engage in supervisory review of individual officers’ decisions, id. ¶ 8.5-8.6. ICE Field Offices have historically relied on the Parole Directive to grant parole to
thousands of asylum seekers with credible fears of persecution, based on individualized findings that their detention was unnecessary. This is not surprising, as the overwhelming majority of asylum seekers who establish a credible fear lack any criminal history, pose no threat to public safety, and do not need to be detained to ensure their appearance for court proceedings.2 DHS has
2 See, e.g., Mark Noferi, “A Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers” at 1, 3 (July 2015) (summarizing research showing that asylum seekers are predisposed to comply with legal processes), available at:), https://www.americanimmigrationcouncil.org/sites/default/files/research/a_humane_approach_ca n_work_the_effectiveness_of_alternatives_to_detention_for_asylum_seekers.pdf.
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not revoked or amended the Parole Directive. As recently as February 2017, then-DHS Secretary John Kelly stated that the Parole Directive “remain[s] in full force.” DHS has not withdrawn or amended the Parole Directive since that time. In 2018, DHS argued before this Court that the Parole Directive remained in full effect, before this Court preliminarily enjoined DHS from violating the Parole Directive. Damus, 313 F. Supp. 3d at 317.
As in Damus, the statistics show that NOLA ICE officials have ceased to implement the Parole Directive. According to ICE data obtained from DHS and analyzed by Plaintiffs’ statistician, from January 2016 through December 2016, NOLA ICE made 229 parole decisions, denying parole in 56 cases (or 24.5 percent of cases). Exh. Declaration of Sophie Beiers (“Beiers Decl.,” attached hereto as 1) ¶ 6. That year, NOLA ICE granted parole in 173 cases (or 75.5 percent of cases). Id. at ¶ 7. That year, NOLA ICE did not provide any reasons for denial.3 Id. From January 2017 through November 2017,4 NOLA ICE made 78 parole decisions. Id. at ¶ 7. From 2016 to 2017, the grant and denial rates completely flipped. In 2017, NOLA ICE denied parole in 64 cases (or 82 percent of cases) and granted parole in 14 cases (or 18 percent of cases). Id. In 2017, NOLA ICE did not list the reasons for denial 97 percent of the time, but they listed the remaining two (2) (2.9 percent) denials as due to “flight risk.” Id.
3 Ms. Beiers believes that some reasons for denial were listed in the “comments” column, but they did not follow the same structure as those listed in the allotted denial category columns. Many “comments” alluded to the absence of a US Sponsor or US Address. See, Exh.1, Beiers Dec. fn. 1. 4 DHS provided Plaintiffs with spreadsheets through November 2019; there was no data included for NOL in June 2017 and Plaintiffs did not receive data for December 2017.
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From January 2018 through January 2019,5 NOLA ICE made 130 parole decisions.6 Id. at ¶ 8. That year, NOLA ICE denied parole in 128 cases (or 98.5 percent of cases) and granted parole in just two (2) cases (or 1.5 percent of cases). Id. In 2018, the reasons for denial were given. NOLA ICE based the lion’s share of denials on flight risk grounds. Id. at ¶ 14. NOLA ICE officials denied parole based on flight risk in 85 cases, or 66.4 percent of cases involving a denial of parole. Id. In ten (10) of the cases denied based on flight risk, NOLA ICE officials noted an additional finding: a prior parole denial had been issued, and there was no basis to reconsider it. Id. Only one case denied due to flight risk was also denied due to NOLA ICE’s determination that the person was a danger to the community. Id. Of the 43 cases (33.6 percent) denied for other reasons outside of flight risk, thirteen (13) were denied solely due to no basis for redetermination and thirty (30) had no reason listed. Id. That means only one denial had anything to do with flight risk.
The statistics above show a remarkable increase in the rate of parole denials in the NOLA ICE Field Office over the last two-and-a-half years. The change from a denial rate of 24.5 percent in 2016 to a denial rate of 98.5 percent for the period between January 2018 to January 2019 demonstrates that NOLA ICE officials have abdicated their responsibility to follow their own Parole Directive. In fact, the NOLA ICE Field Office has the highest rate of parole denials of any field office in the United States.
Given the fact that statistics show that NOLA ICE has the highest parole denial rate in the country, it is unsurprising that a high-ranking NOLA ICE official admitted that the NOLA ICE Field Office had abandoned the Parole Directive by “executive order,” when responding to a
5 DHS provided Plaintiffs’ statistician with spreadsheets through February 2019, but there was no data for NOLA ICE included in the February 2019 spreadsheet. 6 One parole decision date was marked as September 2019. Ms. Beiers believes this was entered erroneously and should have been marked September 2018. This one case is included in the overall 130 figure.
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question from an immigration lawyer regarding whether the Parole Directive was still in effect in the NOLA ICE region. Dkt. 15-3, Exh. 12 at 8. Nor is it surprising that a NOLA ICE official informed the attorney of an asylum seeker that “it was not his call [to deny parole to the attorney’s client]; that it [sic] was a directive to blanket deny paroles [sic] in Louisiana from the New Orleans Field Office Director Trey Lund.” Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16.
Other legal services providers serving facilities located in the NOLA ICE Field Office region confirm that the Field Offices have effectively stopped granting parole. See Dkt. 15-4, Exh. 13, Page Decl. ¶¶ 9-10; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 9; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 9; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17; Exh. 2, Hartle Decl. ¶ 9. Some of these practitioners observed a marked departure from earlier treatment of parole requests, finding that individuals like the named Plaintiffs—who established their identity and pose no flight risk or danger—are now routinely denied parole, while similarly situated clients were routinely granted parole in earlier years. See Dkt. 15-4, Exh. 13, Page Decl. ¶¶ 9-10.
NOLA ICE officers have told practitioners and detained asylum seekers that “there is a blanket directive to deny paroles [sic]” by the NOLA ICE Field Office Director Trey Lund.” Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16. Other NOLA ICE officials have told detainees and legal services providers that they should not rush to turn in documents for their parole requests because ICE does not “give parole” in Louisiana, and that NOLA ICE is “not giving parole to anyone.” Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 24; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 21.
Testimony from Plaintiffs and legal services providers also demonstrates that the NOLA ICE Field Office is not making individualized parole determinations. For example, the former Warden of the Pine Prairie Detention Facility, Indalecio Ramos, told one of the Plaintiffs that
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NOLA ICE officials could not “possibly tend to everyone,” in response to the Plaintiff’s question about never seeing ICE agents at Pine Prairie conducting parole interviews or helping to provide information about parole to the people detained there. Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 25. When asked for the reason that NOLA ICE denies parole to almost everyone who requests it, a NOLA ICE official informed a Plaintiff that “you are all flight risks;” another NOLA ICE official told the same individual that “not even if Trump came to River [the detention facility] would we give out parole.” Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 25, 28.
Instead, the NOLA ICE Field Office issues denials that give no indication that they are considering the evidence submitted in support of the parole requests. The denials typically come as short form letters containing boilerplate language and checkboxes indicating that the asylum seeker poses a “flight risk” or has not sufficiently demonstrated her identity—even when these reasons are facially inconsistent with the evidence submitted. See, e.g., Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 14 (NOLA ICE officer told attorney he denies parole because it would be 99 percent impossible for individual to demonstrate he is not a flight risk); Dkt. 15-6, Exh. 15, Badilla Decl. ¶¶ 10, 15; Dkt. 15-7, Exh. 16, Boyer Decl. ¶¶ 9-11, 17; Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 21; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶ 16; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 20; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 21; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶ 21; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 19; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 16, 20; Dkt 16-10, Exh. 10, F.J.B.H. Decl. ¶ 20; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 17.
In the denial letters, ICE provides no individualized explanation of why parole was denied. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 22; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 23; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 21. One of the Plaintiffs attested that he noticed that NOLA ICE issued him a denial letter identical to his bunkmate’s. Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 21. In some
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cases, ICE has not provided a reason for the denial, or even issued a written decision at all. Dkt. 16-5, Exh. 5, P.S.P. Decl., Exh. C; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 18; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 24, 28.
The evidence also shows that the NOLA ICE Field Office is failing to follow other requirements of the Parole Directive. For instance, asylum seekers are not notified of the availability of parole, with most NOLA ICE officials failing to ensure that detainees receiving parole documents—often in a language they do not understand—are able to understand the content. See Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 16; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 12-14; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 14; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 19; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 13-16; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 16; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶ 13; Dkt 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 16-18; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 16.
When notification is provided, the ICE officer may not “explain the contents of the notification to the [asylum seeker] in a language he or she understands.” Parole Directive § 8.1; see Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 18; Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 16; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 12, 14; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 19; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 19; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 15; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶ 13; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 14; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶ 15; Dkt. 1610, Exh. 10, F.J.B.H. Decl. ¶¶ 16, 19; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶¶ 15-16; Dkt. 15-4, Exh. 13, Page Decl. ¶ 11; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 10; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 4.
Some asylum seekers are denied parole even before they are notified of their ability to seek it. See, e.g., Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 20; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶
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15; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 15-16, 32; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 20; Dkt. 15-6 Exh. 15, Badilla Decl. ¶ 3.
Many asylum seekers are not given parole interviews within seven days of passing a credible fear screening, or even before their parole requests are denied. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 19; Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 18; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶ 14; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 19-20; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 19; Dkt. 166, Exh. 6, R.O.P. Decl. ¶ 18; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶ 15; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 16; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶ 16; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 20, 23; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 16; Dkt. 15-4, Exh. 13, Page Decl. ¶ 12; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 11.
Sometimes the ICE Field Offices simply do not respond to parole requests. Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 20; Dkt. 16-3, Exh. 3, Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 21; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 23; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 18, 20; Dkt. 16-8, Exh. 8, Puche Moreno Delc. ¶ 17; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 16; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 16. When parole interviews and formal denials are provided, the denials frequently are not within seven days of the interview. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 19-20; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 18; Dkt. 15-4, Exh. 13, Page Decl. ¶ 13.
The form denials also typically come in English, regardless of whether the asylum seeker understands English. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 22; Dkt. 16-3, Exh. 3, Y.A.L. Decl., Exh. C; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 20; Dkt. 16-5, Exh. 5, P.S.P. Decl., Exh. C; Dkt. 16-6, Exh. 6, R.O.P. Decl., Exh. C; Dkt. 16-9, Exh. 9, M.R.M.H. Decl., Exh.B; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 19; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 17; Dkt. 15-4, Exh. 13, Page
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Decl. ¶ 14; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 13. In all of these instances, NOLA ICE’s conduct violates the Parole Directive and is evidence that officials in this region are disregarding the Parole Directive in favor of a blanket parole denial policy that does not encompass an individual assessment of each asylum seekers’ potential for flight risk and danger to the community.
Officials at ICE and DHS Headquarters are fully aware of NOLA ICE’s failure to follow the Parole Directive. The Parole Directive specifically requires ICE Headquarters to analyze periodic reporting on parole decisions and take corrective action as needed. See Parole Directive¶¶ 8.11, 8.12. Although ICE Headquarters has been aware of detention practices across the ICE Field Offices for more than two years and that those practices violate the Parole Directive as this Court held in Damus, neither ICE Headquarters, nor the DHS Secretary, who supervises ICE Headquarters, has taken any action to require the NOLA ICE Field Office to follow the Parole Directive. Neither has ICE Headquarters taken action against the NOLA ICE Field Office Director, who NOLA ICE officials assert is implementing an “Executive Order” that abandons the Parole Directive in favor of a blanket denial of parole to asylum seekers. Dkt. 15-3, Exh. 12 at 12; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16.
As a result of NOLA ICE’s unlawful non-compliance with the Parole Directive, Plaintiffs are suffering irreparable harm from their unnecessarily prolonged detention. For example, Plaintiff R.O.P., a physician, fled Cuba because he refused to comply with the Cuban Government’s orders to withhold medically necessary treatment from patients who were political dissidents. Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶¶ 5-11. Cuban government officials punched and threatened R.O.P. with suspension of his medical license, if he did not follow their unethical orders. Id. Faced with physical violence and the prospect of never practicing medicine again for refusing to violate his Hippocratic oath, R.O.P. fled Cuba in July 2018. Id. at ¶ 12. Upon surrendering at a
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port of entry in the U.S. on July 17, 2018, R.O.P. was shuttled from Texas to detention facilities in the NOLA ICE region. Id. at ¶ 14. R.O.P. does not speak English, yet NOLA ICE officials provided parole documents written in English-only to him, never bothering to explain the content. Id. at ¶¶ 15-17. R.O.P. later learned that the documents were a Parole Advisal and Notice, and that he had missed his parole interview, as he had received the documents on the date that the interview was scheduled. Id. After much effort, R.O.P. managed to gather evidence to apply for parole with the help of his U.S. citizen girlfriend; yet NOLA ICE again denied his parole request. Id. at ¶¶ 19-21. R.O.P.’s parole denial letter was identical to his bunkmate’s. The letter stated that he was denied parole because he was a flight risk, even though he had a sponsor and met all other parole criteria. Id. at ¶ 14. With the help of legal counsel, R.O.P. submitted another parole request in September 2018, but he has yet to receive any response from NOLA ICE to that request. Id. at ¶ 23. R.O.P. submitted sponsorship letters, including one from his U.S. citizen girlfriend, to show he is not a flight risk. In addition, as a doctor, he has often cared for other detainees who are not provided adequate medical care, and he has provided evidence of this, demonstrating that is compassionate, productive, and not a danger to the community; yet, a year after arriving in the U.S., NOLA ICE continues to detain him under unsanitary, unhealthy (he has lost 40 pounds since he arrived in the U.S.), and oppressive conditions, and subject to frequent racial abuse. Id. at ¶ ¶ 21-23, 28-39. The Parole Directive should afford R.O.P. the opportunity to be free, but as R.O.P. learned, NOLA ICE has a “blanket ban on parole”, and “justice does not exist [there].” Id. at ¶ 24.
Plaintiff P.S.P., like R.O.P., is a Cuban doctor who fled government persecution because he refused to cause medical harm to pregnant women, and because of his sexual orientation. Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶¶ 5, 11. The Cuban Government beat and tortured P.S.P. because of his political and ethical beliefs, and because of his sexual orientation. Id. at ¶¶ 10-14. Like all of
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the named Plaintiffs, P.S.P. passed his credible fear interview and should have received information about applying for parole. Instead, NOLA ICE officials failed to explain the availability of parole to P.S.P. in a language that he could understand, and he only learned about the process after speaking to other detainees. Id. at ¶ 19. Despite presenting evidence, in accordance with the Parole Directive, establishing that he is not a flight risk nor a danger to the community if he were paroled, P.S.P. remains detained to this day, as NOLA ICE has denied his multiple parole requests. Id. at ¶¶ 21-24.
Plaintiffs Mena López and J.M.R. are conscientious objectors fleeing beatings and torture at the hands of the Cuban Government. Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 5-11; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 7-17. As a trans woman, Plaintiff Mena López has suffered significant medical, physical, and psychological harm while in prolonged detention, despite the fact that she meets all of the requisites for parole under the Parole Directive, and NOLA ICE should have granted her parole, but did not because of their blanket parole denial policy. Id. at ¶¶ 21-25. Like Ms. Mena López, J.M.R. meets all the requisites of the Parole Directive, but NOLA ICE has denied him parole twice, even though he has only ever submitted one request for parole. Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 20-23. J.M.R.’s prolonged detention has harmed his health and, like all of the other Plaintiffs, his ability to work on his asylum case. Id. at ¶¶ 25-31.
Plaintiffs Y.A.L. and M.R.M.H. are suffering irreparable medical harm from their unjust, prolonged detention. Despite meeting the requisites for parole under the Parole Directive, NOLA ICE continues to detain these asylum seekers in facilities that do not provide the medical care they so desperately need, unnecessarily putting their lives at risk. Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 20-24; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 21-36.
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All the Plaintiffs representing the putative class share similar experiences, finding themselves detained in the Kafkaesque bureaucracy that is the NOLA ICE parole process. All the named Plaintiffs are limited-English proficient, and required—but did not receive—interpretation and translation from NOLA ICE officials, in order to understand documents and quickly comply with parole deadlines. See, pp. 11-2, 13, supra. Even in cases where they have been able to retain legal counsel, NOLA ICE officials ignore compelling evidence in support of their parole requests and instead cleaved to their blanket parole denial policy. See, e.g., Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 21-25; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 15-24; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. Exhs. C-I. Plaintiffs Heredia Mons and Toledo Flores presented themselves at ports of entry with their respective partners. Their partners, women who were detained in other ICE Field Offices, are currently free on parole; yet Heredia Mons and Toledo Flores—who have presented virtually the same evidence in support of their parole requests—remain in detention under NOLA ICE. Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 15-20; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 10-20.
As in Damus, DHS has access to statistics clearly showing that the NOLA ICE Field Office has ceased to comply with the Parole Directive, and is currently implementing a policy resulting in the granting of parole requests to only 1.5 percent of detainees. Exh. 1, Beiers Decl. ¶ 13. And like in Damus, without the intervention of this court, DHS will continue to ignore the NOLA ICE Field Office’s non-compliance with internal policy and guidelines, and Plaintiffs and others in their class will continue to suffer in prolonged detention.
All but two of the Plaintiffs are currently detained as they await final adjudications of their asylum claims.7 Plaintiffs already experienced trauma before fleeing their home countries and are
7 The Board of Immigration Appeals recently denied Plaintiff Heredia Mons’s asylum appeal, and he is now subject to a final order of deportation; Plaintiff Roland Nchango Tumenta was granted asylum after the filingfilin of the Complaint in this case.
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thus particularly sensitive to the harm inflicted by continued detention. See Damus, 313 F. Supp. 3d at 342 (discussing testimony of Plaintiff’s expert Dr. Allen Keller, which noted the “harmful effects of immigration detention on the health and well-being of asylum seekers”). With each additional day of incarceration, these harms grow worse. See id.; Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 24-27; Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 21-25; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 18-24; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 26-31; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶¶ 24-28; Dkt. 166, Exh. 6, R.O.P. Decl. ¶¶ 27-39; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 22-26; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶¶ 22-25; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 35-39; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 26-30; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶¶ 21-26; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 12; Dkt. 15-7, Exh. 16, Boyer Decl. ¶¶ 12-17.
LEGAL STANDARD A. Preliminary Issues8
1. Jurisdiction In its decision granting the preliminary injunction sought by the Damus Plaintiffs, this Court acknowledged it had jurisdiction over the matter because, as with the Plaintiffs in this case, the Damus Plaintiffs alleged “that ICE [was], as a matter of general course, not complying with the policies and procedures of the Parole Directive;” and the Damus Plaintiffs were “not challenging the outcome of ICE’s decision-making, but the method by which parole is currently being granted (or denied).” See Damus 313 F. Supp. 3d at 327 (emphasis added). Like the Damus Plaintiffs, the Plaintiffs in this action are “challeng[ing] an overarching agency” action as unlawful—in this case, Defendants’ systematic failure to follow the Parole Directive and to instead
8 Plaintiffs have filed a separate Memorandum in Support of Motion for Class Certification, Dkt. 15-1, wherein they set forth their arguments for class certification.
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impose detention without its safeguards and individualized determinations.” Id. (citing R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015));). See also, Abdi, 280 F. Supp. 3d at 385373, 385 (W.D.N.Y. 2017) (federal district court had jurisdiction beyond the jurisdictional bar of § 1252(a)(2)(B)(ii) where plaintiffs were not asking the court to review the propriety of any given parole decision, but, instead, simply sought compliance with certain minimum procedural safeguards when parole decisions are made). See Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding that §1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction over “challenge[s to] the extent of the Attorney General’s [discretionary] authority” over detention).
2. Legal Requisites for Establishing a Preliminary Injunction In deciding whether to issue a preliminary injunction, a court must consider “whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest.” Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Plaintiffs meet these requirements.
ARGUMENT I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. Plaintiffs are Likely to Show That the NOLA ICE Field Office’s Departure From the Parole Directive Violates the APA, Being Arbitrary, Capricious, and Contrary to Law.
The APA requires that courts “hold unlawful and set aside agency action” that is “arbitrary, capricious, . . . or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As set forth below, NOLA ICE’s failure to implement the Parole Directive should be preliminarily enjoined because it is arbitrary, capricious, and contrary to law. As this Court established in Damus, the NOLA ICE
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Field Office is bound by the Accardi doctrine to comply with the Parole Directive, and its failure to do so is arbitrary, capricious, and contrary to law.
This Court held that the Parole Directive “is binding agency policy and . . . can be challenged via an Accardi claim.” Damus, 313 F. Supp. 3d at 338. Pursuant to the Accardi doctrine, “government agencies are bound to follow their own rules, even self-imposed procedural rules that limit otherwise discretionary decisions.” Jefferson v. Harris, 2018 WL 324209, at *6 (D.D.C. Jan. 5, 2018) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68 (1954)); accord Abdi, 280 F. Supp. 3d at 386. In particular, “[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235 (1974); accord Jefferson, 2018 WL 324209 at *6 (“interference with regulations that seek to safeguard a plaintiff’s individual rights implicates the Accardi doctrine and its requirement that agencies abide by their own procedures”); Abdi, 280 F. Supp. 3d at 389 (violation of “internal policy” implicates Accardi doctrine if it “pertains to individual rights”).
The requirement that an agency follow its own directives is not “limited to rules attaining the status of formal regulations.” Mass. Fair Share v. Law Enforcement Assistance Admin., 758 F.2d 708, 711 (D.C. Cir. 1985); cf.1985); accord Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977) (whether provisions of nonregulatory agency guidance were binding depended on analysis of language, intent, and context).). Rather, even an unpublished manual or policy binds the agency if “an examination of the provision’s language, its context, and any available extrinsic evidence” supports the conclusion that it is “mandatory rather than merely precatory.” Doe, 566 F.2d at 281; see also Mass. Fair Share, 758 F.2d at 711-12 (invalidating agency action that violated the “highlyrefined procedures for treatment of applications for grants” found in internal program documents); Jefferson, 2018 WL 324209, at *6 (plaintiff pleaded valid Accardi claim based on agency
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violations of its “policies,” “regulations[,] and guidelines”). Again, this is particularly so “[w]here the rights of individuals are affected,” Morton, 415 U.S. at 235, and where the guidance provides one of “the only safeguard[s] . . . against unlimited agency discretion.” Lopez v. Fed. Aviation Admin., 318 F.3d 242, 247 (D.C. Cir. 2003).
This Court held that in circumstances strikingly similar to those at issue in this case that the Parole Directive was binding on DHS under the Accardi Doctrine. Damus, 313 F. Supp. 3d at 338. Consistent with its status as a “directive,” the Parole Directive imposes numerous substantive and procedural obligations on DHS and ICE, many of which affect the “rights of individuals.” Morton, 415 U.S. at 235. Most importantly, the Parole Directive “explain[s] how the term [‘public interest’ in 8 C.F.R. § 212.5(b)] is to be interpreted by [DHS] when it decides whether to parole arriving aliens.” Parole Directive ¶ 4.4. In doing so, the Directive instructs 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. § 6.2. Moreover, if a noncitizen “establishes to the satisfaction of [DHS] his or her identity and that he or she presents neither a flight risk nor danger to the community, [DHS] should, absent additional factors . . . parole the alien оn the basis that his or her continued detention is not in the public interest.” Id.
As noted, the Parole Directive also mandates that DHS “shall” follow a number of procedures in making parole decisions, such as the requirement that its officers inform asylum seekers of the availability of parole in a language they understand. Id. ¶ 6.1; see also supra at 6-7. All of the referenced substantive and procedural provisions impose obligations on the agency that it is bound to follow, and that affect whether or not individuals will continue to be deprived of their liberty.
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The Government itself has conceded that the Parole Directive imposes meaningful constraints on how DHS adjudicates parole requests. The Government recently represented to the United States Supreme Court that the Parole Directive requires DHS to “automatically consider parole for arriving aliens found to have a credible fear, and to release the alien if he establishes his identity, demonstrates that he is not a flight risk or danger, and there are no countervailing considerations.” Pet. Suppl. Reply Br., Jennings, 2017 WL 727754, at *6 (Feb. 21, 2017). The Government also represented that the Directive requires a parole review that “calls for far more than ‘checking a box on a form,’” and specifically “provides for notice to the alien, an interview, the opportunity to respond and present evidence,” and other procedural requirements. Id. The Government further represented to the Supreme Court that the Parole Directive provides critical safeguards against the arbitrary detention of arriving asylum seekers and that it remains “in full force and effect.” See id. at *6 n.2; see also Abdi, 280 F. Supp. 3d at 379 (recognizing that the Government “recently embraced” the Parole Directive before the Supreme Court, “telling the Justices that it remained in full force and effect”).
Despite the Government’s representations, the NOLA ICE Field Office—like the five Field Offices involved in the Damus litigation—has simply stopped following the Parole Directive. Statistics show that from January 2018 to January 2019, NOLA ICE granted parole requests to only 1.5 percent9 of applicants—by far the lowest parole approval rate of any ICE Field Office in
9 There is no doubt that the NOLA ICE Field Office’s overwhelming denial rate demonstrates a departure from the Parole Directive’s requirement of individualized determinations. See, e.g., McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988)1988) (four departures out of approximately 100 decisions was insufficient to show willingness to depart from model on individualized basis); U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232, 1235 (D.C. Cir. 1994)1994) (where agency “exercised discretion in only one out of over 300 cases,” it would show “little support for the [agency’s] assertion that it intended not to be bound”); Bellarno Int’l Ltd. v. Food & Drug Admin., 678 F. Supp. 410, 415 (E.D.N.Y. 1988)) (“two . . . instances of deviation” out of 386 decisions “can hardly form the basis for a finding of agency discretion”).
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the United States. NOLA ICE officials have admitted to legal service providers and asylum seekers in its custody that there is a “blanket” parole denial policy/directive, and have openly discouraged legal service providers and detainees from wasting their time applying for parole. Dkt. 15-3, Exh. 12 at 8; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 24; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 21.
The testimony of attorneys with clients in custody of NOLA ICE confirms that NOLA ICE has abandoned the Parole Directive. Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 15-4, Exh. 13, Page Decl. ¶ 10; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17. As one legal services provider notes: “the New Orleans Field Office has created insurmountable barriers for arriving asylum seekers to gain release from detention under the Parole Directive. . . . it appears that New Orleans ICE officials are not giving due consideration to parole applications.” Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17.
Defendants’ failure to follow the Parole Directive is arbitrary and capricious for an additional reason: DHS cannot lawfully change its position on an established policy like the Parole Directive without “display[ing] awareness that it is changing position” and “show[ing] that there are good reasons for the new policy.” Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) [hereinafter, “) [Fox TV”]; accord Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Where, as here, an agency effectively abandons a prior policy, it must provide a more detailed explanation than if it were writing on a blank slate—particularly in light of the “serious reliance interests that must be taken into account.” Fox TV, 556 U.S. at 51516.
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Neither DHS nor, by extension, the NOLA ICE Field Office, has officially acknowledged that it has changed its policy.10 In fact, it has done precisely the opposite by representing to the Supreme Court in 2017 and to this Court in 2018 that the Parole Directive remains “in full force and effect.” Pet. Suppl. Reply Br., Jennings, 2017 WL 727754, at *6 n.2; Damus, 313 F. Supp. 3d at 326 ( (Defendant DHS asserted that ICE continues to implement Parole Directive). Nor has DHS provided any explanation, much less a reasoned explanation, for departing from the Parole Directive. Accordingly, its actions are arbitrary and capricious under Fox TV.
Further, while NOLA ICE’s abandonment of the Parole Directive may not have been in response to a written policy change, the requirement that an agency provide a reasoned explanation for a policy change applies equally to explicit and sub silentio departures from prior policy and practice. See, e.g., Fox TV, 556 U.S. at 515 (agency cannot “depart from a prior policy sub silentio or simply disregard rules that are still on the books”); Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) (agency cannot depart from “established pattern of agency conduct” without reasoned explanation).
Plaintiffs urge this Court to follow its own precedent set in Damus and to enjoin NOLA ICE’s unexplained departure from the Parole Directive, as Plaintiffs are likely to show that NOLA ICE is implementing a new, unwritten blanket parole denial policy in violation of the APA. See, e.g., Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 929, 934-95 (D.C. Cir. 2008); see also Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 372-75 (1998) (agency must follow its announced standard in adjudications, and cannot adopt different standard in practice).
10 NOLA ICE officials have admitted to legal services providers and some of the named Plaintiffs that the NOLA ICE Field Office is implementing a policy of “blanket” parole denials. See Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 15-4, Exh. 13, Page Decl. ¶ 10; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17.
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The overwhelming statistical and testimonial evidence clearly demonstrates that NOLA ICE has departed from the policy set forth in the Parole Directive in violation of the APA.
B. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the INA and Its Implementing Regulations, and It Implicates Constitutional Concerns. The language of the INA and its regulations mandate individualized parole reviews. The
failure of the NOLA ICE Field Office to provide individualized parole reviews not only violates the Parole Directive; it also violates the INA. Accordingly, even if DHS were to revoke the Parole Directive and to provide reasoned grounds for doing so, the failure of the NOLA ICE Field Office to consider release on parole based on the facts of each case still would be unlawful.
The INA establishes that an arriving asylum seeker initially “shall be detained,” 8 U.S.C. § 1225(b)(1)(B)(ii)), but that the Attorney General (now the DHS Secretary) then “may . . . in his discretion parole” such individuals into the United States on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A); accord Nat’l Venture Capital Ass’n v. Duke, 2017 WL 5990122, at *1 (D.D.C. Dec. 1, 2017) (“The [INA] . . . grants the Secretary of Homeland Security the discretionary authority to parole individuals into the United States on a case-by-case basis.”). According to the Supreme Court, release on parole is an “express exception” to detention and is a “specific provision authorizing release.” Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018).
Under established Supreme Court precedent, the INA provision that the Attorney General “may, in his discretion” release individuals on parole mandates that Defendants in fact make individualized parole decisions. In Jean v. Nelson, the Supreme Court considered a predecessor version of the parole statute. Jean, 472 U.S. at 848. Like the current version, it provided that the Attorney General “may in his discretion” release individuals applying for admission into the United States on parole. Id. at 859 (internal quotation marks omitted). Specifically, the version of
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the parole statute at issue in Jean provided that the Attorney General (or his designee) “may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States.” Id. (quoting predecessor version of 8 U.S.C. § 1182(d)(5)(A)) (internal quotation marks omitted). Based on this language, the Supreme Court remanded the case before it with instructions that the lower court determine “whether INS officials exercised their discretion under § 1182(d)(5)(A) to make individualized determinations of parole.” Id. at 857 (emphasis added).
The Supreme Court thus determined in Jean that the words “may in his discretion parole” require immigration authorities to consider a putative parolee’s individual circumstances in determining whether release on parole is appropriate. See, e.g., Marczak v. Greene, 971 F.2d 510, 515 (10th Cir. 1992) (Jean requires that immigration authorities “‘make individualized determinations of parole’” (quoting Jean, 472 U.S. at 857)); accord Diaz v. Schiltgen, 946 F. Supp. 762, 764-65 (N.D. Cal. 1996) (under predecessor version of parole statute, “[t]he District Director is required to ‘make individualized determinations of parole’” (quoting Jean, 472 U.S. at 857)). “[I]n each case a district director must determine whether a particular person is likely to flee, and whether that person’s continued detention would be in the public interest.” Marczak, 971 F.2d at 515 (emphasis added).
As noted, like the predecessor version of the parole statute at issue in Jean, the current statute provides that the Attorney General “may, in his discretion” release asylum seekers on parole. Jean thus mandates individualized parole reviews in this case and precludes parole determinations “on the basis of broad, non-individualized policies.” Indeed, unlike the predecessor version of the parole statute, the current version of the statute expressly states that parole should
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be considered on a “case-by-case basis,” 8 U.S.C. § 1182(d)(5)), making it all the more clear that individualized review is required.
The NOLA ICE Field Office is not making “individualized determinations of parole.” Rather, in denying parole in nearly 100 percent of cases, Exh. 1, Beiers Dec. ¶ 13, NOLA ICE officials are implementing a “broad, non-individualized policy” of general detention—without regard to whether an individual asylum seeker is a flight risk or a danger to the community, or whether detention of the asylum seeker is otherwise in the public interest.11
Beyond the statute, NOLA ICE also violates regulations promulgated pursuant to the parole statute. The regulations define when DHS may permissibly exercise its parole discretion “on a case-by-case basis.” 8 C.F.R. § 212.5(b). They provide that arriving asylum seekers are eligible for parole if they “present neither a security risk nor a risk of absconding” and if their “continued detention” is determined not to be in “the public interest.” 8 C.F.R. § 212.5(b)(5). 8 C.F.R. § 212.5(b)(5). Read in conjunction with the statute, the regulations require an individualized parole review in which an immigration official considers whether an individual asylum seeker presents a flight risk or a danger to the community and if his or her release is in the public interest. See id. The NOLA ICE Field Office is not engaging in the required individualized consideration. See supra at 9. Their failure to do so violates INA regulations and is contrary to law under the APA.
Finally, NOLA ICE’s blanket parole denial policy implicates constitutional concerns by depriving individuals of a fundamental interest in freedom from custody. Zadvydas v. Davis, 533 U.S. at 690 (“A statute permitting indefinite detention of an alien would raise a serious
11 Just as the statistical evidence demonstrates that NOLA ICE officials have impermissibly departed from the Parole Directive, see supra atpp. 8-9, the evidence also confirms that NOLA ICE has stopped exercising the discretion required by statute. See, e.g., McLouth Steel Prod. Corp., 838 F.2d at 1321; U.S. Tel. Ass’n v. F.C.C., 28 F.3d at 1235.
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constitutional problem.”). The doctrine of constitutional avoidance precludes NOLA ICE’s blanket parole denial policy and mandates that the INA and its regulations be construed to require individualized parole determinations based on flight risk and danger to the community. Courts must read a statute to avoid serious constitutional problems when it is “fairly possible” to do so. Id. at 689. See (2001); see also Clark v. Martinez, 543 U.S. 371, 381 (2005) (constitutional) (the avoidance canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”); Jennings, 138 S. Ct. at 843 (canon “permits a court to choose between competing plausible interpretations of a statutory text” (internal quotation marks and emphasis omitted)). Courts have consistently “read significant limitations” into the “immigration statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689.
Therefore, the parole statute and regulations must be construed to require individualized parole determinations founded on whether an individual is a flight risk or a danger to the community, clearly the opposite of NOLA ICE’s blanket parole denial policy. As discussed above, the Supreme Court’s decision in Jean mandates that construction and, in all events, such construction is “fairly possible.” In R.I.L-R., this Court addressed a section of the INA providing that the Attorney General “may continue to detain” or may instead release a non-citizen on bond or conditional parole pending a decision on whether he or she should be removed from the United States. The Government argued that “the statute contains no limitation on the Executive’s discretion to detain, nor does it enumerate the factors that may be considered.” R.I.L-R. 80 F. Supp. 3d at 186. Applying the doctrine of constitutional avoidance, the Court held that the provision did not afford DHS unfettered discretion to detain individuals absent individualized assessments of flight risk or danger to the community. The Court determined that the phrase “may continue to
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detain” must instead be construed to mean that immigration authorities only “may continue to detain” individuals when continued detention is consistent with due process principles—i.e., when detention is justified by circumstances specific to the individual’s case, like flight risk or danger to the community. Id. at 190.
Similarly, in Zadvydas, the Supreme Court addressed whether the words “may detain” in the INA authorized the Government to effect indefinite detention of migrants. Applying the constitutional avoidance doctrine, the Court determined that “may detain” must be construed in the context of the Due Process Clause and held that “while ‘may’ suggests discretion, it does not necessarily suggest unlimited discretion.” 533 U.S. at 697; accord Jennings, 138 S. Ct. at 844 (discussing avoidance analysis in Zadvydas).
The words “may, in his discretion, parole . . . on a case-by-case basis” cannot appropriately be construed to give the Government unfettered discretion simply to deny parole in virtually all cases, without considering whether continued detention of asylum seekers is necessary based on flight risk or danger to the community. Nor can the words appropriately be construed to authorize the NOLA ICE Field Office to deprive asylum seekers of their liberty for months or years on end in order to send a message to others. To so construe the statute would improperly render this sole “exception to detention” for arriving asylum seekers (Jennings, 138 S. Ct. at 844) a meaningless nullity. See, e.g., Diaz, 946 F. Supp. at 766.
Consistent with due process, the words “may, in his discretion, parole . . . on a case-bycase basis” rather require that the Government in fact exercise discretion in evaluating parole requests on a “case-by-case” basis.” Moreover, pursuant to the regulations, the Government must exercise such case-by-case discretion based on flight risk, danger to the community, and the public interest. As evidenced by the testimony from legal services providers, NOLA ICE has forsaken
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individualized parole assessments in favor of a blanket parole denial policy in violation of the INA. Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 15-4, Exh. 13, Page Decl. ¶ 10; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17.
C. NOLA ICE’s Refusal to Abide by the Parole Directive Violates the Due Process Clause.
Separate from the APA, NOLA ICE’s failure to abide by the Parole Directive also violates the Due Process Clause. See Trudeau v. FTC, 456 F.3d 178, 190 (D.C. Cir. 2006) (independent cause of action exists to remedy constitutional violations); Hubbard v. EPA, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986) (“[T]he court’s power to enjoin unconstitutional acts by the government . . . is inherent in the Constitution itself . . . .”).
1. Arriving Asylum Seekers Are Protected by the Due Process Clause. While the Supreme Court in Jennings did not reach the issue, numerous courts have found that the Due Process Clause protects against the arbitrary detention of “arriving” (or “excludable”) noncitizens like Plaintiffs. See, e.g., Rosales-Garcia v. Holland, 322 F.3d 386, 408 (6th Cir. 2003) (en banc) (finding serious constitutional problems with indefinite detention of excludable noncitizens); Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) (same); Ahad v. Lowe, 235 F. Supp. 3d 676, 687-88 (M.D. Pa. 2017) (“rising sea of case law” “has consistently determined that detained aliens,” including arriving noncitizens, “are entitled to some essential measure of due process”); Maldonado v. Macias, 150 F. Supp. 3d 788, 800 (W.D. Tex. 2015)TExh. 2015) (“[I]t is clear that aliens—even inadmissible aliens—are entitled to some constitutional protections, including some amount of due process.”); see also Rosales-Garcia, 322 F.3d at 410 n.29 (“[N]o circuit has concluded that the Due Process Clauses of the Fifth and Fourteenth Amendments do not apply to excludable aliens.”).
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Zadvydas reinforces this conclusion. Seven of nine Justices in Zadvydas agreed that even noncitizens who had lost all legal right to reside in the United States had the right to “freedom from [unjustified] physical restraint,” 533 U.S. at 690; see also id. at 721 (Kennedy, J., dissenting) (acknowledging “serious” and “obvious” constitutional problems arising from arbitrary detention of noncitizens with removal orders, and stating that “both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious”). If noncitizens who have no legal right to be in the United States have such due process protections, it follows that those who—like Plaintiffs—do have a right to pursue legitimate asylum claims must have at least the same rights. See, e.g., Ahad, 235 F. Supp. 3d at 688 (“Given the scope of the due process protections provided to detained aliens, and acknowledged by the courts in the past, it would be anomalous to completely deny this modest measure of due process to detainees held pursuant to § 1225(b).”).
Defendants may rely on the Supreme Court’s decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), to argue that Plaintiffs lack due process rights because they presented themselves at ports of entry. Such reliance on Mezei would be unfounded. Mezei may be read to suggest that certain arriving noncitizens do not have due process rights with respect to their admission to the United States where national security is at issue. See id. at 215 (“we do not think that respondent’s continued exclusion deprives him of any statutory or constitutional right” (emphasis added)); id. at 216 (“respondent’s right to enter the United States depends on the Congressional will”). But Mezei does not mean that such individuals lack due process rights with respect to arbitrary detention.
The en banc Sixth Circuit emphasized in Rosales-Garcia that any such broad reading of Mezei was “eclipsed” by later Supreme Court cases that “rigorously delineated” “the contours of constitutionally permissible civil detention.” Rosales-Garcia, 322 F.3d at 413-14. Rosales-Garcia
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further explained that the Mezei court “explicitly grounded its decision in the special circumstances of a national emergency and the determination . . . that Mezei presented a threat to national security”—circumstances that are absent in this case. Id.
2. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the Due Process Clause.
Pursuant to the Due Process Clause, the Government may not detain asylum seekers on grounds not reasonably related to the legitimate purposes of preventing flight or protecting the community. Zadvydas, 533 U.S. at 690. As this Court has acknowledged, Zadvydas “grounds its analysis of immigration detention in principles derived from the wider civil-commitment context.” R.I.L-R., 80 F. Supp. 3d at 189. Plaintiffs’ detention based on NOLA ICE’s blanket denial of parole—rather than an individualized determination that detention is warranted due to flight risk or danger to the community—deprives Plaintiffs of their due process rights. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE
RELIEF. Like the Damus Plaintiffs, the Plaintiffs have presented evidence showing that they are suffering or will suffer irreparable harm absent this Court’s intervention: “asylum-seekers are being denied parole without the protections of the ICE Directive. . . . instead, they are subject to a de facto ‘no-parole’ reality, under which detention has become the default option. . . . being deprived of the safeguards of the Parole Directive harms putative class members in a myriad ways.” Damus 313 F.3d at 342. In order to establish irreparable harm, the moving party must show that the injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). The injury must also be “both certain and great; it must be actual and not
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theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id.
In this case, Plaintiffs and those similarly situated will suffer irreparable harm without injunctive relief. First, their injury is imminent and certain. They are currently being detained at NOLA ICE facilities. As this and other courts have recognized, detention irreparably harms Plaintiffs and other putative class members “in myriad ways.” Id.; R.I.L-R., 80 F. Supp. 3d at 191; Abdi, 280 F. Supp. 3d at 404 (detained asylum seekers suffered irreparable harm in “negative physical and mental health effects of prolonged detention and the fact that their continued detention has prevented putative class members from adequately preparing for their asylum hearings before an immigration judge”).
Moreover, Plaintiffs already experienced trauma before fleeing their home countries, and are thus particularly vulnerable to the harm inflicted by continued detention, which “worsen[s] symptoms of trauma and severely impede[s] the ability of asylum seekers to recover from their physical and mental conditions.” Damus, 313 F. Supp. 3d at 342 (citing to the Declaration of Allen S. Keller, “discussing the harmful effects of immigration detention on the health and well-being of asylum-seekers”). These harms only grow worse with each additional day of incarceration. Id. As such, the injuries caused by NOLA ICE’s policy of blanket denials of parole are “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy, 454 F.3d at 297 (internal quotation marks and citation omitted).
Plaintiffs’ injuries also are “beyond remediation.” Plaintiffs do not seek monetary compensation for their injuries. Rather, they seek injunctive and declaratory relief setting aside NOLA ICE’s blanket parole denial policy. The “unnecessary deprivation of liberty clearly constitutes irreparable harm.” United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1988)
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(citation omitted). And “[u]nlike economic harm, the harm from detention pursuant to an unlawful policy cannot be remediated after the fact.” R.I.L-R., 80 F. Supp. 3d at 191. III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST BOTH FAVOR
INJUNCTIVE RELIEF. Plaintiffs ask this Court to follow its own precedent set out in Damus and enjoin an unlawful and unconstitutional policy to prevent irreparable harm to numerous vulnerable asylum seekers. Each Plaintiff seeks nothing more than an individualized review to determine whether there is a need for him or her to be detained. Neither the Government nor the public has any legitimate interest in denying Plaintiffs this modest relief. Indeed, the Government itself has expressly determined that the “continued detention” of asylum seekers who have passed credible fear, established their identity, and are not flight risks “is not in the public interest.” Parole Directive § 6.2. Numerous courts, including this Court, have recognized that the likelihood that individuals “will . . . be deprived of their physical liberty . . . in the absence of the injunction” weighs heavily in favor of granting preliminary relief. E.g., Hernandez v. Sessions, 872 F.3d 976, 995-96 (9th Cir. 2017) (describing numerous harms suffered by noncitizens in immigration detention); SeretseKhama v. Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) (“[T]he harm to petitioner if he is not released is immeasurably significant.”). These grave harms far outweigh any countervailing governmental interest. Moreover, the “issuance of a preliminary injunction would serve the public’s interest in maintaining a system of laws” where the Government must comply with its constitutional and legal obligations. O’Donnell Const. Co. v. D.C., 963 F.2d 420, 429 (D.C. Cir. 1992); see also R.I.L-R., 80 F. Supp. 3d at 191 (explaining that public interest is served by injunction that “ends an unlawful practice” and ensures compliance with the APA) (citation and quotation marks
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omitted); Seretse-Khama, 215 F. Supp. 2d at 54 (“the public interest is served by petitioner’s release” because continued unlawful detention “poses serious constitutional risks”); Abdi, 280 F. Supp. 3d at 410 (“Granting preliminary injunctive relief will simply require Respondents to comply with their legal obligations and afford Petitioners procedural protections in connection with Respondents’ exercise of discretion.”).
It is important to note that treating asylum seekers with basic fairness and dignity is among our nation’s best traditions and a source of public interest and pride. See Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102 (“[I]t is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including . . . admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States.”). It is not in the public interest to arbitrarily detain asylum seekers, or to hamper their ability to effectively argue for asylum, so that they can be more easily sent back to where they come from.
In short, the balance of harms and the public interest decisively favor requiring NOLA ICE to follow the law, and afford asylum seekers the process required by DHS’s own binding Parole Directive, as well as by the INA and the Due Process Clause.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for a class-wide preliminary injunction should be GRANTED.
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Dated: July 18, 2019
Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

Respectfully submitted,
//s// Melissa Crow____________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org
Attorneys for Plaintiffs *Admitted pro hac vice

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Case 1:19-cv-01593-JEB Document 22-2 Filed 07/18/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Ángel Alejandro Heredia Mons, et al., on

)

behalf of themselves and others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

Kevin K. McALEENAN, Acting Secretary of

) )

the Dep’t of Homeland Security, in his official )

capacity, et al.,

)

Defendants.

) )

Civil Action No. 1:19-cv-01593-JEB

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Upon consideration of Plaintiffs Motion for Preliminary Injunction and accompanying Memorandum In Support, and for good cause shown, the motion is GRANTED. It is hereby ORDERED that:
1. Plaintiffs’ Motion for a Preliminary Injunction is GRANTED; 2. Plaintiffs’ Motion for Class Certification, dated March 20, 2018 (ECF No. 11), is
GRANTED on a provisional basis for purposes of this preliminary injunction, and Plaintiffs’ counsel are appointed as Class Counsel; 3. Defendants are hereby ENJOINED from denying parole to any provisional class members absent an individualized determination, through the parole process, that such provisional class member presents a flight risk or a danger to the community; 4. The individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class

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Case 1:19-cv-01593-JEB Document 22-2 Filed 07/18/19 Page 2 of 2 member’s case. Such determinations, moreover, shall not be based on categorical criteria applicable to all provisional class members;
5. Defendants shall provide provisional class members with parole determinations that conform to all of the substantive and procedural requirements of U.S. Immigration and Customs Enforcement, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009); and
6. Within seven days of this Order, the parties will meet and confer to develop a notice that explains the requirements of this Order and provides class members with contact information for Class Counsel. IT IS SO ORDERED. _________________________________ United States District Court Judge
Date:
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EXHIBIT
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DECLARATION OF SOPHIE BEIERS I, Sophie Beiers, upon my personal knowledge, hereby submit this declaration and declare as follows: 1. I am a Data Journalist at the American Civil Liberties Union (ACLU) national office. Before I worked for the ACLU, I worked as Senior Data Analyst at YouthTruth, an education non-profit and a project of The Center for Effective Philanthropy. I hold a bachelor’s degree in Psychology from Pitzer College and a master’s degree in Quantitative Methods in Social Sciences from Columbia University. 2. My work was supervised and checked by Brooke Watson, Senior Data Scientist at the ACLU. Before she worked for the ACLU, she worked as Research Scientist at the EcoHealth Alliance, a nonprofit organization where she used statistics and mathematical modelling to research infectious disease. She holds a master’s degree in Epidemiology from the London School of Hygiene and Tropical Medicine and a bachelor’s degree in Microbiology from the University of Tennessee. 3. I analyzed the numbers found below using data produced by U.S. Immigration and Customs Enforcement (“ICE”) in response to a request under the Freedom of Information Act (“FOIA”), 2019-ICLI-00010. The data summarizes parole decisions by the ICE Field Offices from January 2016 through February 2019 for arriving aliens found to have a credible fear of persecution. Because the records at issue are voluminous and cannot be conveniently examined in court, this declaration contains a summary of the parole data for the ICE New Orleans Field Office pursuant to Federal Rule of Evidence 1006. 4. The location of New Orleans-specific data in the FOIA response varied depending on the year at issue. For 2018 and 2019, I analyzed fourteen (14) Excel spreadsheets titled
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Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 3 of 5

“redacted CredFearReport [month/year].” Within those spreadsheets were tabs titled “NOL” which

contained New Orleans-specific data. For 2016 and 2017, I analyzed data in three Excel

spreadsheets that contained, respectively, all 2016 data, cumulative 2017 data from January

through September, and cumulative data from October and November 2017. The New Orleans-

specific data appeared in summarized tabs at the front of each of these three Excel spreadsheets.

To my knowledge, ICE did not provide data on parole decisions by the ICE New Orleans Field

Office in December 2017. Each row of data represented an individual and contained the following

fields: his or her assigned field office; the document control office (“dco”); the date of the credible

fear finding; the date of the parole interview; the date of the parole decision; the parole decision

itself; and if parole was denied, the reasons for the parole denial. Five “denial category” columns

were included to indicate the reason parole was denied for each individual. The five denial

categories are: “identity,” “flight risk,” “danger to the community,” “additional factors” and “prior

parole denial/no basis for re-determination provided.” The field office associated with NOL data

was “FNL” and the “dco” was “NOL.” Those two values were switched a small percentage of the

time.

5.

To calculate the number of parole decisions per month, I used the data in the

column “date parole decision served.” To analyze the outcome of parole decisions, I used the “final

decision” column, which indicated one of two decisions regarding parole: “denied” or “granted.”

To analyze the reasons for denials, I combined the five columns titled “denial category” and

marked whether the denial reason was based on flight risk alone; flight risk with additional factors;

no basis for redetermination on a prior parole denial; or whether no reason for denial was marked

at all.

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6. From January 2016 through December 2016, the ICE New Orleans Field Office made 229 parole decisions. That year, ICE denied parole in 56 cases (or 24.5 percent of cases). ICE granted parole in 173 cases (or 75.5 percent of cases). No reasons for denial were given in the allotted columns pertaining to “denial category.”1
7. From January 2017 through November 2017,2 the ICE New Orleans Field Office made 78 parole decisions. That year, ICE denied parole in 64 cases (or 82 percent of cases). ICE granted parole in 14 cases (or 18 percent of cases). Regarding reasons for denial, the allotted “denial category” columns contained no reasons 97 percent of the time. The remaining percentage represented two (2) denials that did contain a reason for denial: flight risk.
8. From January 2018 through January 2019,3 the ICE New Orleans Field Office made 130 parole decisions.4 During this period, ICE denied parole in 128 cases (or 98.5 percent of cases). ICE granted parole in two (2) cases (or 1.5 percent of cases). For this period, most denials specified the reason for the denial. In the large majority of cases, the denial was based on flight risk grounds. ICE denied parole based on flight risk in 85 cases, or 66.4 percent of cases involving a denial of parole. Ten of the cases denied based on flight risk were also denied based on ICE finding no basis to re-determine a prior parole denial. One case denied due to flight risk was also denied due to ICE’s determination that the person was a danger to the community. Of the remaining 43 cases
1 We believe that some reasons for denial were listed in the “comments” column, but they did not follow the same structure as those listed in the allotted denial category columns. Many “comments” alluded to the absence of a U.S. Sponsor or U.S. Address. 2 The government provide us with spreadsheets through November 2019; there was no data included for NOL in June 2017 and we did not receive data for December 2017. 3 The government provided us with spreadsheets through February 2019, but there was no data for NOL included in the February 2019 spreadsheet. 4 One parole decision date was marked as September 2019. I believe this was entered erroneously and should have been marked September 2018. This one case is included in the overall 130 figure.
3

Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 5 of 5 (33.6 percent) denied for other reasons outside of flight risk, thirteen (13) were denied solely due to no basis for redetermination and thirty (30) had no reason listed.
I declare under penalty of perjury and under the laws of the District of Columbia and the United States that the foregoing is true and correct to the best of my knowledge. Executed in New York, New York on July 9, 2019. Sophie Beiers
4

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 1 of 6
EXHIBIT
2

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 2 of 6

DECLARATION OF JULIE HARTLE, ESQ.

I, Julie Hartlé, Esq. declare as follows:

1. I am over the age of eighteen, am competent to testify as to the matters below, and

make this declaration based on personal knowledge.

2. I am an attorney in good standing with the State Bar of California since 2018.

3. I work as a solo practitioner defending asylum seekers pro bono. I am also a

consultant specializing in housing policy for HUD low-income and disaster-relief programs.

4. As part of my work, I provide direct representation to a plaintiff and putative class

representative in Heredia Mons v. McAleenan, Case 1:19-cv-01593(JEB) (D.D.C. filed May 30,

2019): M R M H

5. I am providing representation to Mr. M

H

before government

agencies and for two purposes: (i) the Executive Office for Immigration Review, where I represent

him in asylum proceedings before the LaSalle Immigration Court in Jena, Louisiana and (ii) I

collaborate with my co-counsel, Helen Boyer on parole requests to ICE;

6. Mr. M H

suffers from severe food allergies. In ICE custody, the food

provided to him has provoked several severe allergic reactions, some of them life-threatening. On

four occasions, he has gone into anaphylactic shock, a potentially fatal condition where his throat

closes up and he is unable to breathe.

7. Because of his serious medical condition, Mr. M

H

has sought

release on parole five times. The occurrences of anaphylaxis, chest pain, and coughing up blood

continued, even after being transferred to LaSalle ICE Processing Center, supposedly for its

superior health care. One doctor examined Mr. M H

in person and two other doctors

were given permission to look at his medical records for analysis. All three of these doctors

concluded that Mr. M

H

has not received adequate care and that his life is in

imminent danger. Counsel Boyer submitted requests for release on parole with medical

documentation on April 17, 2019, June 5, 2019, and finally July 3, 2019. Counsel Boyer submitted

two doctor’s reports with the first two requests and added a third in the last report.

8. I collaborated with Counsel Boyer and Mr. M H

on his fifth parole

request, particularly to emphasize that Mr. M H

would be represented throughout

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 3 of 6

his asylum proceedings, including throughout attendant appeals, and to alert the agency to its

violation of disability rights law. This led Mr. M H

deportation officer to email

me asking when the assessments were completed and to provide documentation of them.

9. Since the medical assessments were clearly marked in the table of contents for each

parole request, this led me to conclude not only that the deportation officer had not looked at the

documentation submitted with our July 3, 2019, parole request, but that he had not looked at any

medical documentation in the previous requests, either. A man’s life was at stake and the officers

did not even take the time to look at the table of contents of attachments, much less the actual

contents, before denying the requests.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

Executed this 14 day of July, 2019 in Alexandria, Louisiana.

Julie Hartlé, Esq.

7/14/2019

Case 1:19-cv-01G5m9ai3l --PJaEroBle reqDueosct aunmd leitignattio2n2fo-r4M FileMd 07H/18/19 Page 4 of 6
Julie Hartle <julie.hartle@gmail.com>

Parole request and litigation for M

M

H

Moffett, Grayson L <Grayson.L.Moffett@ice.dhs.gov> To: Julie Hartle <julie.hartle@gmail.com>

Good Morning,

Fri, Jul 5, 2019 at 7:19 AM

I have received your request and I am in the process of reviewing the request and will send to FOD Sutterfield for approval or denial.

You have stated that there has been 2 independent medical doctors analysis.

Do you have documentation on these appointments? Can you please provide?

Thanks,

Grayson Moffett
Deportation Officer Enforcement and Removal Operations Immigration and Customs Enforcement 1010 E. Whatley Road Oakdale, LA 71463 Office: (318)335-7500

From: Julie Hartle <julie.hartle@gmail.com> Sent: Friday, July 5, 2019 9:10 AM To: Lund, Trey <Trey.Lund@ice.dhs.gov>; Outreach, New Orleans <NewOrleans.Outreach@ice.dhs.gov>; Moffett, Grayson L <Grayson.L.Moffett@ice.dhs.gov> Cc: Helen Boyer <hb@alotrolado.org> Subject: Parole request and litigation for M M H
July 5, 2019
[Quoted text hidden]
https://mail.google.com/mail/u/0?ik=b6b7190d71&view=pt&search=all&permmsgid=msg-f%3A1638228435617417196&simpl=msg-f%3A16382284356… 1/2

7/14/2019

Case 1:19-cv-01G5m9ai3l --PJaEroBle reqDueosct aunmd leitignattio2n2fo-r4M FileMd 07H/18/19 Page 5 of 6

https://mail.google.com/mail/u/0?ik=b6b7190d71&view=pt&search=all&permmsgid=msg-f%3A1638228435617417196&simpl=msg-f%3A16382284356… 2/2

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 6 of 6

LIST OF EXIllBITS IN SUPPORT OF REQUEST FOR RELEASE ON PAROLE FOR

M

R M

H

EXHIBIT A Birth Certificate (

2000), Respondent's birth

8-10

certificate from Honduras, including translation.

EXHIBITB

Credible Fear Worksheet and Interview Transcript Establishing Credibility of Identity

11-25

EXHIBITC

Sponsor Letter and Supporting Documents (February 24,

2019), Letter ofsupportfrom T

P

regarding

sponsorship; Mr. P

and Ms. L M

U.S.

passports; Mr. P

U.S. Social Security 1099 and W-2 Form.

26-31

EXHIBITD

Medical Evaluation by Dr. David J. Holcombe (April 30,

2019), Evaluating Mr. M

medical condition, and

concluding that ICE detention "poses a danger to his immediate

health and wellbeing. "

32-33

EXHIBITE

Medical Letter by Dr. Kate Sugarman (May I, 2019),

34

Describing Mr. M

medical conditions, and concluding that

Mr. M

"is at extremely high risk ofdying in ICE custody

from a preventable condition. "

EXHIBITF Medical Letter by Dr. Jessica Bod (July 3, 2019), Describing 35

Mr. M

medical conditions, and concluding that Mr.

M

"is at high risk ofdying in ICE custody."

EXHIBITG Letter from Attorney Julie Hartle (March 11, 2019),

36

Describing attorney's willingness to continue representation of

Mr. M and ensure he attends future court hearings.

EXHIBITH

Letter from Father Timothy L. Kitzke (April4, 2019),

37

Describing the priest's willingness to welcome Mr. M

into

his congregations and connect Mr. M

with spiritual support.

EXHIBIT I

Letter from Voces De La Frontera (April2019), Describing the 38 community organization's willingness to support Mr. M through his integration into the Milwaukee community.

EXHIBIT J

Letter of Support from M

K (February 20, 2019), 39-40

Letter ofsupportfrom a friend ofMr. M and a U.S. citizen.

7

 Case 1:19-cv-01593-JEB Document 15 Filed 06/28/19 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Ángel Alejandro Heredia Mons, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593 ) ) ) ) ) )

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs respectfully move this court to certify a class pursuant to Rule 23(a) and 23(b)(2)

of the Federal Rules of Civil Procedure and Local Rule 23.1. In support of their motion, Plaintiffs

rely on the accompanying Memorandum, declarations, and exhibits.

A proposed order is attached.

Statement Pursuant to Local Rule 7(m)

Pursuant to Local Rule 7(m), on June 17 and 18, 2019, Plaintiffs’ counsel, Luz Virginia

López, repeatedly attempted to confer with Defendants’ counsel, the Office of Immigration

Litigation, U.S. Department of Justice (“OIL”), to determine whether Defendants would consent

to the relief requested herein. Ms. Lopez left several telephone messages for Sarah B. Fabian,

Lead Attorney at OIL, which have yet to be returned. On June 18, 2019, Ms. Lopez again

contacted OIL and spoke with attorney Kathleen A. Connolly. Ms. Connolly stated that she did

not have the authority to confer on this matter, and informed Ms. Lopez that someone would soon

1

Case 1:19-cv-01593-JEB Document 15 Filed 06/28/19 Page 2 of 3

contact her to discuss. As of the date of this filing, Defendants’ counsel has not contacted Ms. Lopez to confer about the relief requested herein, despite Plaintiffs’ repeated attempts to confer.

Dated: June 28, 2019
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 East Ponce De Leon Ave, Suite 340 Decatur, GA 30030 Tel: (404) 521-6700 Laura.Rivera@splcenter.org
Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org
*admitted pro hac vice

Respectfully submitted:
//s// Melissa Crow___________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia Lopez* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org Luz.Lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 / fax: (404) 221-5857 Mary.Bauer@splcenter.org

2

Case 1:19-cv-01593-JEB Document 15 Filed 06/28/19 Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that, on June 28, 2019, I electronically filed the attached PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION and the related memorandum, proposed order, and exhibits with the Clerk of Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case. I further certify that I emailed a copy of the attached motion and the related memorandum, proposed order, and exhibits to Defendants as follows:

Sara B. Fabian U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 PH: (202) 532-4824 FX: (202) 616-8962 sarah.b.fabian@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Kathleen Ann Connolly U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 PH: (202) 305-8627 FX: (202) 307-8781 kathleen.a.connolly@usdoj.gov
ATTORNEY TO BE NOTICED

Respectfully submitted:
//s// Melissa Crow_____________
Melissa Crow (D.C. Bar No. 453487) SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org

3

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ÁNGEL ALEJANDRO HEREDIAMONS, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593(JEB) ) ) ) ) ) )

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org

Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org

Attorneys for Plaintiffs * Admitted pro hac vice

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 2 of 22
TABLE OF CONTENTS INTRODUCTION……………………………………………………...…………………………1 FACTUAL BACKGROUND……………………………………………………………………. 2 LEGAL STANDARD……..………………………………………………………………………6 ARGUMENT…………………………………………………………………………………..….6 I. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE 23(a).
A. The Proposed Class Satisfies the Numerosity Requirement……………………6, 7 B. The Proposed Class Satisfies the Commonality Requirement…………………….9 C. The Proposed Class Satisfies the Typicality Requirement………………………11 D. The Proposed Class Satisfies the Adequacy Requirement………...…………….13 II. THE PROPOSED CLASS IS ADEQUATELY DEFINED FOR CERTIFICATION…..14 III. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE 23(b)(2)…15 IV. THE COURT SHOULD DESIGNATE PLAINTIFFS’ COUNSEL AS CLASS COUNSEL……………………………………………………………………………….16 CONCLUSION ………………………………………………………………………………….17
i

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 3 of 22
TABLE OF AUTHORITIES
Cases
Abdi v. Duke, No. 1:17-CV-0721 EAW, 2017 WL 6507248 (W.D.N.Y. Dec. 19, 2017) ............2, 10, 16
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................................................................6
Barnes v. District of Columbia, 242 F.R.D. 113 (D.D.C. 2007) ......................................................................................... 14
Brewer v. Lynch, 2015 WL 13604257 (D.D.C. Sept. 30, 2015) ...................................................................15
Bynum v. Dist. of Columbia, 214 F.R.D. 27 (D.D.C. 2003) ..................................................................7, 8, 10, 11, 13, 15
Coleman v. Dist. of Columbia, 306 F.R.D. 68 (D.D.C. 2015) ..............................................................................................7
Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) ....................................................................2, 4, 11, 16
Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006) ............................................................................................7, 8
DL v. Dist. Of Columbia, 302 F.R.D. 1 (D.D.C. 2013) ......................................................................................7, 9, 14
DL v. Dist. of Columbia, 713 F.3d 120 (D.C. Cir. 2013) ......................................................................................9, 10
Feinman v. F.B.I., 269 F.R.D. 44 (D.D.C. 2010) ............................................................................................12
Johnson v. Dist. of Columbia, 248 F.R.D. 46 (D.D.C. 2008) ................................................................. 7, 9, 11, 13, 14, 16
Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998) ..........................................................................................14
R.I.L-R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ........................................................................11, 15, 16
ii

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 4 of 22
Richards v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006) ............................................................................................6
Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181 (D.D.C. 2013) ..................................................................................12
Taylor v. Dist. of Columbia Water & Sewer Auth., 241 F.R.D. 33 (D.D.C. 2007) ........................................................................................9, 15
Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014) ....................................................................................14, 15
Twelve John Does v. Dist. of Columbia, 117 F.3d 571 (D.C. Cir. 1997) ..........................................................................................13
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ......................................................................................................6, 10
Statutes 8 U.S.C. § 1158 ...............................................................................................................................6 8 U.S.C. § 1182(d)(5) .....................................................................................................................4 8 U.S.C. § 1225(b)(1)(B) ....................................................................................................... 2, 3, 6
Other Authorities 8 C.F.R. § 1.2 ..................................................................................................................................6 8 C.F.R. § 208.2(b) .........................................................................................................................3 8 C.F.R. § 208.30 ............................................................................................................................3 8 C.F.R. § 208.31 ............................................................................................................................6 8 C.F.R. § 212.5 ..............................................................................................................................4 Fed. R. Civ. P. 23(a)(1) ...........................................................................................................6, 7, 9 Fed. R. Civ. P. 23(a)(2) .............................................................................................................9, 11 Fed. R. Civ. P. 23(a)(3) ...........................................................................................................11, 13
iii

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 5 of 22 Fed. R. Civ. P. 23(a)(4) .................................................................................................................13 Fed. R. Civ. P. 23(b)(2)........................................................................................................6, 15, 16 Fed. R. Civ. P. 23(g)(1)..................................................................................................................16 Memorandum from John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementi ng-the-PresidentsBorder-Security-Immigration-Enforcement-ImprovementPolicies.pdf ………..............................4 U.S. ICE, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) ........................................................................................3, 4
iv

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 6 of 22
INTRODUCTION Plaintiffs file this class action to challenge the policy of the New Orleans Field Office of U.S. Immigration and Customs Enforcement (“ICE”) to categorically deny release from custody to asylum seekers who have shown a credible fear of persecution while their cases are pending. The categorical denial of release on parole contravenes a policy directive requiring ICE officers to release on parole asylum seekers who present neither a flight risk nor a danger to the community. New Orleans ICE Field Office’s no-parole policy also violates the Immigration and Nationality Act (“INA”) and its implementing regulations and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Plaintiffs seek a declaration that the policy is unlawful and an injunction requiring an individualized parole determination for each class member to determine whether he or she poses a flight risk or a danger to the community that justifies his or her detention. Pursuant to Federal Rule of Civil Procedure 23, the named Plaintiffs seek certification of the class set forth below on behalf of all others who are similarly situated. All arriving asylum seekers who: a. are found to have a credible fear of persecution or torture; b. who are or will be detained by U.S. Immigration and Customs Enforcement; c. after having been denied parole under the authority of the New Orleans ICE Field
Office. Plaintiffs’ proposed class satisfies all the requirements of Rule 23(a) and 23(b)(2). With hundreds of class members, the class is sufficiently numerous. The New Orleans ICE Field Office subjects all class members to a common no-parole policy, regardless of where they are detained. Class representatives are subject to the same policy as all class members, and are therefore typical of the class. Class representatives and their experienced counsel will fairly and adequately represent the class. The class is adequately defined for certification. And the New Orleans ICE Field Office has acted on grounds generally applicable to the class through its no-parole policy,
1

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 7 of 22
such that an injunction and declaration with respect to the whole class is appropriate. This and other courts have recently certified or provisionally certified similar classes of asylum seekers with credible fear to whom ICE has denied parole. See Damus v. Nielsen, 313 F. Supp. 3d 317, 322 (D.D.C. 2018) (provisionally certifying class); Abdi v. Duke, No. 1:17-cv-0721 EAW, 2017 WL 6507248 (W.D.N.Y. Dec. 19, 2017). This Court similarly should certify the proposed class and appoint Plaintiffs’ counsel as class counsel.
FACTUAL BACKGROUND Plaintiffs are eleven1 asylum seekers who requested asylum upon arriving at a port of entry to the United States and who are now detained by ICE, under the authority of the New Orleans ICE Field Office). See Declaration of Ángel Alejandro Heredia Mons (“Heredia Mons Decl..” attached hereto as Exh. 1) ¶¶ 4, 13; Declaration of Dayana Mena López (“Mena López Decl.,” attached hereto as Exh. 2) ¶¶ 4, 12; Declaration of Y.A.L. (“Y.A.L. Decl.,” attached hereto as Exh. 3) ¶¶ 4, 11; Declaration of J.M.R. (“J.M.R. Decl.,” attached hereto as Exh. 4) ¶¶ 4, 18; Declaration of P.S.P. (“P.S.P. Decl.,” attached hereto as Exh. 5) ¶¶ 4, 17; Declaration of R.O.P. (“R.O.P. Decl.,” attached hereto as Exh. 6) ¶¶ 4, 12; Declaration of Adrián Toledo Flores (“Toledo Flores Decl.,” attached hereto as Exh. 7) ¶¶ 4, 10; Declaration of Douglas Enrique Puche Moreno (“Puche Moreno Decl.,” attached hereto as Exh. 8) ¶¶ 4, 11; Declaration of M.R.M.H. (“M.R.M.H. Decl.,” attached hereto as Exh. 9) ¶¶ 4, 10, 11; Declaration of F.J.B.H. (“F.J.B.H. Decl.,” attached hereto as Exh. 10) ¶¶ 4, 12; and Declaration of Miguel Angel Girón Martínez (“Girón Martínez Decl.,” attached hereto as Exh. 11) ¶¶ 4, 14. Each Plaintiff was interviewed by an asylum officer pursuant to 8 U.S.C. § 1225(b)(1)(B), and ultimately determined to have a credible fear of persecution or torture. See Heredia Mons Decl.
1 Plaintiff Roland Nchango Tumenta was granted asylum; he is no longer a Plaintiff in this case. 2

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 8 of 22
¶¶ 14-17; Mena López Decl. ¶ 15; Y.A.L. Decl. ¶ 12; J.M.R. Decl. ¶ 19; P.S.P. Decl. ¶ 18; R.O.P. Decl. ¶¶ 14-15; Toledo Flores Decl. ¶ 12; Puche Moreno Decl. ¶¶ 13-14; M.R.M.H. Decl. ¶ 12; F.J.B.H. Decl. ¶ 15; Girón Martínez Decl. ¶¶ 14-15. That means “there is a significant possibility, taking into account the credibility of the statements made by [the Plaintiff] in support of the [Plaintiff]’s claim[s] and such other facts as are known to the officer, that [the Plaintiff] could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v); see also 8 C.F.R. § 208.30 (describing credible fear interview and determination process). Each Plaintiff was thus entitled to pursue an asylum claim in removal proceedings before an immigration judge. See 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.2(b).
Although none of the Plaintiff asylum seekers is a flight risk or dangerous, and there is no question as to their identity, all have been detained and denied parole by the New Orleans ICE Field Office. See Heredia Mons Decl. ¶ 20; Mena López Decl. ¶ 21; Y.A.L. Decl. ¶ 17; J.M.R. Decl. ¶¶ 21-24; P.S.P. Decl. ¶¶ 21-22; R.O.P. Decl. ¶ 21; Toledo Flores Decl. ¶¶ 15, 20; Puche Moreno Decl. ¶ 17, 21; M.R.M.H. Decl. ¶¶ 14, 15, 19, 23, 27, 31; F.J.B.H. Decl. ¶¶ 20, 23; Girón Martínez Decl. ¶¶ 17, 20.
Until recently, ICE, bound by a December 2009 Directive, generally released asylum seekers found to have a credible fear of persecution or torture on parole after ICE agents made case-by-case determinations as to whether asylum seekers posed a flight risk or a danger to the community. See ICE Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) (“Parole Directive”). The Parole Directive provides that “when an arriving alien found to have a credible fear establishes . . . his or her identity” and shows “based on the facts of the individual alien’s case... that he or she presents neither a flight risk nor danger to the community, [ICE] should . . . parole the alien on the basis that his or her
3

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 9 of 22
continued detention is not in the public interest.” Parole Directive ¶ 6.2. In recognizing that detention of asylum seekers who do not pose a flight risk or danger is not in the public interest, the Directive implements the parole statute, which provides that the Secretary of DHS “may . . . in his discretion parole into the United States” “any alien applying for admission to the United States” on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5); 8 C.F.R. § 212.5.
The Parole Directive has not been expressly superseded or repealed by any subsequent policy directive or rule. To the contrary, government officials have made numerous statements that the Parole Directive remains in effect. A February 2017 memorandum from former DHS Secretary John Kelly states that the Parole Directive “remain[s] in full force and effect” pending the Secretary’s “further review and evaluation.”2 Counsel for the government also has represented to the Supreme Court and this Court that the Parole Directive “remains in full force and effect.” Supp. Reply Br. for Pets., at 6 n.2, Jennings v. Rodriguez, No. 15-1204 (filed Feb. 21, 2017); Damus, 313 F. Supp. 3d at 340. In spite of that, in November 2018, the New Orleans ICE Field Office issued a written statement to regional immigration practitioners taking the contradictory position that the Parole Directive was dead letter. See Email from New Orleans ICE Field Office to American Immigration Lawyers Association Midsouth Region (attached hereto as Exh. 12).
Like other ICE jurisdictions across the country, the New Orleans ICE Field Office has effectively rescinded the Parole Directive and adopted a de facto policy of detaining all or nearly all arriving asylum seekers with credible fear. In 2016, the New Orleans ICE Field office granted
2 Memorandum from John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, at 9-10 (Feb. 20, 2017) (“Kelly Memo”), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-PresidentsBorder-Security-Immigration-Enforcement-Improvement-Policies.pdf.
4

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75.86 percent of parole requests.3 In 2017, the parole grant rate dropped by 54 points to 21.88 percent.4 In 2018, the parole grant rate plummeted to just two percent, with the New Orleans ICE Field Office granting only two of 130 parole requests.
Beyond the data are the experiences of legal services providers who confirm that the New Orleans ICE Field Office has effectively stopped giving due consideration to parole requests. See Declaration of Allyson Page (“Page Decl.”) ¶ 10; Declaration of Joseph S. Giardina (“Giardina Decl.”) ¶¶ 9, 14; Declaration of Olga Badilla (“Badilla Decl.”) ¶¶ 5, 6; Declaration of Helen Boyer (“Boyer Decl.”) ¶ 17. These attorneys attest to the wholesale turnabout in the New Orleans ICE Field Office’s manner of adjudicating parole requests. See Page Decl. ¶¶ 9-10 (noting that previously, “if an arriving asylum seeker had generally met the requirements outlined for release by the 2009 Parole Memorandum, they would be granted parole by the New Orleans ICE ERO Field Office,” whereas now, “ICE [] no longer grant[s] detainees parole”); Giardina Decl. ¶ 16; Badilla Decl. ¶¶ 10, 12 (attesting to conversation with ICE agent that left her with impression that “it didn’t matter” whether or not she submitted documents in support of parole application); Boyer Decl. ¶¶ 10, 17. The practitioners also have heard directly from ICE officers in the New Orleans ICE Field Office that “there [is] a directive to blanket deny paroles in Louisiana. See Giardina Decl. ¶ 16 (attesting to conversation with ICE agent who explained denial of parole by saying “it was not his call there was a directive to blanket deny paroles in Louisiana”); id. at ¶ 17 (attesting to separate conversation where ICE agent explained “it would be 99% impossible to demonstrate to him that a detainee was not a flight risk or a danger in order for him to grant parole”).
3 Plaintiffs expect to supplement the record with the relevant data in short order. 4 Id.
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In light of this, Plaintiffs move to certify a class consisting of: (1) all arriving asylum seekers5; (2) who are found to have a credible fear of persecution or torture6; and (3) who are or will be detained by ICE; (4) after having been denied parole under the authority of the New Orleans ICE Field Office.
LEGAL STANDARD Federal Rule of Civil Procedure 23 “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). The requirements are two-fold. Under Rule 23(a), Plaintiffs must establish numerosity, commonality, typicality, and adequacy of representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). This “ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). Under Rule 23(b), Plaintiffs must establish one of its three subsections. Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). In this case, Plaintiffs argue that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
ARGUMENT I. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE 23(a).
A. The Proposed Class Satisfies the Numerosity Requirement. The proposed class is “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no specific threshold that must be surpassed in order to satisfy the
5 See 8 C.F.R. § 1.2. 6 See 8 U.S.C. §§ 1225(b)(1)(B)(v), 1158; 8 C.F.R. § 208.31.
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numerosity requirement; rather, each decision turns on the particularized circumstances of the case.” Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 25 (D.D.C. 2006). In this Court, proposed classes of at least 40 members have met the numerosity requirement absent exceptional circumstances. See, e.g., Johnson v. Dist. of Columbia, 248 F.R.D. 46, 52 (D.D.C. 2008); Bynum v. Dist. of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003); Disability Rights Council of Greater Wash., 239 F.R.D. at 25.
Rule 23(a)(1) does not require a showing as to the exact number of class members. See Johnson, 248 F.R.D. at 53, Bynum, 214 F.R.D. at 32. An estimate will suffice so long as it has a reasonable evidentiary basis. Feinman v. F.B.I., 269 F.R.D. 44, 49 (D.D.C. 2010). Courts may “draw reasonable inferences from the facts presented to find the requisite numerosity.” Coleman v. Dist. of Columbia, 306 F.R.D. 68, 76 (D.D.C. 2015).
“Demonstrating impracticability of joinder” for purposes of numerosity “does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.” DL v. Dist. Of Columbia, 302 F.R.D. 1, 11 (D.D.C. 2013) (internal quotation marks and citation omitted), aff’d, 860 F.3d 713 (D.C. Cir. 2017). Relevant factors include the “financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.” Id. (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)).
Here, joinder is impractical firstly because of the number of people suffering from the alleged harms. In 2018 alone, the New Orleans ICE Field Office denied 128 requests for parole by asylum seekers who passed their credible fear interviews. Declaration of Sophie Beiers (“Beiers Decl.”) ¶ 7. This figure, coupled with evidence of the dramatic expansion of detention bed space under the jurisdiction of the New Orleans ICE Field Office over the last two years, means that at
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present, many more asylum seekers with a credible fear have been detained and denied parole
pursuant to the blanket no parole policy. As detailed in Plaintiffs’ Complaint and supported by
news reports, ICE has tripled its capacity to confine people in its custody in Louisiana over the
past several months.
A May 2019 report tallied about 2,800 beds across several local Louisiana jails shifted to
a new use since 2017—to warehouse migrants for ICE: 1,000 in Richwood, 250 in Bossier, 1,000
in Jackson, and 500 at River.7 In Mississippi, under the jurisdiction of the New Orleans ICE Field
Office, up to 1,300 asylum-seekers may be confined in Tallahatchie, a so-called “asylum
processing center.”8 And just this month, local officials announced that the Winn Correctional
Center in Winnfield, Louisiana will confine up to 1,500 migrants for ICE.9 Given this alarming
expansion, many more individuals will become class members in the future. These facts alone
satisfy numerosity. See, e.g., Disability Rights Council of Greater Wash., 239 F.R.D. at 25; Bynum,
7 See Bryn Stole, “As fewer inmates fill Louisiana jails, wardens turn to immigration officials to fill bunks, budgets,” The Advocate (May 9, 2019), available at: https://www.theadvocate.com/new_orleans/news/article_5bda8872-7271-11e9-836ab76530b7c21c.html. See also, KNOE News, “More than a thousand migrant detainees from the border to be housed at the Richwood Correctional Facility,” (April 4, 2019), available at: https://www.knoe.com/content/news/More-than-a-thousand-migrant-detainees-from-the-borderto-be-housed-at-the-Richwood-Correctional-Facility--508150181.html; Noah Lanard, “Louisiana Decided to Curb Mass Incarceration. Then ICE Showed Up.” Mother Jones (May 1, 2019), available at: https://www.motherjones.com/politics/2019/05/louisiana-decided-to-curb-massincarceration-then-ice-showed-up/. 8 See, e.g., Noah Lanard, “ICE is Sending Hundreds of Asylum-Seekers to a Private Prison in Mississippi,” Mother Jones (Feb. 15, 2019) available at: https://www.motherjones.com/politics/2019/02/ice-is-sending-hundreds-of-asylum-seekers-to-aprivate-prison-in-mississippi/. 9 See Juanice Gray, “Immigrant detainees arrive,” Natchitoches Times (June 14, 2019), available at: https://www.natchitochestimes.com/2019/06/14/immigrant-detainees-arrive/; Noah Lanard, “ICE Is Sending Asylum-Seekers to the Private Prison Where Mother Jones Exposed Abuse,” (June 11, 2019), available at: https://www.motherjones.com/politics/2019/06/ice-is-sendingasylum-seekers-to-the-private-prison-where-mother-jones-exposed-abuse/.
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214 F.R.D. at 32; Johnson, 248 F.R.D. at 52; Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007).
Many other reasons make joinder impracticable in this case. Joinder is inherently impracticable where, as here, “the class seeks prospective relief for future class members, whose identities are currently unknown and who are therefore impossible to join.” DL, 302 F.R.D. at 11. Most putative class members have limited financial resources, speak little to no English, and know little to nothing about U.S. immigration law. See Page Decl. ¶¶ 14-15 (“In my experience, parole denial notices are written in English even when the recipients do not speak or read English.”); Badilla Decl. ¶ 4 (“It was also difficult for us to confirm whether the immigrants’ parole requests had in fact been denied because none of the immigrants in the group of 17 we were assisting could read or write English”); id. at ¶ 12 (noting parole clients’ need for pro bono asylum lawyers, and difficulty in navigating legal system); Giardina Decl. ¶ 13. Taken together, these factors create insurmountable obstacles for detained asylum seekers to institute individual suits in defense of the rights asserted in this case.
The proposed class thus satisfies the numerosity requirement of Rule 23(a)(1). B. The Proposed Class Satisfies the Commonality Requirement. Rule 23(a)(2), which requires “questions of law or fact common to the class,” is likewise satisfied. The key to commonality is that class members’ claims must depend on “a common contention [] capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal–Mart Stores, 564 U.S. at 350. Commonality is satisfied where there is a single or “uniform policy or practice that affects all class members.” DL v. Dist. of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013). “[S]o long as a
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single aspect or feature of the claim is common to all proposed class members,” such as a generally applicable policy or practice, “factual variations among the class members will not defeat the commonality requirement.” Bynum, 214 F.R.D. at 33. “Even a single common question will” support a commonality finding. Wal-Mart Stores, 564 U.S. at 359 (internal alternations and citations omitted). For example, a proposed class consisting of illegally detained persons satisfies the commonality requirement even if the class members were detained for different reasons or amounts of time. See Bynum, 214 F.R.D. at 34.
The proposed class here satisfies these requirements. All class members are or will be detained after having been found to have a credible fear of persecution in their home countries. All have been detained pursuant to a “uniform policy or practice” of denying them parole without individualized reviews of flight risk or dangerousness. See DL, 713 F.3d at 128. The class members all challenge the legality of the government’s categorical denial of parole on the same grounds. They all allege that categorical denial of parole violates the INA and its implementing regulations as well as the U.S. Constitution, and that it is an arbitrary and capricious and unlawful departure from ICE’s own Parole Directive. A determination of whether the blanket no parole policy is unlawful on one or more of these grounds will resolve the issues the class is facing “in one stroke.” Wal–Mart Stores, 564 U.S. at 350; see also Abdi, 2017 WL 6507248, at *6 (proposed class satisfies commonality because “this Court’s conclusion that the Buffalo Federal Detention Facility is violating the [Parole] Directive would resolve the . . . claims of all members of the proposed class”).
Plaintiffs have statistical evidence that the Policy has been applied to all class members, each of whom has been (or will be) denied parole pursuant to the Policy. In the New Orleans ICE Field Office, parole grant rates have dropped precipitously. While in past years, the New Orleans
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ICE Field Office paroled nearly all asylum seekers who were found to have a credible fear pursuant to the Parole Directive,10 in 2018, the New Orleans ICE Field Office denied 98.5 percent of the same group’s parole requests pursuant to the Policy. Beiers Decl. ¶ 7. Commonality is satisfied under these circumstances. See Damus, 313 F. Supp. 3d at 335; R.I.L-R., 80 F. Supp. 3d at 182 (commonality satisfied where plaintiffs “have provided ample evidence that nearly every [class member]” has been detained pursuant to policy). The proposed class therefore satisfies the commonality requirement of Rule 23(a)(2).
C. The Proposed Class Satisfies the Typicality Requirement. Plaintiffs’ claims also are “typical of the claims . . . of the class.” Fed. R. Civ. P. 23(a)(3). Typicality means that the representative plaintiffs must “possess the same interest and suffer the same injury” as the other class members. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (internal quotation marks and citations omitted). The typicality and requirements often overlap because both “serve as guideposts” to determine whether a class action is practical and whether the representatives’ claims are sufficiently interrelated with class claims to “fairly and adequately protect[]” absent class members. Id. at 157 n.13. Courts liberally construe the typicality requirement, such that factual variations between the representative plaintiffs and the absent class members “do not negate typicality.” Bynum, 214 F.R.D. at 34. “Rather, if the named plaintiffs’ claims are based on the same legal theory as the claims of the other class members, it will suffice to show that the named plaintiffs’ injuries arise from the same course of conduct that gives rise to the other class members’ claims.” Id. at 35. See also Johnson, 248 F.R.D. at 53 (internal quotation marks and citation omitted).
10 See note 3, supra. 11

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Here, Plaintiffs, the proposed class representatives, have “suffered injuries in the same general fashion as absent class members.” Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 196 (D.D.C. 2013) (internal quotation marks and citation omitted). Like the other putative class members, Plaintiffs, the proposed class representatives, are asylum seekers detained under the authority of the New Orleans ICE Field Office. See Heredia Mons Decl. ¶¶ 4-13; Mena López Decl. ¶¶ 4, 12; Y.A.L. Decl. ¶¶ 4, 11; J.M.R. Decl. ¶¶ 4, 18; P.S.P. Decl. ¶¶ 4, 17; R.O.P. Decl. ¶¶ 4, 12; Toledo Flores Decl. ¶¶ 4, 10; Puche Moreno Decl. ¶¶ 4, 11; M.R.M.H. Decl. ¶¶ 4, 10, 11; F.J.B.H. Decl. ¶¶ 4, 12; Girón Martínez Decl. ¶¶ 4-14. Like the putative class, Plaintiffs have been interviewed by asylum officers and found to have a credible fear of persecution. See Heredia Mons Decl. ¶¶ 14-17; Mena López Decl. ¶ 15; Y.A.L. Decl. ¶ 12; J.M.R. Decl. ¶ 19; P.S.P. Decl. ¶ 18; R.O.P. Decl. ¶¶ 14-15; Toledo Flores Decl. ¶ 12; Puche Moreno Decl. ¶¶ 13-14; M.R.M.H. Decl. ¶ 12; F.J.B.H. Decl. ¶ 15; Girón Martínez Decl. ¶¶ 14-15.
Similarly, the New Orleans ICE Field Office has denied them parole pursuant to its blanket no-parole policy. See Heredia Mons Decl. ¶ 20; Mena López Decl. ¶ 21; Y.A.L. Decl. ¶ 17; J.M.R. Decl. ¶¶ 21-24; P.S.P. Decl. ¶¶ 21-22; R.O.P. Decl. ¶ 21; Toledo Flores Decl. ¶¶ 15, 20; Puche Moreno Decl. ¶ 17, 21; M.R.M.H. Decl. ¶¶ 14, 15, 19, 23, 27, 31; F.J.B.H. Decl. ¶¶ 20, 23; Girón Martínez Decl. ¶¶ 17, 20. The manner in which ICE applied the no-parole policy to Plaintiffs is typical of the way ICE has done so to other putative class members: by failing to grant them parole interviews, imposing deadlines that were unreasonable if not impossible to meet, and issuing them rote denial forms with check boxes marked and no meaningful explanation of the reasons for the denial. See Heredia Mons Decl. ¶¶ 18-22; Mena López Decl. ¶¶ 16, 18-20; Y.A.L. Decl. ¶¶ 14, 1617; J.M.R. Decl. ¶¶ 19-23; P.S.P. Decl. ¶¶ 21-22; R.O.P. Decl. ¶¶ 18-23; Toledo Flores Decl. ¶¶
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15-19, 20-21; Puche Moreno Decl. ¶¶ 16-19, 21; M.R.M.H. Decl. ¶¶ 15-17, 19-20; F.J.B.H. Decl. ¶¶ 19-24; Girón Martínez Decl. ¶¶ 16-20.
Plaintiffs’ claims therefore “arise from the same course of conduct that gives rise to the other class members’ claims,” Bynum, 214 F.R.D. at 35, and are based on the same legal theory as all class members. Accordingly, the proposed class representatives’ claims are “typical” under Rule 23(a)(3).
D. The Proposed Class Satisfies the Adequacy Requirement. The proposed class also satisfies Rule 23(a)(4)’s requirement that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To satisfy this requirement, Plaintiffs must show (1) that there is no conflict of interest between the named members and the rest of the class, and (2) that counsel for the class is competent to represent the class. See Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575-76 (D.C. Cir. 1997); Johnson, 248 F.R.D. at 53-54. No conflict exists between the proposed class representatives and the other class members. The class representatives and the remaining class members have suffered the same injury: they have been denied individualized custody determinations due to the blanket no-parole policy. The class representatives and the remaining class members assert the same legal claims. And they all would benefit from the same declaratory and injunctive relief. Because their interests in this litigation are aligned, there is no conflict of interest between the named and unnamed class members. In addition, proposed class counsel are competent to represent the class. Plaintiffs’ counsel has devoted, and will continue to devote, substantial time and resources to the prosecution of this action. See Declaration of Mary Bauer (“Bauer Decl.”) ¶¶ 5, 6; Declaration of Katie Schwartzmann
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(“Schwartzmann Decl.”) ¶¶ 4-6. They have extensive experience with civil rights and class action litigation. See Bauer Decl. ¶ 5; Schwartzmann Decl. ¶¶ 3, 5. Plaintiffs’ counsel are therefore well qualified to prosecute this action. II. THE PROPOSED CLASS IS ADEQUATELY DEFINED FOR CERTIFICATION.
“It is axiomatic that for a class action to be certified a ‘class’ must exist.” Johnson, 248 F.R.D. at 52 (internal quotation marks and citations omitted). This “common-sense requirement” is not “a particularly stringent test, but plaintiffs must at least be able to establish that the general outlines of the membership of the class are determinable at the outset of the litigation.” Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998) (internal quotation marks and citation omitted). The requirement “is designed primarily to help the trial court manage the class” such that it is not “impossible to determine who is or is not a member of the class.” Id. at 346. But beyond the “general demarcations of the class of individuals who are being harmed,” Thorpe v. District of Columbia, 303 F.R.D. 120, 139 (D.D.C. 2014) (internal quotation marks and citations omitted), “precise ascertainability . . . is not required in cases such as this where only injunctive relief is sought.” DL, 302 F.R.D. at 17.
Here, four objective criteria easily define the outlines of class membership at the outset of the litigation. Class members (1) are arriving asylum seekers; (2) who receive a positive credible fear determination; and (3) are or will be detained by ICE; (4) after having been denied parole by the New Orleans ICE Field Office. These four criteria allow for objective identification of both current class members and future class members. See, e.g., DL, 302 F.R.D. at 10-11 (certifying class of present and “future class members” who will enter preschool with disabilities, but “whose identities are currently unknown”); Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007) (certifying class of current and future prisoners detained beyond their date of release). ICE’s
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monthly reports of its parole decisions regarding class members will further facilitate straightforward identification of all current and future class members and effective management of the class. Cf. Brewer v. Lynch, 2015 WL 13604257, at *7 (D.D.C. Sept. 30, 2015) (class adequately defined when “identifying the class members . . . would take little more than a perusal of the [government’s] records”). Accordingly, the proposed class is adequately defined. III. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE
23(b)(2). The proposed class also satisfies Rule 23(b)(2), which requires that “[t]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Courts in this District have interpreted Rule 23(b)(2) to impose two requirements: “(1) that defendant’s actions or refusal to act are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37; R.I.L-R., 80 F. Supp. 3d at 182. To satisfy Rule 23(b)(2), “it is enough to show that a defendant has acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity.” Bynum, 214 F.R.D. at 37 (internal quotation marks and citation omitted); see also R.I.LR., 80 F. Supp. 3d at 182 (requirements of Rule 23(b)(2) met where class “challenges a policy generally applicable to all class members”) (internal quotation marks omitted); Thorpe v. D.C., 303 F.R.D. 120, 151 (D.D.C. 2014) (proposed class alleging “systemic deficiencies in the District’s system of transition assistance and that those deficiencies appear to be affecting the class” satisfied Rule 23(b)(2)); Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. at 47 (proposed class alleging pattern or practice of discrimination satisfied Rule 23(b)(2)).
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Here, all class members are being detained without individualized parole determinations pursuant to the New Orleans ICE Field Office’s blanket no-parole policy. Class members have suffered a consistent harm, namely the application of this unlawful policy. All class members seek the same declaratory and injunctive relief requiring that parole determinations be made in compliance with the law. In other words, Plaintiffs and other putative class members challenge a Policy generally applicable to the class, and seek declaratory and injunctive relief that will benefit the class as a whole. This is just the sort of claim that satisfies Rule 23(b)(2). See, e.g., Damus v. Nielsen, 313 F. Supp. 3d 317, 335 (D.D.C. 2018) (granting provisional class certification in challenge to Parole Directive); R.I.L-R., 80 F. Supp. 3d at 182 (lawsuit “seek[ing] declaratory and injunctive relief invalidating consideration of [deterrence] factor and enjoining ICE from applying the policy to deny release” “challenges a policy ‘generally applicable’ to all class members” and thus satisfies Rule 23(b)(2)); Abdi, 2017 WL 6507248, at *10 (Rule 23(b)(2) satisfied because “injunctive relief requiring Respondents to conform to the strictures of the [Parole] Directive will be applicable to all proposed class members”). Section 23(b)(2) is likewise satisfied here. IV. THE COURT SHOULD DESIGNATE PLAINTIFFS’ COUNSEL AS CLASS
COUNSEL. Rule 23(g)(1) requires a court that certifies a class to appoint class counsel. Fed. R. Civ. P. 23(g)(1). In appointing class counsel, a court must consider “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Id. The court also may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B); Johnson, 248 F.R.D. at 58.
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For the same reasons that Plaintiffs’ counsel satisfies the adequacy requirement, this Court

should designate Plaintiffs’ counsel as class counsel. See Bauer Decl. ¶¶ 2-6; Schwartzmann Decl.

¶¶ 3-6. For all these reasons, the Court should designate Plaintiffs’ counsel as class counsel.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion should be granted. Plaintiffs respectfully

request that the Court certify the proposed class, consisting of (1) all arriving asylum seekers, (2)

who are found to have a credible fear of persecution or torture, and (3) who are or will be detained

by ICE, (4) after having been denied parole under the authority of the New Orleans ICE Field

Office; and appoint Plaintiffs’ counsel as class counsel.

Dated: June 28, 2019

Respectfully submitted,

Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

//s// Melissa Crow____________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org

Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org

Attorneys for Plaintiffs *Admitted pro hac vice
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ÁNGEL ALEJANDRO HEREDIAMONS, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 1:19-cv-01593(JEB) ) ) ) ) ) ) )

[PROPOSED] ORDER GRANTING CLASS CERTIFICATION Upon consideration of Plaintiffs’ Motion for Class Certification dated June 28, 2019, the memoranda of law and exhibits submitted in support and any in opposition thereto, and the entire record herein, it is hereby ORDERED that Plaintiffs’ Motion for Class Certification, dated June 28, 2019, is GRANTED; it is further ORDERED that Plaintiffs are certified as representatives of a class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The class is defined as: (1) all arriving asylum seekers (2) who are found to have a credible fear of persecution or torture and (3) who are or will be detained by U.S. Immigration and Customs Enforcement (“ICE”); (4) after having been denied parole under the authority of the New Orleans ICE Field Office.

Date: __________________

____________________________ The Honorable James E. Boasberg
United States District Court Judge

Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 1 of 9
EXHIBIT
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Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 2 of 9

Laura Rivera
From: Sent: To: Subject: Attachments:

Rose Murray <murray.rose@gmail.com> Thursday, November 29, 2018 3:22 PM SIFI Alexandria; Daniel Werner; Laura Rivera Fwd: [midsouth] *** IMPORTANT *** UPDATE FROM ICE ERO 2018 11 29 ICE-AILA Liaison Meeting agenda and questions kam.pdf; New Orleans AOR Docket_AILA_October 2018.pdf

‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: Ana Sardi <ana@mayeauxsardi.com> Date: Thu, 29 Nov 2018 at 13:18 Subject: [midsouth] *** IMPORTANT *** UPDATE FROM ICE ERO To: AILA Mid South Chapter Mailing List <midsouth@lists.aila.org> Cc: Ken Mayeaux <ken@mayeauxsardi.com>
Dear All: I just received this important update from ERO. Enclosed you will find a FULL DOCKET LIST and answers to the questions that were posed at the AILA Liaison meeting in New Orleans. PLEASE READ OF. ACUNAS EMAIL BELOW. Let me know if you have any additional questions.
Ana Maria Sardi, Esq.
Attorney at Law 321 St. Joseph Street Baton Rouge, LA 70802
Main: 225-754-4477 Cell: 225-270-0010 Fax: 225-341-8755

1

Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 3 of 9 CONFIDENTIALITY NOTICE: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
From: Acuna, Brian S <Brian.S.Acuna@ice.dhs.gov> Sent: Thursday, November 29, 2018 1:14 PM To: Ana Sardi <ana@mayeauxsardi.com> Cc: Bowman, Tyrone A <Tyrone.A.Bowman@ice.dhs.gov>; Warren, Scott W <Scott.W.Warren@ice.dhs.gov> Subject: RE: Trey Lund's role
Hello Ana, this is the update. The answers and docket list are attached. Please note on answer #3 we placed the websites for Bossier and Tallahatchie facility information at ICE.gov in highlighted text. Those links can be clicked or simply go to ICE.gov and search the facility.
George Lund is our Acting Field Office Director. Typically attorneys interact with the FOD or his representative if our groups have these meetings like on Nov. 2nd. Individual casework such as detention and removal inquiries are dealt with through the normal process of Deportation Officer, supervisor, and as needed Assistant Field Office Director or NewOrleans.Outreach@ice.dhs.gov.
Thanks and have a great day.
Brian S. Acuna
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations New Orleans Field Office
2

Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 4 of 9 (504) 599-7868 (504) 520-0396 [cell] (504) 589-2661 [fax] Brian.S.Acuna@ice.dhs.gov
--You are currently subscribed to midsouth as: [murray.rose@gmail.com] To change your email address go to https://www.aila.org/myaila/account/edit You can also unsubscribe or make changes at https://www.aila.org/MyAila/Account/Listservs If you are on a list you have an account with AILA. If you have never logged into aila.org the forgot password link is https://www.aila.org/MyAila/ForgotPassword Enter the email address that the list is using for you and it will send you a password link. Have problems? Email listservs@aila.org
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ICE ERO – AILA Liaison Meeting – November 2, 2018 AILA Midsouth Meeting – New Orleans
GENERAL QUESTIONS
1) Please give us an organizational update on the ICE staff (ERO) including the names, emails and phone numbers, in particular the deportation officers and supervisors for Memphis, Nashville, Gadsden, Birmingham, Montgomery, New Orleans, Jena and Oakdale and how the dockets are divided. George Lund is the Acting Field Office Director for Alabama, Arkansas, Louisiana, Mississippi and Tennessee. The docket lists are attached.
2) Please give us an organizational update on the ICE OCC attorneys including the names and contact information for New Orleans, Oakdale and Memphis. OCC will cover this.
DETENTION FACILITIES
3) Please identify the detention centers in the New Orleans district at which ICE/ERO is presently detaining noncitizens on a greater than 72-hour basis. For each facility please provide the names and contact information for the warden. Etowah County Detention Center (Gadsden, AL); LaSalle ICE Processing Center (Jena, LA); Pine Prairie ICE Processing Center (Pine Prairie, LA); Allen Parish Public Safety Correctional Complex (Oberlin, LA); Bossier Parish Medium Security Facility (Plain Dealing, LA) Bossier Facility Info; Tallahatchie County Correctional Facility - TASC (Tutwiler, MS) Tallahatchie Facility Info.
a) Please also identify the person at the facility to whom our members should direct inquiries regarding problems with access to counsel or other detention issues?
b) Please also identify the ICE/ERO deportation officer(s) assigned to each facility, and the ICE/ERO officer with supervisory authority over detention operations at each facility. Our ERO staffing assignments are listed on the AILA docket issued to your members
c) Please provide number of ICE beds at Bossier and Tutwiler and explain if ICE is con term facilities and with how many ICE detainees in each long term? Bossier Parish is a local facility. The Tallahatchie Asylum Screening Center is a national facility. ICE is exploring with the appropriate parties on setting up a Legal Orientation Program at the TASC.
d) If in these “secondary” detention locations once CFI is passed are they transferred elsewhere? Where? We advise AILA members to work on each case individually with the assigned ERO Officers, or new field offices in the event of a transfer.
4) How does an attorney schedule an attorney call at Alexandria Staging Facility? Attorneys should request and coordinate calls directly with the assigned Deportation Officer and/or the respective ERO office exercising docket control over those cases.

AILA-ICE New Orleans Liaison Meeting

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November 2, 2018

Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 6 of 9
DETENTION FACILITIES – CONT’D
5) Please tell us about any new detention facilities being developed or contemplated within the NOLA field office. Is Pine Prairie expanding or Basile reopening? No
6) Can attorneys now schedule attorney calls and in person visits with the facility staff at La Salle? The facility follows the PBNDS 2011 standard for legal visits.
ICE DETAINERS AND HOLDS
7) Please inform members of ICE’s policies and a list of contacts regarding the best practices for gathering information about detained criminal respondents with “Immigration Holds/Detainers.” When the Defendant/Respondent is detained/arrested by local authorities and an Immigration HOLD is placed (sometimes immediately), is there an immigration/deportation officer in charge of that Respondent at that initial moment that will take a G-28, and what is the preferred procedure for accomplishing this? Can contact be made while the State or Federal criminal proceeding is still ongoing? We are experiencing police and Sheriff’s departments that refuse to release or bond out inmates because of an ICE detainer – who do we talk to? Yes. Please contact the local office supervisor to discuss the case.
8) Please inform members of ICE’s policies regarding ICE’s timetable for acquiring jurisdiction over criminal defendants/respondents subject to an Immigration Hold/Detainer once the respondent has been sentenced for a deportable crime that has NO BOND relief. What is ICE’s policy regarding how much time would be allowed for the Defendant/Respondent to serve their sentence before ICE takes jurisdiction over the Defendant/Respondent? What is ICE’s policy regarding criminal defendants/respondents subject to an Immigration Hold/Detainer that have pleaded guilty to a deportable crime with no Bond relief, and who do not wish to fight the case in Immigration court and instead would prefer to just be “Deported”? There is no timing policy for local or state jurisdictions when ICE screens individuals under CAP. ICE staff monitoring federal and Louisiana Department of Corrections under CAP may also process individuals through the Institutional Removal Program.

AILA-ICE New Orleans Liaison Meeting

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November 2, 2018

Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 7 of 9
PROSECUTORIAL DISCRETION AND JOINT TERMINATION
OCC spoke on Saturday, November 3, 2018, and answered these 9) Overall, what is the preferred procedure to request that OCC agree to re-calendar and/or
jointly terminate where the respondent has relief (i.e. AOS and/or I-601A/CP, etc.)?
10) More specifically, when will ICE exercise PD to jointly terminate proceedings to allow individuals to apply for a 601A waiver? Can they implement guidelines to assist us?
11) For respondents seeking PD, where an NTA has not been filed with the Immigration Court, will ICE/OCC what is the procedure to request that the NTA be cancelled?
12) What is the preferred procedure for escalating PD denials? Can you please provide a chart or list of people with whom to follow-up with in such circumstances?
ISAP AND SUPERVISION POLICIES AND ISSUES
13) What criteria are used to determine whether to arrest someone at a check-in? We have been told by Deportation Officers one factor in an arrest was that the field office now had detention space for our client – is this appropriate? ICE Officers have the discretion to arrest an individual on recognizance or supervision.
14) What are ICE's responsibilities to the children whose parents they arrest if the children are present at a check-in? If an AILA member has a specific problem with a case, they should speak to the local office supervisor.
15) Who makes the decision to arrest? ICE Officers have the discretion to arrest an individual on recognizance or supervision.
16) What criteria are used to determine who goes to ISAP? ICE Officers use the Alternatives to Detention program based on national policy.
17) What is the policy on release of pregnant women? The December 2017 ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees does not mention any provisions for release. ICE Officers have the discretion to release an individual on recognizance or supervision when medically necessary. The ICE policy on care of pregnant detainees is located here: https://www.ice.gov/directive-identification-andmonitoring-pregnant-detainees

AILA-ICE New Orleans Liaison Meeting

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STAYS OF REMOVAL AND ENFORCEMENT OF FINAL ORDERS
18) How do pending applications for benefits factor into decisions whether or not to approve a stay? I'm confident that it's "case-by-case", but I imagine that there are also specific guidelines. There is no set policy for adjudicating stays.
19) More generally, what factors go into deciding whether to deny or approve a stay? ICE does take all equities into account.
20) If someone receives an order of removal from immigration court, at what point will ICE begin enforcement? Will they wait until the 90-day deadline to file a motion to reopen the case? Or is it when the removal order becomes final? ICE works on the arrangements when the order of removal is administratively final.
21) What is the procedure for requesting a GPS bracelet be removed? The Deportation Officer or the local office supervisor can review on a case-by-case basis, if requested.
22) What factors are used in determining whether to place someone on an ankle bracelet as well as when to remove the ankle bracelet? We would refer AILA members to November 2017’s response on this topic.
23) What is the procedure for changing reporting locations for persons on OSUP? Please advise clients to review instructions on Form I-220B.
24) What is the procedure for requesting a credible or reasonable fear interview? Speak to the Deportation Officer.
25) Why isn't ICE issuing bonds and all cases are being sent to the Immigration Judges? ICE Officers have the discretion to set a bond or release an individual on recognizance or supervision after processing, in appropriate cases.
26) Is the 2009 Parole Memo still in effect? If so, what percentages of parole requests are granted by the NOLA Field Office? We have problems contacting the Deportation Officer for these – what can we do? Technically no, by Executive Order. However, there is an injunction in certain field offices outside the New Orleans AOR. We do not have statistics to give out. If you cannot contact the Deportation Officer, please speak with the supervisor or NewOrleans.Outreach@ice.dhs.gov to pass on your parole request.
27) Is the 2011 Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs memo still in effect? No, by Executive Order.
28) Could you please provide us a list of intransigent countries that are not issuing your Field Office travel documents? We do not have information to give out because the field does not work on that aspect of ICE operations.

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Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 9 of 9
*****Other questions from the audience or matters ICE officials wish to bring
to AILA members’ attention*****
29) If an attorney is planning on filing a stay of removal is it enough to call, fax or email a copy of the stay that will be filed to stop a pending removal? If this references a stay of removal at the EOIR or the BIA, no. Only a properly filed motion to reopen with an automatic stay under the law, or a stay motion granted by the court or BIA would be appropriate to halt a removal.
30) On behalf of Catholic Charities would ICE consider reinstating the pilot program for Cuban Nationals in the Baton Rouge area? Can you please clarify ICE’s removal policies on Cuban Nationals? We understand that the Referrals for Community Supported Release Program was a one (1) year pilot program. This was a national program, we would encourage your main Catholic Charities headquarters to speak to ICE headquarters. We would advise AILA members to research current federal regulations and international agreements with respect to the reestablishment of diplomatic relations with Cuba.
31) We are experiencing problems with clients who are reporting to ICE for a number of years and despite that receive an in-absentia removal order – what can we do about that? We request address change information from individuals who report to our offices at each appointment. When a Notice to Appear is filed with the court, and when ICE becomes aware of a change, ICE serves Form I-830 on the court. Respondents who are already in proceedings are responsible for likewise filing Form EOIR-33 with the court. If AILA members begin representation of a client and they are not sure where the court would address the hearing notices, we encourage contact with the Deportation Officer and if needed the Office of the Chief Counsel.

AILA-ICE New Orleans Liaison Meeting

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November 2, 2018

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 1 of 5
EXHIBIT
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Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 2 of 5
DECLARATION OF ALLYSON PAGE, ESQ.
l, Allyson Page, Esq., declare as follows:
I make this declaration based on my own personal knowledge and if called to testify l could and would do so competently as follows:
1. I am a staff attorney within the non-profit Immigration Services and Legal Advocacy (ISLA). I provide direct representation to detained immigrants at Pine Prairie ICE Processing Center.
2. In the Spring of 2018, I co-founded ISLA and took a position there as a staff attorney. In that role 1 divided my time between providing representation to detained immigrants in deportation proceedings and working to establish the non-profit and seek private and public funding for a program providing counsel to detained immigrants in the gulf south area.
3. I graduated from Tulane Law School in May 2014. Ln 2015 I began service as an AmeriCorps Equal Justice Works Justice Corps Fellow at Catholic Charities Archdiocese of New
Orleans (CCANO), working in the Immigration Program. At the end of my term, I was hired and
continued to work at CCANO for three years. 1 was admitted to the Louisiana State Bar on December 18, 2014. I am a 2007 graduate of McGill University, where I studied Political Philosophy, History, and Italian.
4. ISLA provides direct representation to detained immigrants at a detention center run by Department of Homeland Security (OHS) Immigration and Customs Enforcement (ICE) at Pine Prairie ICE Processing Center in Pine Prairie, Louisiana.

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 3 of 5
5. ISLA attorneys, including myself, regularly provide prose detainees with legal infonnation and assistance on their cases, including requests for release from detention on parole for "arriving" asylum seekers.
6. Due to my work in immigration detention, l am familiar with ICE policies, including the ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ("Parole Directive").
7. ISLA attorneys, including myself, have provided dozens of arriving asylum seekers with legal assistance on their requests for release from detention under the Parole Directive.
8. In the majority of cases in which I provided guidance to detainees, I would explain to them what types of documents they need to submit in support of their parole request and would help facilitate communication and access between the detainee and their sponsor. In several cases, prepared and submitted the parole request on behalf of the detainee to their ICE Deportation Officer at the ICE New Orleans Field Office.
9. Based on my experience and observations, until early 2017, if an arriving asylum seeker had generally met the requirements outlined for release by the 2009 Parole Memorandum, they would be granted parole by the New Orleans ICE ERO Field Office.
l0. In early 2017, shortly after the beginning of the Trump Administration, we noticed that ICE was no longer granting detainees parole, despite the vast majority of them appearing to meet the 2009 Parole Memorandum criteria.
11. In my experience, ICE provides a Parole Advisal and Scheduling Notification in

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 4 of 5
advance of speaking to the detainee about their request for parole. However, my experience is that this document is generally provided only in English. l have only seen this document written in Spanish one time, despite detainees requesting it be provided in their own language when they do not understand English.
12. In my experience throughout my time working in immigration detention, ICE routinely interviews all arriving asylum seekers after they have received a positive credible fear determination. However, it has been my experience that ICE does not routinely conduct this interview within 7 days of their positive credible fear detennination.
13. It has also been my experience that ICE does not routinely provide detainees with a decision on their parole request within 7 days of this interview.
14. In my experience, parole denial notices are written in English even when the recipients do not speak or read English. As a result, when arriving asylum seekers have notified me and my colleagues that their parole request was denied, we often have to explain the denial notice to them and that they have a right to request a redetermination of that decision.
15. I do not think that prose detainees are equipped to file their own individual lawsuits
or habeas actions to challenge their prolonged detention. I tried to explain this process to many
prose detainees who wanted to challenge their prolonged detention and it proved very difficult. Most arriving asylum seekers do not write or speak English as their first language, so they are not able to make the high-level technical arguments required in such legal contexts. l have never seen someone succeed in pro se habeas action.

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 5 of 5
16. I reserve the right to amend or supplement this report as appropriate upon receipt of additional infonnation or documents.
Jdeclare under penalty of perjury under the laws of the United States and the District of Columbia that the foregoing is true and correct.
Executed this if.2_ day of l/uM~ ,2019 at /tf-t/A) Ot/'/t1Uf5t /..../1-
Allyson Page, Esq.

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EXHIBIT
14

Case 1:19-cv-01593-JEB Document 15-5 Filed 06/28/19 Page 2 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons, et al., on behalf of themselves and others similarly situated,
Plaintiffs,
v.
KEVIN McALEENAN, Acting Secretary of the Dep't of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No . 1: 19-cv-01593 ) ) ) ) ) ) )

DECLARATION OF JOSEPH GIARDINA, ESQ.

I, Joseph Giardina, Esq., declare as follows:

I make this declaration based on my own personal knowledge and if called to testify I could and would do so competently as follows:

1. I am an associate with the Rozas & Rozas Law Firm based out of Baton Rouge, Louisiana.

I provide direct representation to detained immigrants in the State of Louisiana.

2. I have worked at this firm since September 2018 until the present. In this role I mainly focused

my time on detained litigation for Immigration clients

3. I graduated from LSU Law School in May 2017. I was admitted to the Louisiana State Bar in

July 2018. I am a 2012 graduate of LSU College, where I studied History.

4. Our Firm provides direct representation to immigrants detained in the various detention

facilities throughout the State of Louisiana.

5. During the course of my employment at the Firm, I have handled dozens of parole requests to

ICE on behalf of Arriving Aliens.

1

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6. Due to my work in immigration detention, I am familiar with ICE policies, including the ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ( "Parole Directive"). 7. I, have provided dozens of arriving asylum seekers with legal assistance on their requests for release from detention under the Parole Directive. 8. In the majority of cases in which I provided guidance to detainees, I would explain to them what types of documents they need to submit in support of their parole request and would help facilitate communication and access between the detainee and their sponsor. In my cases, I would prepare and submit the parole request on behalf of the detainee to their ICE Deportation Officer usually at the ICE Oakdale (LA) Field Office. 9. Based on my experience and observations, ICE has not granted a parole request, in the entire State of Louisiana, to any of my clients, despite the vast majority of them appearing to meet the 2009 Parole Memorandum criteria. 10. In my experience, ICE provides a Parole Advisal and Scheduling Notification in advance of speaking to the detainee about their request for parole. However, my experience is that this document is generally provided only in English. I have never seen this document in Spanish, despite detainees requesting it be provided in their own language, when they do not understand English.
11. In my experience throughout my time working in immigration detention, ICE routinely interviews all arriving asylum seekers after they have received a positive credible fear determination. However, it has been my experience that ICE does not routinely conduct this interview within 7 days of their positive credible fear determination.
12. It has also been my experience that ICE does not routinely provide detainees with a
2

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decision on their parole request within 7 days of this interview. 13. In my experience, parole denial notices are written in English even when the recipients
do not speak or read English. As a result, when arriving asylum seekers have notified me and my colleagues that their parole request was denied, we often have to explain the denial notice to them and that they have a right to request a redetermination of that decision. 14. There have been a number of my clients who clearly meet the ICE protocols, and ICE clearly states in their denials that their policy is usually to release a detainee as long as they show they are not a significant flight risk or danger to the community. 15. While there have been dozens of my clients who warranted a grant of parole, The most jarring example oflCE's blatant disregard of their own policies, occurred with Cuban client of mine. This individual had a grandfather that was granted Asylum in the United States, because he had been a political prisoner. The client's mother had also been granted Asylum along with his younger sister, My client was present for all the interviews and was approved as well, but since the process took 7 years he had turned 21 prior to the approval and had to be left behind. It came as no surprise that the persecution he and his family faced at the hands of the Cuban government only intensified once the rest of his family left for the United States, so even though the client had a pending I-130, he could not wait any longer and asked for Asylum at the border. The client then filed a parole request on his own, it was denied for lack of information provided. Then he hired my Firm, we filed numerous documentation showing his LPR mother, sisters, and U.S. citizen grandfather he would be staying with. ICE took multiple weeks to respond, and when they finally gave a response the box checked was the same answer as the first time. 16. When I tried to contact the officer to inquire as to how this could possibly be the determination seeing as we had provided voluminous documentation, and none of my emails or
3

Case 1:19-cv-01593-JEB Document 15-5 Filed 06/28/19 Page 5 of 5

phone calls were returned. I was finally able to go to his field office and pull him out of his office, where he proceeded to tell me that the denial shouldn't have said that it should have been denied for another reason instead, he wouldn't say which one. I discussed with him the evidence we had provided, and asked further what else could ICE possibly want to show someone isn't not a flight risk or danger, if the policy is usually to release people than surely this client fits the criteria? He responded that it was not his call that it was a directive to blanket deny paroles in Louisiana from the New Orleans Field Office Director Trey Lund. When I asked how can I contact him, he responded that it would be impossible, he could not give an email address and there was no line to call. 17. Another instance that should be mentioned, was when I was speaking with an ICE officer I am friendly with about what potentially would he need to grant parole in one of his cases? He said that it would be 99% impossible to demonstrate to him that a detainee was not a flight risk or a danger in order for him to grant parole. Additionally, some officers I have spoken with did not even realize that a judge could not also grant a bond on Arriving Alien cases, and were surprised to learn they had the only say as to if they were granted a parole or not. 18. I will be happy to testify to my experiences if called upon.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

M f : Executed this

day of June, 2019, at (}df!wi

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EXHIBIT
15

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DECLARATION OF OLGA C. BADILLA
I, Olga C. Badilla, Esq. declare as follows:
I make this declaration based on my own personal knowledge and if called to testify I could and would do so competently as follows:
1. I am an immigration attorney in good standing with the State Bar of California since November 2004. I have been practicing immigration law exclusively for fourteen years. I am a named partner of a private practice and also work on behalf of the Los Angeles LGBT Center. I provide direct representation for immigrants in the Los Angeles area before the Los Angeles Immigration Court.
2. From December 2018 until the present, I assisted 17 LGBTQ immigrants on a pro bono basis with their credible fear interviews and parole requests on behalf of the Los Angeles LGBT Center, along with attorney Cristian Sanchez from RAICES.
3. The 17 immigrants were initially detained at the Tallahatchie County Correctional Facility in Tutwiler, Mississippi. While at the Tallahatchie County Correctional Facility they all received credible fear interviews. All of them were found credible and issued Notices to Appear. After they were found credible, all were given one day to provide documents for parole and then automatically denied one day after they were supposed to provide documents. In one case, the immigrant was able to notify me of his favorable credible fear finding the same day he received the decision, we then emailed the parole documents that night to ICE. The next morning the immigrant informed me he received a letter from the officer stating his parole had been denied.

Case 1:19-cv-01593-JEB Document 15-6 Filed 06/28/19 Page 3 of 5
4. Initially I believed this was a mistake. In my experience, it is customary for ICE to provide the immigrant with more than one day to submit the parole documents. Neither Cristian nor I were provided a copy of the Notice to Appear, Credible Fear Decision or Parole Advisal and Scheduling Notification, even though we had submitted a G-28 to the corresponding ICE office for the Credible Fear Interview. As a result, many were denied parole in Tallahatchie without us having a chance to submit the required documents. It was also difficult for us to confirm whether the immigrants' parole requests had in fact been denied because none of the immigrants in the group of 17 we were assisting could read or write English; therefore, we had to rely on other immigrants in the facility who could read English to read the document to the immigrants to then in turn communicate the decision to us.
5. The denial of parole was also hard to understand, since in my experience if an immigrant had a favorable credible fear determination and they complied with the requirements as set forth in the Parole Advisal and Scheduling Notification, they would be granted parole, but I soon discovered this was not the case in Louisiana.
6. Prior to this incident, I had called the ICE office under the jurisdiction of the New Orleans Field Office to ask where I would file my clients parole requests. I asked if I could email it to the email at TASC@ice.dhs.gov and the officer stated, sure you can send whatever you want there. Given the tone, I understood this to mean it didn't matter.
7. Also at this time, I was advised by a reporter that the New Orleans ICE Field Office had stated that because the Tallahatchie County Correctional Facility was a transitional place, they could not grant parole.
8. When members of our group were transferred from Tallahatchie County Correctional Facility to other facilities in Louisiana, I submitted a Request for Redetermination of Parole for the 9 immigrants who had sponsors. Two of the initial 17 were sent to a different state, one of which was granted parole, soon after the request was filed.

Case 1:19-cv-01593-JEB Document 15-6 Filed 06/28/19 Page 4 of 5
9. For all of the parole requests I provided the following: the immigrant's identity documents, with translations, letters from their sponsors, an ID for their sponsors, evidence of either residency or citizenship for their sponsors, a utility bill and financial records. I also provided a letter of support from the Los Angeles LGBT Center and RAICES. We also explained the vulnerability to harm for these LGBTQ immigrants, due to prolonged detention, especially for one of our clients who is a transgender woman. The sponsors for our group included family members as well as friends, including members of the LGBTQ community. I also noted that none of the members of our group had any criminal history and in fact all of them had presented themselves at a U.S. Port of Entry and requested asylum, therefore showing that they intended to comply with the rules as set forth by CBP and ICE.
10. In spite of the New Orleans ICE Field Office acknowledging that these LGBTQ individuals were part of a vulnerable group, all 9 Requests for Redetermination of Parole I submitted were denied. Of the 9, 8 were denied based on the following reason: "You have not established to ICE's satisfaction that you are not a flight risk". Underneath this category, the box was marked for "Imposition of a bond or other conditions of parole would not ensure, to ICE's satisfaction, your appearance at required immigration hearings pending the outcome of your case." No other box was checked. For one individual, the same boxes were checked plus the one for "You did not establish to ICE's satisfaction, substantial ties to the community." This individual's sponsor was his cousin.
11. In one case I sent in my request for Redetermination for Parole, and one month later I had not received a decision. When I made an inquiry, I was asked to resubmit my request and the next day I received the decision denying my request.
12. Throughout their detention the group has suffered from daily verbal abuse, being called faggots and being treated differently. After my clients began informing me of incidents of harassment, assaults and threats, I again asked that my requests for parole for the group be reconsidered, and I was told within a day that my request had been reviewed and denied. Some members of the group have opted to be in segregation for safety reasons,

Case 1:19-cv-01593-JEB Document 15-6 Filed 06/28/19 Page 5 of 5
while others have chosen to endure the abuse knowing that parole is not an option. This has taken a toll on all of them, they feel helpless and are constantly in fear of being harmed or ridiculed it has also made finding pro bono representation for their asylum cases virtually impossible.
13. I reserve the right to amend or supplement this report as appropriate upon receipt of additional information or documents.
I declare under penalty of perjury under the laws of the United States and the District of Colombia that the foregoing is true and con-ect. Executed this 29th day of May, 2019 in Burbank, CA.
Olga~A:dilla, Esq.

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 1 of 6
DECLARATION OF HELEN H. BOYER, ESQ. I, Helen H. Boyer, Esq., make this declaration based on my own personal knowledge and if called to testify I could and would do so competently as follows:
1. I am a staff attorney with Al Otro Lado, Inc. in Los Angeles, California. I provide direct representation to detained and non-detained immigrants in the southern California area. Additionally, I currently have two clients who are detained in Louisiana. I have served in this role since November of2018.
2. I graduated from University of California, Irvine School of Law in May 2018. I was admitted to t?e Pennsylvania State Bar on October 16, 2018. I am a 2012 graduate of American University, where I studied political science and gender studies.
3. Al Otro Lado is a bi-national, direct legal services non-profit organization serving indigent deportees, migrants, and refugees in Mexico and the United States. Al Otro Lado attorneys, including myself, provide representation to detained immigrants at several detention centers run by the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE), primarily in California. However, due to the increase in ICE detention centers in Louisiana, Al Otro Lado has begun representing a limited number of immigrants in their parole applications with the New Orleans ICE Field Office.
4. Due to my work in immigration detention, I am familiar with ICE policies, including ICE Policy Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ("Parole Directive"). For example, I am aware that the Parole Directive states that ICE "shcruld, absent additional factors[] , parole the alien on the basis that his or her continued detention is not in the public interest."

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5. I have represented two arriving asylum seekers in their requests for release from detention in Louisiana under the Parole Directive. Additionally, I have provided legal assistance to several arriving asylum seekers seeking release from detention under the Parole Directive in detention centers under the jurisdictions of the San Diego and San Antonio ICE Field Offices.
6. I currently represent M.R.M.H., an arriving asylum seeker who has been detained at LaSalle ICE Processing Center in Jena, Louisiana since May 6, 2019. He Vfas previously detained at River Correctional Center in Ferriday, Louisiana (February 20, 2019 to May 6, 2019) and Tallahatchie County Correctional Facility in Tutwiler, Mississippi (early January 2019 to February 20, 2019). I began representing M.R.M.H. in early March 2019 for the limited purpose of his parole requests.
7. M.R.M.H. is an arriving asylum seeker with no criminal history in the U.S. or in any country in the world. He presented himself at the San Ysidro Port of Entry to seek asylum because he suffered persecution in his home country. He testified to this persecution in his Credible Fear Interview and was found by USCIS to have a credible fear of persecution and torture in his country of origin.
8. Since March 4, 2019, I have submitted three parole requests to the New Orleans ICE Field Office on M.R.M.H.'s behalf.
9. On March 4, 2019, I submitted a parole request on M.R.M.H. 's behalf, which included M.R.M.H.'s birth certificate, a letter from his Milwaukee-based sponsor, a copy of his sponsor's U.S. passport and financial documents, and a letter of support from M.R.M.H.'s U.S. Citizen friend. On March 20, 2019, I received a "Notification Declining to Grant Parole" from Acting Field Office Director George H. Lund, III, denying M.R.M.H. 's parole because "[i]mposition of a bond or other conditions of parole would

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 3 of 6
not ensure, to ICE's satisfaction, [M.R.M.H.'s] appearance at required immigration hearings pending the outcome of [his] case." 10. On or around April 7, 2019, M.R.M.H. began experiencing life-threatening health problems, including anaphylaxis. Due to the severe and delicate nature ofM.R.M.H.'s health, on April 8, 2019 I submitted a request for reconsideration of parole on M.R.M.H.'s behalf, which included the original supporting documents as well as additional information about his medical situation, a copy of the asylum officer's determination of M.R.M.H.'s credible fear of persecution and credibility of identity a letter from M.R.M.H.'s attorney for Immigration Court, and letters of support from a Catholic priest in his sponsor's community, a Milwaukee-based immigrant rights organization, his sponsor's two U.S.-citizen step-daughters, and M.R.M.H.'s Nevadabased family member. Despite this additional evidence and M.R.M.H.' s troubling health situation, ICE denied M.R.M.H.'s request for reconsideration on April12, 2019. Its response was in the form ofa brief email, which lacked any reasoning in line with the Parole Directive. The email denial simply stated, "Your previous parole request was denied. You have spoken to the case officer. ERO New Orleans sees you are trying to request a 2nd time. Your clients next hearing with DOJ EOIR will be on May 28, 2019. At this point, ERO will not consider release on parole. Your client will remain in custody pending the determination from the IJ." 11. On April 17, 2019, I submitted a Request for Release Under Order of Supervision Due to Urgent Humanitarian Concerns to the New Orleans ICE Field Office. In this Request, I included additional information about M.R.M.H. 's medical situation, and again reiterated the urgent nature of M.R.M.H. 's situation and his lack of flight risk and criminal history. On May 1, 2019, I filed additional documentation in support of my April 17th request,

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 4 of 6
including a medical report from a doctor who conducted an evaluation ofM.R.M.H. on April 30th, and a letter from another doctor who had reviewed M.R.M.H.'s medical records. Both letters urged that M.R.M.H. be released from detention due to his medical needs. On May 2, 2019, I received an email from a Supervisory Detention and Deportation Officer denying M.R.M.H.'s release, stating, "[a]t this point however, I must point out that M.R.M.H. is not eligible for release on an Order of Supervision as he is not a final order of removal." 12. In addition to the multiple denials ofM.R.M.H.'s parole requests, ICE has failed to provide M.R.M.H. with adequate medical care, despite two independent doctors expressing concern about his wellbeing. M.R.M.H. has been hospitalized on multiple occasions after experiencing anaphylaxis due to food allergies. Despite his allergies M.R.M.H. reports that detention officials continue to serve him plates of food containing his allergens. As a result, M.R.M.H. often skips meals to avoid potential medical emergencies. 13. Furthermore, M.R.M.H. is being kept in solitary confinement under "medical observation," which concerns me due to his experiences with trauma. He has told me that he is suffering from anxiety, depression, nightmares, and flashbacks. This is exacerbated by his isolation in solitary confinement, where he has been held since he was transferred to LaSalle ICE Processing Center on May 6, 2019. It is my understanding that he remains in solitary as of the present date. 14. I also currently represent an arriving asylum seeker who has been detained in DHS custody since early March 2019. He was previously detained under the jurisdiction ofthe San Antonio ICE Field Office, along with three of his family members. While his three family members were quickly paroled out of custody, my client was transferred to

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 5 of 6
Tallahatchie County Correctional Facility before he was able to apply for parole. He was
later transferred to Richwood. 15. Like M.R.M.H., this client is an arriving asylum seeker with no criminal history in the
U.S. or in any country in the world. He presented himself at the San Ysidro Port of Entry to seek asylum because he suffered persecution in his home country. He testified to this persecution in his Credible Fear Interview and was found by USCIS to have a credible fear of persecution and torture in his country of origin. 16. I submitted a parole request for this client on May 8, 2019, and included a copy ofthe client's birth certificate, a letter from his U.S. Citizen sponsor and his sponsor's U.S. Citizen roommate, and a copy of his sponsor's proof of income, proof of residence, and proof of U.S. citizenship. On May 28, 2019, I followed up on the request because I had not heard the results of the request. It is my understanding that this request remains pending as of the present date. 17. In my experience with this case, the New Orleans ICE Field Office has created insurmountable barriers for arriving asylum seekers to gain release from detention under the Parole Directive. It is unclear to me how any arriving asylum seeker without a criminal record would be able to prove, to New Orleans ICE officials' satisfaction, that they are not a flight risk and thereby should be released under the Parole Directive. In fact, based on my observations, it appears that the New Orleans ICE officials are not giving due consideration to parole applications. 18. I reserve the right to amend or supplement this report as appropriate upon receipt of additional information or documents. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge.

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 6 of 6

ecuted this Ja day of JlAM -!1 _

' 2019 in ~ B«rM, Cit .
~l(fLer,Esq.

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EXHIBIT
17

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Case 1:19-cv-01593-JEB Document 15-9 Filed 06/28/19 Page 1 of 3
EXHIBIT
18

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons, et al., on behalf of themselves and others similarly situated,
Plaintiffe,
v. KEVIN McALEENAN, Acting Secretary of the Dep't of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593 ) ) ) ) ) ) )

DECLARATION OF KATIE SCHWARTZMANN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I, Katie Schwartzmann, declare:

1. I am an attorney and Legal Director for the American Civil Liberties Union of Louisiana ("ACLU of LA") in New Orleans, Louisiana. I submit this declaration in support of Plaintiffs' Motion for Class Certification.

2. I graduated from Tulane University School of Law in May 2003 and have been a practicing attorney for over 15 years. I am admitted to practice in the state of Louisiana, including the United States District Courts for the Eastern, Western and Middle Districts of Louisiana. I am also admitted to practice in the U.S. Court of Appeals for the Fifth Circuit.

3. During the past decade, I have practiced solely in the area of civil rights and civil liberties, almost exclusively in Louisiana federal courts. For six years I served as the Legal Director for the ACLU of LA. In that capacity, I served as lead counsel in numerous federal cases, including briefing and argument before the Fifth Circuit Court of Appeals. Subsequent to my work at the American Civil Liberties Union I was the Director of the Southern Poverty Law Center's Louisiana office, and I also served as founding co-director of the Roderick and Solange MacArthur Justice Center in New Orleans before assuming my role as ACLU of LA Legal Director in December 2018.

4. I am experienced in handling complex prisoners' rights matters. I served as counsel in many prison-related lawsuits, including Morgan v. Gusman, No. 2:06-cv-05700 (E.D.

1

Case 1:19-cv-01593-JEB Document 15-9 Filed 06/28/19 Page 3 of 3
La. 2006); Terry v. City of New Orleans, 2:07-cv-00469 (E.D. La. 2007); Brown v. Normand, 2:09-cv-03805 (E.D. La. 2009); Advocacy Center v. Louisiana DHH, 2:10cv-01088 (E.D. La. 201 O); Mason v. Tangipahoa Parish Council, 2: 11-cv-00157 (E.D. La. 2011); Leonard v. Louisiana, 5:07-cv-00813 (W.D. La. 2007); Leger v. State of Louisiana DOC, 3:08-cv-00820 (M.D. La. 2008); Anderson v. State ofLouisiana, 3:09cv-00075 (M.D. La. 2009); and Billizone v. LeBlanc, 3:09-cv-00794 (M.D. La. 2009).
5. In addition to prison-related litigation, I have been lead counsel in many other civil rights cases in federal courts, on matters involving freedom of speech, freedom of religion, due process oflaw, and police misconduct, including Social Aid and Pleasure Club Task Force v. City ofNew Orleans, 2:06-cv-10057 (E.D. La. 2006); Henry v. City ofNew Orleans, 2:07-cv-01425 (E.D. La. 2007); Social Aid and Pleasure Club Task Force v. City ofNew Orleans, 2:08-cv-09738 (E.D. La. 2008); Elloie v. City ofNew Orleans, 2:07-cv-03231 (E.D. La. 2007); Houston v. City of New Orleans, 2:09-cv4245 (E.D. La. 2009); Griffith et al. v. Hughes et al. , 2:07-cv-09738 (E.D. La. 2007); Cooper v. Gee, 14-cv-507 (M.D. La. 2014); and Fontana v. New Orleans et al., 2:19cv-09120 (E.D. La. 2019).
6. I served as class counsel in a challenge to the conditions of confinement in Orleans Parish Prison, Jones v. Gusman, 12-cv-0859 (E.D. La. 2012), securing a consent judgment for 2,000 class members. Other class-action experience includes Berry v. Pastorek, 2: 10-cv-04049 (E.D. La. 2010) (suit on behalf of New Orleans public school students with disabilities, consent judgment reached); Dear v. Shea, 2:07-cv-01186 (E.D. La. 2007) (suit on behalf of indigent defendants ordered to pay fines or face jail time, settled prior to class briefing); Snow v. Lambert, No. 3: l 5-cv-00567 (M.D. La. 2015) (challenging pretrial detention practices in Ascension Parish). I am presently counsel in a putative class-action challenging prisoners' access to mental-health services and treatment at David Wade Correctional Center, Tellis v. LeBlanc et al., No. 5:18-cv-00541 (W.D. La. filed Feb. 20, 2018), and I am currently counsel in a class action challenging bail practices in Orleans Parish criminal courts. Caliste et al. v. Cantrell, 2:17-cv-06197 (E.D. La. 2018).
7. In this litigation, I am supervising ACLU of LA Staff Attorney Bruce Hamilton, who is highly qualified and has substantial litigation experience.
8. The ACLU of LA does not charge its clients for its services, including the clients in this case who are being represented on a pro bono basis.
I swear under penalty of perjury that the information in this affidavit is true to the best of my memory, knowledge and belief.
Date: June 11 , 2019
2

 Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) Ángel Alejandro HEREDIA MONS, et al., on behalf of )

themselves and others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

CHAD WOLF, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,

) Civil Action No ) 19-cv-1593 (JEB) ) )

Defendants.

) )

)

PLAINTIFFS EMERGENCY MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs, members of the class that this Court certified in Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, (D.D.C. Sept. 5, 2019) (hereinafter “Plaintiffs” or “class members”), move for a second preliminary injunction, as set out in the accompanying Memorandum In Support. In their first motion for declaratory and injunctive relief, Plaintiffs’ counsel asserted a claim based on the Administrative Procedures Act (hereinafter “APA”). Plaintiffs asserted that Defendants’, including the New Orleans Field Office of Immigration and Customs Enforcement (hereinafter “NOLA ICE”), unlawful failure to follow the Parole Directive of 2009, as well as their unlawful failure to provide individualized determinations of flight risk and danger, violate the APA.

New facts have arisen that coupled with the Defendants’ continued non-compliance with the September 5, 2019 injunction, are likely to expose Plaintiffs to even more irreparable harm. The rapid spread of the deadly pandemic COVID-19 virus poses a severe threat to Plaintiffs-class members’ physical well-being, leaving Plaintiffs with no other choice than to move for a preliminary injunction, requiring NOLA ICE to immediately conduct individualized (case-by-case) parole assessments for all present and future class members

Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 2 of 4
detained in the NOLA ICE region,1 pursuant to ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009)2, otherwise known as the “Parole Directive.”
Plaintiffs further request that, should this Court order Defendants to conduct immediate, individualized assessments of Plaintiffs-class members’ parole eligibility due to the threat presented by the COVID-19 pandemic, Defendants should also be required to fully comply with all applicable regulations delineated in the Parole Directive, including those that favor the granting of parole to class members who “have serious medical conditions, where continued detention would not be appropriate,” and class members “whose continued detention is not in the public interest.” Parole Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b). As required by the Parole Directive, Defendants should incorporate into their individualized assessment of class members’ parole eligibility, the danger that COVID-19 poses to those in detention, especially those with serious medical conditions; and should weigh whether the continued detention of parole-eligible class members is in the public interest, given the danger posed by the COVID-19 outbreak.
In support of this Motion, Plaintiffs rely upon the accompanying Memorandum, declarations, and exhibits. A proposed order is attached for the Court’s convenience.
STATEMENT PURSUANT TO LOCAL RULE 7(m) On March 20, 2020, pursuant to Local Rule 7(m) of the Fed. R. Civ. Pro., Plaintiffs’ legal counsel emailed Assistant U.S. Attorney Jeremy Simon, Defendant’s legal counsel, to advise of the emergency reasons requiring them to seek this preliminary injunction. In an email
1 Louisiana, Mississippi, Arkansas, Tennessee, and Alabama comprise the NOLA ICE Region. Most class members are held in detention facilities in Louisiana and Mississippi. 2 https://www.ice.gov/doclib/dro/pdf/11002.1-hd-arole_of_arriving_aliens_found_credible_fear.pdf.

Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 3 of 4
dated March 20, 2020, Mr. Simon informed Plaintiffs’ legal counsel that Defendants would oppose this Motion.

Dated: March 31, 2020

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that, on March 31, 2020, I electronically filed the attached PLAINTIFFS EMERGENCY MOTION FOR PRELIMINARY INJUNCTION with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

4

Case 1:19-cv-01593-JEB Document 61-1 Filed 03/31/20 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................. 2 II. FACTUAL BACKGROUND ............................................................................................ 2
A. The Parties .......................................................................................................................... 2 B. The COVID-19 Virus......................................................................................................... 4 C. COVID-19 Poses a Grave Risk of Harm to Persons in Congregate Unhygienic Environments Such as the Facilities Currently Housing All Class Members. .................... 6 D. Older Adults and Those with Certain Medical Conditions Are Particularly Vulnerable to the Grave Risk of Harm, Including Serious Illness or Death. ...................... 9 E. People Detained in the Region Face an Elevated Risk of COVID-19 Transmission. 10 F. Many Class Members Present High-Risk Vulnerability to COVID-19. ..................... 12 G. This Court Should Require NOLA ICE to Immediately Reassess Parole for All of Class Members and Should Prioritize the Cases Most Vulnerable to COVID-19. ........... 15 III. LEGAL STANDARD ...................................................................................................... 16 A. Preliminary Issues............................................................................................................ 16
1) Jurisdiction..................................................................................................................... 16 2) Class Certification.......................................................................................................... 17 B. Legal Framework Governing Parole Decisions ............................................................ 17 1) The INA and Implementing Regulations ........................................................................ 17 C. Legal Requisites for Establishing a Preliminary Injunction........................................ 22 IV. ARGUMENT.................................................................................................................... 23 A. Likelihood of success on merits ...................................................................................... 23 1) Plaintiffs’ Claims Arise under the APA.......................................................................... 25 2) The Directive is binding o nICE and DHS under the Accardi doctrine......................... 27 a. The Directive is binding because it impacts rights of arriving aliens...................... 27 b. The Directive is binding because the boilerplate language it contains is ineffective and does not enable Defendants to evade legal challenges............................................... 29 3) Defendants persistently refuse to adhere to the binding directive during the COVID-19 pandemic, despite the issuance of a prior order by this Court granting injunctive relief..... 30 a. Parole grant rates continue to be abysmal and a departure from previous application of the Directive, with no rational justification. ............................................. 31 b. Defendants often deny parole without arriving aliens ever having applied, indicating that they are not conducting individualized determinations as required by the Directive. ........................................................................................................................ 32
ii

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c. Defendants explicitly state that applying for parole is futile, and parole grants will not be issued. ........................................................................................................................ 33 d. Defendants fail to provide a reasonable amount of time for arriving aliens to submit parole applications. ................................................................................................. 34 e. Defendants continue to determine flight risk and danger arbitrarily, despite mounting evidence in favor of granting parole................................................................. 34 f. Defendants disregard the vulnerability of individuals with medical issues and ignore provisions that parole of such persons is justified. ............................................... 37 4) Plaintiffs’ claims validly challenge final agency action, entitling them to judicial review of those claims under the APA............................................................................................... 38 5) Defendants’ refusal to adhere to the Directive renders their actions arbitrary and capricious under the INA, requiring their actions to be overturned under the APA. ........... 39 a. Defendants’ actions are arbitrary and capricious under the APA. ......................... 39 b. Defendants’ actions are contrary to law, as they violate the INA............................ 41 B. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction. .............. 42 1) Plaintiffs Will Become Infected with COVID-19 if They Remain in Detention. ............ 43 2) Plaintiffs Will Likely Become Ill and/or Die from Infection if They Remain in Detention.
45 3) Current Protocols of ICE to Address COVID-19 Do Not Address, and Instead Worsen and Increase Likelihood of, Infection and/or Death from COVID-19. ................................. 46 C. The Balance of Harms and the Public Interest Both Favor Injunctive Relief. .......... 47 CONCLUSION ........................................................................................................................... 49
iii

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TABLE OF AUTHORITIES
Cases
Abdi v. Duke, 280 F. Supp. 3d 373, 385 (W.D.N.Y. 2017) .......................................................... 16 Aptheker v. Sec’y of State, 378 U.S. 500, 505-509 (1964) ........................................................... 28 Aracely v. Nielsen, 319 F.Supp.3d 110, 149, 157 (D.D.C. 2018).......................................... passim Bennet v. Spear, ................................................................................................................ 27, 38, 42 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ................ 42, 46 Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C., 2018) ........................................................ passim Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) .......................................... 22 DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989) ................ 28 Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019)
................................................................................................................................................... 22 Hi-Tech Pharmacal Co. v. United States FDA, 587 F. Supp. 2d 1, 8 (D.D.C. 2008) .................. 23 INS v. Yang, 519 U.S. 26 (1996)............................................................................................. 31, 40 Jacksonville Port Auth. v. Adams, 556 F.2d 52, 58–59 (D.C. Cir. 1977) ..................................... 48 Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013) ................................................................... 48 Las Americas v. Trump,
available at https://www.splcenter.org/sites/default/files/documents/0029._03-272020_emergency_motion_for_tro.pdf......................................................................................... 4 Lopez v. FAA, 318 F.3d 242, 246–48 (D.D.C. 2003).................................................................... 30 Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, (D.D.C. Sept. 5, 2019) .. passim Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001) .................................. 23 Morton v. Ruiz, 415 U.S. 199, 231 (1974) ............................................................................. passim R.I.L-R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ................................................... 17, 38, 47 Ramirez v. U.S. Customs & Enf’t, 310 F.Supp.3d 7 (D.D.C. 2018) ....................................... 38, 39 Service v. Dulles, 354 U.S. 363, 38 (1957)................................................................................... 27 Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010) ................................................................... 22 U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)........................................................... 27 Venetian Casino Resort LLC v. EEOC, 530 F.3d 925 (D.D.C. 2008).......................................... 38 Vitarelli v. Seaton, 359 U.S. 535 (1959) ....................................................................................... 27 Youngberg v. Romeo, 457 U.S. 324 (1982)................................................................................... 28 Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................................... 16
Statutes
§ 212(d)(5)(A)............................................................................................................................... 41 5 U.S.C. § 551......................................................................................................................... 26, 29 5 U.S.C. § 701............................................................................................................................... 25 5 U.S.C. § 704......................................................................................................................... 28, 38 5 U.S.C. § 706............................................................................................................................... 25 5 U.S.C. § 706(2)(A)............................................................................................................... 39, 40 5 U.S.C.A. § 553 ........................................................................................................................... 42
iv

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5 U.S.C.A. § 553 A ....................................................................................................................... 25 6 U.S.C. § 251-98 ......................................................................................................................... 24 8 U.S.C. § 1103(a)(3) (2008) ........................................................................................................ 24 8 U.S.C. § 1182(d)(5)(A) .............................................................................................................. 18 8 U.S.C. § 1225(b)(1)(A)(ii) ......................................................................................................... 17 8 U.S.C. § 1252(f)(1)..................................................................................................................... 16 Administrative Procedures Act .............................................................................................. passim Immigration and Nationality Act .............................................................................................. 1, 17 INA § 212(d)(s)(A) ....................................................................................................................... 24 Rules 8 C.F.R. § 208.30(f) ...................................................................................................................... 17 8 C.F.R. § 212.5 .......................................................................................................... 24, 41, 42, 47 8 C.F.R. § 212.5(b) ................................................................................................................ passim 8 C.F.R. § 235.3(c)........................................................................................................................ 18 8 C.F.R. 212.5(c)-(d)..................................................................................................................... 41 Rule 23 ............................................................................................................................................ 1
v

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In accordance with this Court’s decisions in Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, (D.D.C. Sept. 5, 2019), and Damus v. Nielsen, 313 F. Supp. 3d 317, (D.D.C., 2018), and due to the likelihood of irreparable harm that COVID-19 poses to Plaintiffs-class members’ well-being and safety, Plaintiffs move this Court to expeditiously grant their request for a preliminary injunction and order Defendants to act as follows: 1) immediately conduct individualized parole assessments for all present and future members of the provisional class, as defined by this Court in Mons1; 2) enjoin from denying parole to any provisional class members, absent an individualized determination that such provisional class member presents a flight risk or a danger to the community, as concluded pursuant only to the process2 and limits on use of discretion provided in Enforcement Directive No. 11002.1 (“Directive”); 3) base individualized determinations of flight risk and danger to the community on the specific facts of each provisional class member’s case, not categorical criteria; 4) provide class members with parole determinations that conform to all substantive and procedural requirements of the Directive; 5) given the dangers posed by COVID-19, ensure compliance with parole standards pertaining to individuals with a) serious medical conditions, and/or b) whose continued detention is not in the public interest, pursuant to the Immigration and Nationality Act (“INA”) and its implementing regulations.
1 The Court finds that this proposed class meets the conditions supplied by Rule 23 for substantially the same reasons that the Damus plaintiffs satisfied those same requirements. See Damus, 313 F. Supp. 3d at 329–35. Mons v. McAleenan, 2019 WL 4225322, at *8. 2 Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009).
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INTRODUCTION Plaintiffs’ travails are not novel to this Court.3 Despite this Court’s prior Order, over seventy-five percent of Plaintiffs are still denied parole without an individualized assessment.4 The harrowing COVID-19 pandemic that has ravaged most of the world is sweeping through the United States, presenting a grave threat of irreparable harm to Plaintiffs-class members. Plaintiffs first discuss the nature and scope of this deadly, novel disease, the magnitude of which is unprecedented, and the conditions present in the facilities where Plaintiffs-class members are detained, rendering them vulnerable to imminent risk of irreparable harm and death during the pandemic. Plaintiffs also present evidence supporting their request for immediate, individualized assessments of parole eligibility for all present and future class members; and urge this Court to require NOLA ICE officials to comply with the applicable regulations and parole standards when engaging in these immediate, individualized parole assessments, including standards applicable to class members with serious medical conditions, and whose continued detention is not in the public interest, given the dangers posed by the COVID-19 pandemic.
I. FACTUAL BACKGROUND A. The Parties
Plaintiffs are all present and future members of the class that this Court has provisionally certified, (Doc. No. 33), i.e., arriving aliens eligible for parole, who are currently detained or will be detained by Defendant NOLA ICE. Plaintiffs are or will be detained at the various detention
3 See Order granting preliminary injunction and provisional class certification, R. Doc. 33. 4 Since this Court’s September 5 Order, Defendants have submitted five reports which Plaintiffs discuss in more detail in Section III(B)(2), infra.
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facilities that the NOLA ICE region comprises,5 as they await the final adjudication of their civil immigration removal proceedings.
Many Plaintiffs are older adults or have medical conditions that lead to high risk of serious COVID-19 infection, including diabetes, asthma, hypertension, human immunodeficiency virus (HIV), weakened immune systems from prior treatments for cancer, and psychiatric illness.6 The State of Louisiana is home to the largest number of immigration detention facilities in the NOLA ICE region, with Mississippi a distant second.
The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 is so grave and imminent that it must be properly weighed by ICE in an immediate assessment of parole for all class members, particularly as it relates to the Directive’s express language regarding people who have serious medical conditions, and people whose continued detention is not in the public interest. For these reasons, Plaintiffs request a preliminary injunction requiring Defendants to conduct immediate, individualized parole assessments for all class members presently detained in the NOLA ICE region and for all future class members thereafter.
5 including but not limited to Adams County Detention Center (“Adams”), Catahoula Correctional Center (“Catahoula”), Pine Prairie ICE Processing Center (“Pine Prairie”), Richwood Correctional Center (“Richwood”), River Correctional Center (“River”), South Louisiana Detention Center (“South Louisiana”), Tallahatchie County Correctional Facility (“Tallahatchie”), LaSalle ICE Processing Center (“LaSalle”), and Winn Correctional Center (“Winn”). 6 “In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness,” FrancoParedes Exp. Decl. ¶17, Table 1.
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B. The COVID-19 Virus The novel COVID-19 virus has led to a global pandemic. Over the last several months,
634,835 people worldwide have received confirmed diagnoses of COVID-19, and over 29,895 people have died.7 The United States now leads in the number of confirmed cases globally.8
There is no vaccine against COVID-19 and there is no known cure.9 According to preliminary data from China, South Korea, Italy, Spain, and the United States, 80 percent of confirmed cases tend to occur in persons 30 to 69 years of age regardless of underlying medical conditions, and 20 percent of those individuals develop severe symptoms or become critically ill. Franco-Paredes Exp. Decl. ¶17. COVID-19 is most likely to cause serious illness and elevated risk of death for older adults and those with certain medical conditions or underlying disease. Franco-Paredes Exp. Decl. ¶12. Those particularly vulnerable includes people with weakened immune systems (including due to cancer treatment), chronic lung disease, asthma, serious heart conditions, diabetes, renal failure, liver disease, and possibly pregnancy.10
Among those with severe clinical manifestations, regardless of their age or underlying medical conditions, the virus progresses into respiratory failure, septic shock, and multiorgan dysfunction requiring intensive care support including the use of mechanical ventilator support. Franco-Paredes Exp. Decl. ¶17. The only known effective measures to reduce the risk of serious
7 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report-69, March 29, 2020, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200329sitrep-69-covid-19.pdf?sfvrsn=8d6620fa_4. 8 “The U.S. Now Leads the World in Confirmed Coronavirus Cases,” New York Times, March 26, 2020, https://www.nytimes.com/2020/03/26/health/usa-coronavirus-cases.html. 9 Expert Declaration of Joshua Sharfstein, ¶ 6, filed in support of Plaintiffs’ Motion for Temporary Restraining Order in Las Americas v. Trump, available at https://www.splcenter.org/sites/default/files/documents/0029._03-272020_emergency_motion_for_tro.pdf. (“Sharfstein Decl.”). See also, World Health Organization, Q & A on COVID-19, March 9, 2020, https://www.who.int/news-room/q-a-detail/q-acoronaviruses. 10 Id.
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illness or death caused by COVID-19 are social distancing and improved hygiene, which have led to unprecedented public health measures around the world and in the United States.11
Detention of any kind requires large groups of people to be held together in a confined
space and creates the worst type of setting for curbing the spread of a highly contagious infection
such as COVID-19. Franco-Paredes Exp. Decl. ¶23. People who are confined in detention centers
will find it virtually impossible to engage in the necessary social distancing and hygiene required
to mitigate the risk of transmission, even with thoughtful guidance and plans in place. Franco-
Paredes Exp. Decl. ¶¶11,12. For this reason, several jurisdictions at the urging of public health experts, are ordering the release of people from jails, prisons and detention centers.12
Moreover, a release of and moratorium on the detention of future class members allows for
greater risk mitigation for all people detained or working in these detention centers. Franco-
Paredes Exp. Decl. ¶¶ 22,28. Release of Mons class members from custody would also reduce the
burden on the region’s limited health care infrastructure, as it lessens the likelihood of an
overwhelming number of people becoming seriously ill from COVID-19 at the same time. Franco-
Paredes Exp. Decl. ¶27. Louisiana Governor John Bel Edwards recently reported that Louisiana has seen the fastest rate of growth of COVID-19 virus in the world.13 The situation is so dire in
11 Expert Declaration of Dr. Robert Greifinger, ¶ 4, available at https://www.aclu.org/legaldocument/dawson-v-asher-expert-declaration-dr-robert-greifinger. 12 Prison Policy Initiative, “Responses to the Covid-19 Pandemic,” March 27, 2020, available at https://www.prisonpolicy.org/virus/virusresponse.html. See also BBC News, “US jails begin releasing prisoners to stem Covid-19 infections,” March 19, 2020 available at https://www.bbc.com/news/world-us-canada-51947802 (noting efforts in the states of Ohio, California, Colorado, New York, Alabama, New Jersey, South Carolina, Florida, Texas, Washington, Utah and Louisiana ordering the release of people from incarceration and detention) 13 Hollie Silverman, Louisiana Governor says his state has the fastest growth rate of coronavirus cases in the world, CNN.COM (March 24, 2020), https://www.cnn.com/2020/03/23/us/louisiana-coronavirus-fastestgrowth/index.html (accessed March 26, 2020). See also, Louisiana Governor’s Office of Homeland Security and Emergency Preparedness, COVID-19 Louisiana Case Info, https://gov.louisiana.gov/assets/docs/covid/govCV19Brief-2.pdf (releasing data by a researcher at
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Louisiana that on March 22, 2020, Governor Bel Edwards issued a statewide “stay-at-home” order,
in an attempt to stem the horrific growth of the COVID-19 virus in the state.14
C. COVID-19 Poses a Grave Risk of Harm to Persons in Congregate Unhygienic Environments Such as the Facilities Currently Housing All Class Members.
Immigration detention centers in the United States are tinderboxes for the transmission of
highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19.
Franco-Paredes Exp. Decl. ¶15. In addition, these detention centers are often unhygienic
environments. Scharf Exp. Decl. ¶18 at (a)(i). Once an outbreak is underway inside a detention
facility, a person in such a facility is expected to be at a high risk of acquiring the virus and
transmitting it to others inside.15 Infectious diseases that are communicated by air or touch are
more likely to spread in these environments. Franco-Paredes Exp. Decl. ¶23. A recent study
showed that the virus could survive for up to three hours in the air, four hours on copper, up to
twenty-four hours on cardboard, and up to two to three days on plastic and stainless steel.16 This
presents an increased danger for the spread of COVID-19 if and when it is introduced into a
detention facility. Franco-Paredes Exp. Decl. ¶¶18,20.
the University of Louisiana Lafayette found that Louisiana presently has the fastest spread of COVID-19 of any region in the world). 14 Same Karlin, John Bel Edwards urges residents to heed stay-at-home order, THE ADVOCATE (March 23, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_df60a9ec-6d5c-11eaac94-c3207fa0a583.html (accessed March 26, 2020); Office of the Louisiana Governor, https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf (last accessed March 26, 2020). 15 Tulane Open Letter, available at https://sph.tulane.edu/open-letter-covid19-jail, last accessed Mar. 26, 2020. 16 Novel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show. TIME (https://time.com/5801278/coronavirus-stays-on-surfaces-days-tests/) (last visited March 26, 2020). A new study of an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom. Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVID-19 cases, Wenzhou, China, 2020. Emerg Infect Dis. 2020 Jun. (https://doi.org/10.3201/eid2606.200412) (last visited March 26, 2020).
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Enclosed group environments, like cruise ships or nursing homes, have become the sites for the most severe outbreaks of COVID-19.17 Immigration detention facilities have even greater risk of infectious spread because of crowding, the proportion of vulnerable people detained, and often scant medical care resources. Franco-Paredes Exp. Decl. ¶¶12,13. People living in such close quarters cannot achieve the “social distancing” needed to effectively prevent the spread of COVID19. Franco-Paredes Exp. Decl. ¶12. See also Scharf Exp. Decl. ¶¶24,26. In addition, many immigration detention facilities lack adequate medical infrastructure to address the spread of infectious disease and treatment of people most vulnerable to illness in detention. Franco-Paredes Exp. Decl. ¶ 13.
Class members are held in crowded confinement with dangerously unsafe hygienic conditions. At Richwood, for example, some are housed in dorms with as many as 100 men who are forced to share four toilets, four sinks, and five showers in a shared room. O.M.H. Decl. ¶10. At Adams, some are housed in dorms holding as many as 240 men who are forced to share six toilets, 12 sinks, and one shower room with 12 showerheads in close proximity. S.U.R. Decl. ¶13. At South Louisiana, as many as 72 women are housed in a single dorm with beds less than two feet apart from one another and forced to share three toilets, three sinks, and six phones, none of which are properly sanitized. K.S.R. Decl.¶15; L.P.C. Decl. ¶¶14,16. These women also report that they are not provided enough toilet paper and had no toilet paper for nearly a week in March 2020. Id. At LaSalle, some class members are housed in dorms with more than 90 men who are forced to share five toilets, eight sinks and one shower room. T.M.F. Decl. ¶14.
17 Centers for Disease Control and Prevention, https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship; https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-termcare-facilities.html, last accessed March 26, 2020.
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Class members also report suffering from diarrhea and lack of nutrition due to the poor quality of food they are provided. S.U.R. Decl. ¶13; O.M.H. Decl. ¶10; K.S.R Decl. ¶10; R.P.H. Decl. ¶19; and L.P.C. Decl. ¶23. At most of the facilities, class members report that detention center staff are not taking recommended precautions, are not providing COVID-19 education, are not consistently utilizing masks or gloves, and are not providing hand sanitizer, disinfectant or sufficient soap for detainees to clean themselves. T.M.F. Decl. ¶¶15-16, 19; Y.P.T. Decl. ¶¶15-16, 22-23; R.P.H. Decl. ¶¶19-21; L.P.C. Decl ¶¶15, 22; O.M.H. Decl. ¶ 8; S.U.R. Decl. ¶¶ 14-15; and K.S.R. Decl. ¶¶14,18. Many who are desperate for information related to COVID-19 have been met with force or harm in these facilities.18 Under these conditions, class members cannot practice proper social distancing or hygiene, the only known methods to stem the rapid spread of COVID19. Franco-Paredes Exp. Decl. ¶¶11,12; see also Scharf Exp. Decl. ¶24.
Moreover, given the high population density of these facilities and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, who is shedding the virus enters a facility. Franco-Paredes Exp. Decl. ¶20. Of those infected, about one-fifth will get so ill that they require hospital admission. Id. About ten percent will develop severe disease requiring treatment only available in the intensive care unit, at least five percent of whom will likely die from respiratory failure, septic shock and multiorgan failure. Id. If those who require it cannot be hospitalized, many more will die in detention without access to necessary medical equipment, such as ventilators. Id. at ¶21.
18 Mother Jones, “ICE Detainees Were Pepper-sprayed During a Briefing on Coronavirus,” March 26, 2020, available at https://www.motherjones.com/politics/2020/03/ice-detainees-were-peppersprayed-during-a-briefing-on-coronavirus/?fbclid=IwAR0vM4J5UTiubdNO_XCc5m2MWYyVf2vU1FFzwjNuU-KTAWGz01nA2Y6V1A. See also Mother Jones, “ICE Detainee Reports He was Pepper-Sprayed and Sent to Isolation,” March 25, 2020, available at https://www.motherjones.com/politics/2020/03/ice-geo-detention-pine-prairie-pepper-spraylouisiana/.
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D. Older Adults and Those with Certain Medical Conditions Are Particularly Vulnerable to the Grave Risk of Harm, Including Serious Illness or Death. The COVID-19 pandemic is devastating the United States. As of March 29, 2020, there
have been 103,321 confirmed cases and 1,668 deaths.19 Moreover, the transmission of COVID-19 grows exponentially. Franco-Paredes Exp. Decl. ¶20-21. People over the age of 50 and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious COVID-19 disease for people of any age, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, cancer treatment, HIV, or other autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, pregnancy and psychiatric illness. Franco-Paredes Exp. Decl. ¶16, Table 1.
In most people, COVID-19 causes fever, cough, and shortness of breath. But for people over fifty or with high-risk medical conditions, the shortness of breath can often be severe.20 Even in younger and healthier people, infection of this virus requires supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.21 Most people in higher risk categories who develop serious disease, however, will need advanced support. Franco-Paredes Exp. Decl. ¶24. This level of support can quickly exceed local health care resources. Franco-Paredes Exp. Decl. ¶26.22
19 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report-69, March 29, 2020, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200329sitrep-69-covid-19.pdf?sfvrsn=8d6620fa_4. 20 Expert Declaration of Dr. Jonathan Golob ¶5, available at https://www.aclu.org/legaldocument/dawson-v-asher-expert-declaration-dr-jonathan-golob?redirect=dawson-v-asher-expertdeclaration-dr-jonathan-golob. 21 Id. 22 According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care
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Preliminary data from China showed that twenty percent of people in high-risk categories
who have contracted COVID-19 there have died.23 Social distancing and vigilant hygiene,
including washing hands with soap and water, are the only known effective measures for protecting
vulnerable people from COVID-19. Scharf Exp. Decl. ¶24. Projections by the Centers for Disease
Control and Prevention (CDC) indicate that between 160 million and 214 million people in the
United States could be infected with COVID-19 over the course of the epidemic without effective
public health intervention, with as many as 1.7 million deaths in the most severe projections.24
Many Plaintiffs qualify as having high-risk vulnerability to COVID-19. Infra Note, Section IV.
E. People Detained in the Region Face an Elevated Risk of COVID-19 Transmission.
The NOLA ICE region comprises five states: Louisiana, Mississippi, Alabama, Arkansas,
and Tennessee. The majority of class members are housed in facilities located in Mississippi and
Louisiana, with the latter state hosting the largest number of detention facilities, housing as many
as 8,000 people25 at any given time in aggregate.26
systems. For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent. Franco-Paredes Exp. Decl. ¶26 23 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”); Wei-jie Guan et al., Comorbidity and its impact on 1,590 patients with COVID-19 in China: A Nationwide Analysis, medRxiv (Feb. 27, 2020), at 5. 24 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. TIMES (March 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html (accessed March 26, 2020). 25 “[W]here the immigrant detainee population has surged in recent months and hit 8,000 earlier this year.” PBS News, December 4, 2019, available at https://www.pbs.org/newshour/nation/iceconfirms-officers-in-louisiana-jail-pepper-sprayed-protesting-migrants. 26 As stated supra, Louisiana has seen the fastest rate of growth of COVID-19 infection for the first 13 days of any area in the world, prompting the Governor to issue a “stay-in-place” order to stem the tide of COVID-19’s rapid spread. See Office of the Louisiana Governor, https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf (last accessed March 26, 2020).
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As of March 29, 2020, there were 3,540 confirmed cases of COVID-19 and 151 deaths from COVID-19 reported in Louisiana.27 As of March 29, 2020, there were 847 confirmed cases and 16 deaths from COVID-19 reported in Mississippi.28 The COVID-19 outbreak in Louisiana has resulted in unprecedented health measures to facilitate and enforce social distancing, as evidenced by the Governor’s “stay-in-place” order issued March 22, 2020.29 While schools, businesses, and government facilities close around the state, a high risk remains that COVID-19 will spread at the numerous immigration detention facilities in the State. Franco-Paredes Exp. Decl. ¶ 15.
Louisiana has the highest per capita rate of COVID-19 incidence in the world. Scharf. Exp. Decl. ¶17 at (h). The areas in which ICE NOLA centers are located are characterized by low medical access and public citizen health illiteracy. Id at (i). The managers hired by the region’s ICE contractors (namely the GEO Group and LaSalle Corrections) have little training to cope with infectious disease. Id at (j).30 COVID-19 has already begun to spread within Louisiana’s carceral system. At the Federal Correctional Center in Oakdale, Louisiana which is located a few feet away from the Oakdale Immigration Court and a mere twenty-minute drive from Pine Prairie, at least sixty inmates are in quarantine and at least one has died due to a COVID-19 outbreak.31
27 Louisiana Department of Health statistics, updated daily, available at: http://ldh.la.gov/Coronavirus/. 28 Mississippi Department of Health statistics, updated daily, available at: https://msdh.ms.gov/msdhsite/_static/14,0,420.html. 29 Office of the Louisiana Governor, https://gov.louisiana.gov/assets/Proclamations/2020/JBE33-2020.pdf (last accessed March 26, 2020). 30 See also Declaration of Laura G. Rivera, Esq. 31 Washington Post, “An explosion of coronavirus cases cripples a federal prison in Louisiana,” March 29, 2020, available at https://www.washingtonpost.com/national/an-explosion-ofcoronavirus-cases-cripples-a-federal-prison-in-louisiana/2020/03/29/75a465c0-71d5-11ea-85cb8670579b863d_story.html.
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F. Many Class Members Present High-Risk Vulnerability to COVID-19. People who are over fifty or of any age with certain specified medical conditions, “are
deemed to be at high risk of developing severe disease and dying from COVID-19.” FrancoParedes Exp. Decl. ¶16. R.P.H. is a 50-year-old Cuban national currently detained at South Louisiana. R.P.H. Decl. ¶1. She has been detained by ICE since July 25, 2019. Id at ¶13. R.P.H. is a breast cancer survivor who has undergone multiple rounds of radiation throughout her life and is currently experiencing spinal cord inflammation affecting her nervous system. Id at ¶¶4-5,20. She is eligible for parole, but she has been denied four times despite submitting requests supported by evidentiary documents. Id at ¶14. R.P.H.’s health is rapidly deteriorating in detention, where she has experienced flu-like symptoms including body pain, sore throat, ear pain, fever, dizziness, nausea, headaches, and loss of vision. Id at ¶¶15-18. She is exposed to at least seventy-two other detained women, with many presenting flu-like symptoms and is unable to practice social distancing. Id at ¶¶22,25. R.P.H. is critically vulnerable to COVID-19 because of her weakened immune system, history of recurring cancer, and the conditions of confinement at South Louisiana.
O.M.H. is a thirty-two year-old Venezuelan national detained at LaSalle. O.M.H. Decl. ¶1. He has been detained by ICE since May 2019, and was recently transferred from Richwood, where he spent most of his time in detention. Id at ¶¶1,4. He is eligible for parole, but his requests for release have not been granted and his last application remains pending. Id at ¶¶6,10. O.M.H. is HIV-positive and suffers from Hepatitis C, depression, and anxiety. Id at ¶¶1,6. O.M.H. was not provided medication to treat his HIV condition until about January 2020. Id at ¶6. Despite the threat of COVID-19 and the overcrowded dorms, ICE continued to transfer new detainees to Richwood as recently as March 23, 2020, without implementing any proper quarantine precautions. Id at ¶9. O.M.H. lost a significant amount of weight, necessitating at least two visits
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to the nearest hospital. Id at ¶¶9,11. O.M.H. is vulnerable to COVID-19 because of his HIV and Hepatitis C diagnoses, as well as his deteriorating health due to his conditions of confinement.
B.A.E. is a Cameroonian national currently detained at LaSalle. B.A.E. Decl. ¶1. He has been detained by ICE since October 2019. Id at ¶6. B.A.E. suffers from a chest muscle injury, a recurrent fever, and a wound in his throat. Id at ¶ 8-9. He is currently seeing blood in his stool and when he coughs. Id. He is eligible for parole and has applied three times, but all his requests were denied. Id. Despite his symptoms, LaSalle has not provided him with adequate medical care, refusing to run tests to determine the cause of his ailments. Id. B.A.E. is vulnerable to COVID-19 because of his current state of health and due to the conditions of confinement at LaSalle.
Y.P.T. is a thirty-year-old Cuban national detained at Catahoula. Y.P.T. Decl. ¶1. Y.P.T. has been detained by ICE since August 2019, and is eligible for parole. Id at ¶¶8,10. Y.P.T. applied for parole three times, but his requests were denied. Id at ¶¶10,27. In or about February 2020, he suffered a fall that resulted in a right foot fracture. Id at ¶18. He was forced to wait over one week before being taken to a hospital to get a proper diagnosis of his fracture. Id. His ankle and foot remain swollen. Id. Y.P.T. has been confined to a wheelchair for over one month and is unable to bathe or mobilize without the assistance of other detained men. Id at ¶19. During a recent hospital visit, Y.P.T. was openly exposed to at least twelve other individuals without any social distancing measures or other precautions to protect him and others. Id. Y.P.T. is vulnerable to COVID-19 due to his weakened health as a result of his immobility and his conditions of confinement.
S.U.R. is a 59-year-old Nicaraguan national detained at Adams. S.U.R. Decl. ¶1. S.U.R. has been detained by ICE for over 13 months Id. S.U.R. suffers from hypertension and a systolic heart murmur, requiring medication and medical supervision. Id. He is eligible for parole but was denied once without the opportunity to affirmatively apply. Id at ¶¶7-9. He filed a redetermination
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request but never received a response. Id. S.U.R. is held in a dorm with 240 men, some of whom are over the age of fifty-five and others who suffer from illnesses including diabetes, asthma and hypertension. Id at ¶¶13,16. S.U.R. is critically vulnerable to COVID-19 because of his age and significant health conditions.
T.M.F. is a 44-year old Cameroonian national detained at LaSalle. T.M.F. Decl. ¶ 1. T.M.F. has been detained by ICE since October 28, 2019. Id. at ¶ 7. T.M.F. suffers from depression and chronic injuries due to torture he endured in Cameroon, including to his eyes, back, wrists and knees. Id at ¶ 13. He is eligible for parole and has applied twice, but both requests were denied. Id at ¶¶ 9-10. An immigration judge granted T.M.F. Withholding of Removal in early March 2020, but ICE refuses to release him from detention. Id at ¶¶10-11. Throughout his detention, T.M.F.’s conditions of confinement have been unsanitary and lacking in access to adequate medical care. Id at ¶¶12-15. T.M.F. is vulnerable to COVID-19 because of his chronic health issues and due to his conditions of confinement.
K.S.R. is a twenty-seven-year-old Cuban national detained at South Louisiana. K.S.R. Decl. ¶1. She has been detained by ICE since October 2019. Id at ¶5. She is parole-eligible but her multiple requests were denied, despite extensive supporting evidence in her applications. Id. ¶7. K.S.R. was diagnosed with H1N1 influenza in early March 2020, after she experienced high fever, vomiting, and coughing. Id. She continues to have flu-like symptoms with minimal improvement. Id at ¶9. K.S.R. was placed in isolation for six days without being provided hygiene products, food, or medical attention. Id at ¶¶9-11. K.S.R. shares her dorm with at least fifty-two other women living in close proximity to each other. Id at ¶¶8,12-13. Some of K.S.R.’s dormmates are elderly women, cancer survivors, or suffer from chronic illnesses including diabetes, asthma, hypertension, and lupus. Id at ¶¶14-15. K.S.R. and the other detainees in her dorm are exposed to
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guards who do not exercise safety precautions or provide education to prevent COVID-19 from spreading in the facility. Id at ¶¶16-17. K.S.R. is vulnerable to COVID-19 because of her weakened immune system as a result of contracting H1N1 influenza and her conditions of confinement.
G. This Court Should Require NOLA ICE to Immediately Reassess Parole for All of Class Members and Should Prioritize the Cases Most Vulnerable to COVID-19. As risk mitigation is the only known strategy that can protect people from COVID-19,
public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable detainees from custody. Franco-Paredes Exp. Decl. ¶¶ 2728. See also Scharf Exp. Decl. ¶¶ 18, 34. Dr. Peter Scharf, a correctional health expert, has concluded that “[t]he best epidemiological models available, based on valid scientific research, suggest widespread COVID-19 contagion in this region’s ICE facilities, which will lead to broad contagion unless release efforts are initiated in a rapid timeframe.” Exp. Decl. ¶ 4. Dr. Scarf added that, “[t]he reality that this region’s ICE facilities are located in remote or rural areas with limited resources and that medical resources proximate to the relevant ICE detention facilities leads to the conclusion that, were a COVID-19 infection to occur, widespread, long-term morbidity and mortality are more probable than not.” Id.
Dr. Carlos Franco-Paredes, an infectious diseases expert, recommends “releasing detain[ed] asylum seekers on parole from these centers” because it “constitutes a high-yield public health intervention that may significantly lessen the impact of this outbreak.” Franco-Paredes Exp. Decl. ¶28. He further recommends that ICE should focus on “targeting the release of persons in the age groups at risk of severe disease and death and persons with underlying medical conditions” as it “may lessen the human and financial costs that this outbreak may impose.” Id.
All class members are vulnerable to serious illness or death if they remain in civil detention in the facilities that NOLA ICE administers. Franco-Paredes Exp. Decl. ¶15. Class members risked
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their lives to escape persecution and torture in their home countries for what they believed was a safe haven in the United States. These asylum-seekers now find themselves trapped in a what has essentially become a ticking-timebomb and, for many, a tomb.
II. LEGAL STANDARD A. Preliminary Issues
1) Jurisdiction. This Court has jurisdiction to adjudicate Plaintiffs’ Emergency Motion for Preliminary Injunction.32 As a result of the COVID-19 crisis, Plaintiffs seek an injunction requiring that NOLA ICE officials immediately administer to all present and future class members individualized parole assessments, in a method consisted with the applicable regulations and standards of the Directive; they are not seeking to challenge the outcome of the individualized parole assessments itself. See Abdi v. Duke, 280 F. Supp. 3d 373, 385 (W.D.N.Y. 2017) (federal district court had jurisdiction beyond the jurisdictional bar of § 1252(a)(2)(B)(ii), where plaintiffs were not asking the court to review the propriety of any given parole decision, but, instead, simply sought compliance with certain minimum procedural safeguards when parole decisions are made); Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that §1252(a)(2)(B)(ii) does not entirely strip federal courts of jurisdiction over claims relating to the parole process). Nor do Plaintiffs seek to violate the INA by enjoining the operation of any detention statute, in violation of 8 U.S.C. § 1252(f)(1). Rather, Plaintiffs assert that Defendants continue to defy this Court’s injunction, by ignoring the regulations and standards of the Directive, and as a result, have placed current and future class members at risk of irreparable harm from exposure to COVID-19:
32 See, Mons 2019 WL 4225322, at *4 (“the plaintiffs there and here, however, “are not challenging the outcome of ICE’s decisionmaking, but the method by which parole is currently being granted (or denied)) (emphasis added); Damus 313 F. Supp. 3d at 327
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“[b]ut ‘[w]here ... a petitioner seeks to enjoin conduct that allegedly is not even authorized[,] ... the court is not enjoining the operation of [the statute], and [INA] – § 1252(f)(1) therefore is not implicated.’” Mons 2019 WL 4225322, at *4 (internal quotations and citations omitted). Therefore, Plaintiffs here challenge “‘an overarching agency’ action as unlawful – in this case, Defendants’ systematic failure to follow the Directive [and this Court’s September 5 Order], and to instead impose detention without its safeguards and individualized determinations.” Damus, 313 F. Supp. 3d at 328. (citing R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015)). In this case, NOLA ICE’s disavowal of the Directive will likely result in irreparable harm to the Plaintiffs, as outbreaks of the deadly COVID-19 are likely to sweep through the Louisiana detention facilities housing class members. 2) Class Certification Plaintiffs are part of the class that this Court certified, consisting of: “[(1)] [a]ll arriving asylum-seekers (2) who receive positive credible fear determinations; and (3) who are or will be detained by U.S. Immigration and Customs Enforcement; (4) after having been denied parole by the New Orleans ICE Field Office.’” Mons, 2019 WL 4225322, at *8; See also, Damus 313 F. Supp. 3d at 329–35. B. Legal Framework Governing Parole Decisions
1) The INA and Implementing Regulations The Immigration and Nationality Act (hereinafter “INA”), sets out the process by which noncitizens can apply for asylum. See 8 U.S.C. § 1225(b)(1)(A)(ii). Under the INA, if an interviewing immigration officer “determines that an asylum-seeker has a ‘credible fear’ of persecution in her home country, that person ‘shall be detained for further consideration of [her] application.’” Id. § 1225(b)(1)(B)(ii); see also 8 C.F.R. § 208.30(f) (describing the procedures surrounding a positive finding of credible fear). In addition, the INA allows the Attorney General to temporarily parole detained asylum-seekers who have received a positive credible fear finding:
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“permitting these individuals for ‘urgent humanitarian reasons or significant public benefit.’ See 8 U.S.C. § 1182(d)(5)(A).
The INA’s implementing regulations further provide that DHS must exercise its parole discretion on a “case-by-case basis” and that it may parole arriving aliens who “present neither a security risk nor a risk of absconding” and “whose continued detention is not in the public interest”. 8 C.F.R. § 212.5(b); Mons, 2019 WL 4225322, at *1; see also 8 C.F.R. § 235.3(c).33
2) The Directive The Directive defines circumstances under which there is a “public interest” in granting parole pursuant to the INA and implementing regulations. It provides that, absent exceptional overriding factors, an asylum-seeker who has established a credible fear of persecution should be granted parole in the “public interest,” and released from detention while pursuing an asylum claim, so long as the individual establishes their identity and presents neither a flight risk nor danger to the community. Directive ¶ 6.2. In considering parole applications, the Directive requires 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. The Directive also delineates a number of procedural requirements for DHS’s adjudication of parole applications. These prescribe that the agency must inform asylum-seekers that they have a right to seek parole in a language they understand,” id. at ¶ 6.1; conduct a parole interview within “seven days following a finding that an arriving [noncitizen] has a credible fear,” id. at ¶ 8.2; provide written notification of the parole decision that contains “a brief explanation of the reasons for any decision to deny parole” within seven days of the interview, id. at ¶ 6.5-6.6;
33 “[a]gency regulations provide that the Secretary of Homeland Security may parole asylum-seekers who are ‘neither a security risk nor a risk of absconding,’ in the service of such ‘urgent humanitarian reasons or significant public benefit.” 8 C.F.R. § 212.5(b); Mons, 2019 WL 4225322, at *1; see also 8 C.F.R. § 235.3(c)
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notify applicants whose applications are denied that they may request a redetermination, id. at § 8.2; and, consider whether setting a reasonable bond and/or” an alternative to detention program would mitigate any flight risk concerns, id. at ¶ 8.3.2.c.
Moreover, the Directive’s applicable regulations describe five categories of “aliens who may meet the parole standards based on a case-by-case determination, provided they do not present a flight risk or security risk . . .” Id. at ¶ 4.3. Among the five categories are: “(1) aliens who have serious medical conditions, where continued detention would not be appropriate;” and “(5) aliens whose continued detention is not in the public interest.” Id. (emphasis added).
ICE Field Offices have historically relied on the Directive to grant parole to thousands of asylum-seekers with credible fears of persecution, based on individualized findings that their detention was unnecessary. This is not surprising, as the overwhelming majority of asylum-seekers who establish a credible fear lack any criminal history, pose no threat to public safety, and do not need to be detained to ensure their appearance for court proceedings.34 Since enacting the Directive, DHS has not revoked or amended it.
This Court has acknowledged that, since approximately 2017, the NOLA ICE Field Office has engaged in a blanket parole-denial policy, making NOLA ICE the region with lowest percentage of parole grants in the United States: “the percentage of asylum-seekers that that Office has released on parole has dramatically declined in recent years. The Office currently retains the lowest release rate of any jurisdiction in the country, having denied 98.5% of release requests in
34 See, e.g., Mark Noferi, “A Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers” at 1, 3 (July 2015) (summarizing research showing that asylum seekers are predisposed to comply with legal processes), available at: https://www.americanimmigrationcouncil.org/sites/default/files/research/a_humane_approach_ca n_work_the_effectiveness_of_alternatives_to_detention_for_asylum_seekers.pdf.
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2018 and 100% of requests made thus far in 2019 (internal citations omitted).” Mons, 2019 WL 4225322, at *2.
Pursuant to the Sept. 5 Order, Defendants have submitted monthly reports detailing the number of parole requests received, and whether the requests were granted or denied. Defendants have thus far submitted five reports, showing that the monthly parole-grant rates are as follows: November 2019 Report: 0.66 percent grant rate for redetermination requests and 1.3 percent grant rate for initial applications; December 2019 Report: 1.16 percent grant rate for redetermination requests and 1.7 percent grant rate for initial applications; January 2020 Report: 1.8 percent grant rate for redetermination requests and 2.59 percent grant rate for initial applications; February 2020 Report: 21 percent grant rate for redetermination requests and 47.6 percent grant rate for initial applications; and March 2020 Report: 27 percent grant rate for redetermination requests and 11 percent grant rate for initial applications.
While the Reports show a modest increase in parole grants, the parole-grant numbers are nowhere near the historical numbers for NOLA ICE region, e.g. the 75 percent parole grant rate reported in 2016, the year before this region saw a precipitous drop to a parole grant rate of 1.8 percent. In addition, Plaintiffs have reason to believe that Defendants continue to circumvent this Court’s Order by failing to conduct individualized assessments of parole submissions and resubmissions, as required by the Directive. Moreover, Defendants’ reports, (particularly the February 2020 report reflecting only twenty-one initial parole applications), may not accurately reflect the total number of parole requests received by deportation officers across the region’s detention facilities.
Unfortunately, class members with serious medical conditions continue to languish in detention facilities in the NOLA ICE region, and with the specter of a COVID-19 outbreak, now
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find themselves in conditions that pose an equal or graver threat to their lives, than the ones that forced them to flee their homelands and seek asylum in the United States.
For example, class member O.M.H. was denied parole despite having HIV and Hepatitis C and remains in detention. Decl. ¶1,5. Class member K.S.R. tested positive for H1N1 but was nonetheless denied parole and remains in custody despite a weakened immune system. Decl. ¶9. Class member L.P.C. knows individuals currently in detention without parole who suffer from medical conditions, such as asthma, diabetes, cancer, and lupus, that could result in death, should a COVID-19 outbreak take place. Decl. ¶22. Class member Y.P.T. remains in detention, after NOLA ICE officials denied all four of his parole requests, despite satisfying all parole requirements, providing all necessary evidence, and being confined to a wheelchair. Decl., ¶ 1926, 28. Class member B.A.E., reports coughing “clots of blood,” having “blood in [his] feces, and suffering from continuous fever, but only receives Ibuprofen and remains detained in a crowded bunk. Decl., ¶ 10. Class member R.P.H., who was denied parole despite having been a cancer survivor, was explicitly told she would not receive parole unless her cancer returned. Decl., ¶ 4-5, 15. And class member S.U.R.’s nephew remains detained despite having only one functioning kidney. Decl., ¶ 12.
All Plaintiff-witnesses have applied for release on parole at least once. Most suffer from serious medical problems and are considered part of high-risk populations that are being decimated by COVID-19. There is no public benefit in keeping these asylum-seekers in detention, at the risk of irreparable injury. The experts agree that keeping these vulnerable class members detained during the COVID-19 pandemic will result in risk of irreparable physical injury, and even death.
As the anecdotal evidence from class members shows, NOLA ICE officials continue to defy the Directive, even weeks after the dangers of COVID-19 became a reality. Class members
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languish in crowded detention centers, and those who are sick suffer without access to adequate health care. Experts warn that class members face a certainty of irreparable harm and death once these detention centers experience COVID-19 outbreaks, as they are congregate environments that are simply ill equipped to prevent and successfully navigate an outbreak of such unprecedented, deadly proportions. Franco-Paredes Exp. Decl. ¶¶ 12, 13.
C. Legal Requisites for Establishing a Preliminary Injunction In deciding whether to issue a preliminary injunction, a court must consider “whether (1)
the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest.” Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Plaintiffs meet these requirements.
Plaintiffs bear the burden of showing that they meet all factors: “[t]he movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). “The last two factors ‘merge when the Government is the opposing party.’” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). This Court appeared to merge the last two factors in its analysis granting Plaintiffs’ preliminary injunction motion: “these last two prongs pose no serious obstacle to Plaintiffs' request for a preliminary injunction.” Mons 2019 WL 4225322, at *11.
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III. ARGUMENT A. Likelihood of success on merits In order to obtain injunctive relief, plaintiffs must demonstrate that they are likely to prevail on the merits of their claims. The determination as to whether a party has successfully demonstrated such likelihood is informed by the circumstances of the particular case and claims being made. See Hi-Tech Pharmacal Co. v. United States FDA, 587 F. Supp. 2d 1, 8 (D.D.C. 2008). While the four factors of injunctive relief are not considered in isolation from one another, a strong showing of likely success on the merits may warrant issuance of preliminary injunctive relief, even if the plaintiff makes a less compelling showing on the other factors in injunctive-relief analysis. Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001); Hi-Tech Pharmacal Co., 587 F. Supp. 2d at 7. Plaintiffs re-assert the first two claims presented in their original complaint to the Court, but now make these assertions as the basis for injunctive relief requested to enjoin Defendants from acting in a manner specifically harmful to Plaintiffs’ during the COVID-19 pandemic. Plaintiffs will demonstrate that they are likely to succeed on the merits of these claims, which consist of the following:
1) Defendants’ policy and practice of ignoring the Directive is arbitrary, capricious, and contrary to the law in violation of [the APA See Compl., ¶ 133.
2) Defendants’ “failure to provide individualized determinations of flight risk and danger” violate the INA and implementing regulations and the APA See Compl., ¶¶ 133-137.
The INA, codified in Title 8 of the U.S. Code, contains important provisions of U.S. immigration law. For example, the basis for the existing parole system in the U.S. is found in INA
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§212(d)(5)(A), which grants the Secretary of DHS authority to make parole determinations pursuant to its provisions. INA §212(d)(5)(A). Furthermore, through the INA, Congress delegated rulemaking power to the Secretary, as it required that they “shall establish such regulations … as he deems necessary for carrying out his authority under the provisions” of the INA. 8 U.S.C. § 1182(d)(5)(A). The Secretary has delegated parole authority to the three immigration agencies which are components of DHS: USCIS, CBP, and ICE.35
The authority granted by the Secretary to ICE includes the non-law enforcement functions of parole programs, including the authority to make parole determinations for arriving aliens who have passed credible fear interviews, and are awaiting an asylum hearing. Id. In addition to delegating this authority over general parole determination, the Secretary also delegated to ICE the supplemental specific authority to grant parole to arriving aliens due to “urgent humanitarian interest” or “significant public benefit.” 8 C.F.R. § 212.5. Groups whose need for parole constitute urgent humanitarian interest or significant public interest include, but are not limited to, individuals who “have serious medical conditions, where detention would not be appropriate,” and “whose continued detention is not in the public interest.” Directive at ¶ 4.3 (citing 8 C.F.R. § 212.5(b)).
The power of an administrative agency to administer authority granted to it by Congress, such as the INA authority over parole determinations delegated to ICE by the Secretary, “necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974) (explaining that rulemaking power was necessary for an agency to carry out the powers delegated to it by the
35 (Memorandum of Agreement Between USCIS, ICE, and CBP: Coordinating the Concurrent Exercise by USCIS, ICE, and CBP, of the Secretary’s Parole Authority Under INA § 212(d)(s)(A); Homeland Security Act, 6 U.S.C. § 251-98 (transferring authorities exercised exclusively by the former Immigration and Naturalization Service to DHS).
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Secretary of the Interior under an act of Congress). Agencies are empowered by the delegation of authority to promulgate rules and policies that serve as implementing regulations. Id.
1) Plaintiffs’ Claims Arise under the APA. As aforementioned, DHS and ICE (hereinafter “Defendants”) presently both possess parole
authority under the INA, as of the delegation of such authority by the Secretary of DHS to ICE. As ICE must now implement the INA to exercise the parole determination authority it was granted, it is necessary for ICE to develop rules to fill gaps left by Congress in the INA. For example, while the INA grants the authority to release immigrants in custody on parole, it does not dictate the process that should be followed. For that reason, ICE was compelled to produce the Directive to provide guidance to its officials carrying out determinations, and to prevent those determinations from being made arbitrarily or on an ad hoc basis, in violation of the Administrative Procedures Act (“APA”). Morton, 415 U.S. at 232.
The APA, codified under Title Five of the U.S. Code, governs the actions of agencies, as well as the actions of federal executive departments, that delegate rulemaking power to agencies that are components of them. “Agencies,” under the APA, are “each authority of the government of the [U.S.], whether or not it is within or subject to review by another agency,” except for those expressly excluded in the APA’s provisions. 5 U.S.C. § 701. The APA prohibits such acts by agencies from being “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706.
Actions of agencies governed by the APA include the process by which they promulgate rules, after they have been delegated the authority to do so. 5 U.S.C.A. § 553 A “rule” under the APA is defined as “the whole or a part of an agency statement of general or particular
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applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…” 5 U.S.C. § 551.
The Directive satisfies the definition of a rule under the APA. . 5 U.S.C §551(4) et seq. (1946). It is a statement applicable to the particular agency action of making parole determinations that was promulgated by the Defendants – an administrative agency (ICE), and the federal executive department which delegated parole determination power to that agency (DHS). Dep’t of Homeland Sec. Delegation No. 7030.2, “Delegation of Authority to the Assistance Secretary for the Bureau of Immigration and Custom Enforcement” (Nov. 13, 2004); ICE Delegations of Authority to the Directors No. 0001, “Detention and Removal and Investigations to the Field Office Directors, Special Agents in Charge and Certain Other Officers of the Bureau of Immigration and Customs Enforcement,” (Jun. 6, 2003). The Directive was designed to prescribe policy for the implementation of the INA bysetting forth procedures and practice requirements to provide guidance on the future exercise of discretion by agency officials making parole determinations. 5 U.S.C. §551 et seq. (1946). As the Directive in question is a rule pursuant to the meaning under the APA, claims regarding the agency’s actions with respect to the Directive are governed by the APA.
Plaintiffs are likely to succeed on the merits of their claims arising under the APA, as: 1) Plaintiffs validly challenge final agency action, entitling them to judicial review of their claims under the APA; 2) the Directive is a binding agency rule that ICE and DHS are required to adhere to under the Accardi doctrine of the Supreme Court; 3) Plaintiffs are likely to successfully demonstrate the Defendants do not adhere to this binding Directive; and 4) Defendants’ failure and refusal to adhere to the Directive renders their actions arbitrary, capricious, and contrary to law in violation of the APA.
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2) The Directive is binding o nICE and DHS under the Accardi doctrine. The Accardi doctrine established that agencies are required to adhere to their own rules,
including internal agency policies, such as the Directive. U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Morton, 415 U.S. at 200, 235 (requiring an agency to comply with a directive that provides guidance on internal procedures, and holding that the agency’s failure to comply constituted a violation of the APA as “arbitrary” and “capricious”). This remains true, even when procedures set out are potentially more rigorous than required. Id. Adherence by an agency to its rules is particularly significant where the rights of individuals are impacted by agency action and rulemaking. Id. at 235; e.g. Aracely v. Nielsen, 319 F.Supp.3d 110, 149, 157 (D.D.C. 2018) (holding that Defendants must re-evaluate plaintiff’s request for parole in strict compliance with the ICE Directive of 2009, as that Directive impacts individual rights); Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363, 38 (1957); Morton v. Ruiz, 415 U.S. 199, 235 (1974).
Prior to the filing of this motion, this Court already established that the specific Directive in question in Mons and this request is binding written agency policy for the following reasons: a) it impacts individual rights of arriving aliens, b) the boilerplate disclaimer language included in it is not effective, and 3) it imposes constraints on an agency’s previously unfettered discretion over parole grants upon taking effect.
a. The Directive is binding because it impacts rights of arriving aliens. This Court has established that the Directive is binding written agency policy, as it impacts individual rights of arriving aliens, and legal consequences flow from DHS and ICE failure to implement the Directive in making parole determinations. Bennet v. Spear, 520 U.S. 154, 177-78 (1997), Aracely, 319 F.Supp.3d at 150 (2018); Damus, 313 F.Supp.3d at 343. Agency action
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impacts individual rights when rights or obligations of plaintiff’s are determined by those actions, or legal consequences flow from those actions. 5 U.S.C. § 704.
The Directive sets out the definitions, guidance, internal procedures, and standards used to make a determination of parole, as well as the mitigating factors required to deny individuals parole. Directive ¶ 1-9. Freedom of movement is a fundamental personal liberty under the U.S. Constitution. Aptheker v. Sec’y of State, 378 U.S. 500, 505-509 (1964), U.S. Const. amend. V. Thus, the determination of whether Plaintiffs will be granted parole is simultaneously a determination of whether, and to what extent, Plaintiffs will be deprived of a liberty interest prior to their asylum hearings, or if they will instead be able to exercise their right to freedom of movement.
During the COVID-19 virus pandemic, the Directive has even more extensive impact on individual rights of arriving aliens than under circumstances where no public health emergency is present. Until the pandemic is abated, the Directive impacts Plaintiffs’ individual rights to bodily integrity and reasonable safety. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989); see also Youngberg v. Romeo, 457 U.S. 324, 319 (1982). Additionally, while the Directive requires individualized parole determinations for all arriving aliens found to have a credible fear, it separately emphasizes that, for “urgent humanitarian reasons” or “significant public benefit,” such individualized review is made available to individuals who “have serious medical conditions, where continued detention would not be appropriate” and “whose continued detention is not in the public interest.” Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b). Thus, in addition to establishing the right of individualized review of parole eligibility for all arriving aliens with credible fear, the Directive specifically highlights that individuals of vulnerable health also have this right. Since it is established that the Directive is binding, the existence of these rights
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persists despite any attempt by Defendants to disclaim the creation of rights using boilerplate language.
Therefore, as this Court has already established, and Plaintiffs further demonstrate, the Directive impacts individual rights and liberties of Plaintiffs, and is thus binding pursuant to the Accardi doctrine. Aracely v. Nielsen, 319 F.Supp.3d 110, 149, 157 (D.D.C. 2018).
b. The Directive is binding because the boilerplate language it contains is ineffective and does not enable Defendants to evade legal challenges.
Defendants included a disclaimer in the Directive, stating 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.” Directive ¶ 10. In recent prior cases, arriving aliens have argued to this Court that Defendants’ purpose in including this language is to attempt to prevent the Directive from becoming binding, in order to avoid APA claims from being brought against them. See Aracely 319 F.Supp.3d 110; see also Damus, 313 F.Supp.3d at 341–42,.
Nonetheless, this Court has established that an agency cannot use such boilerplate language to evade legal challenges or judicial review under the APA. Aracely, 319 F.Supp.3d at 152; Damus, 313 F.Supp.3d at 337-38; §706(2); 5 U.S.C. § 551. Such language is ineffective and does not enable Defendants to evade legal challenges. Thus, the Directive does, in fact, impact rights of individuals, and remains binding on the DHS and ICE, despite the use of boiler plate disclaimer language.
i. The Directive is binding as it imposes constraints on those agencies’ previously unfettered discretion over parole grants.
In its first paragraph, the Directive contains an explanation that describes its purpose, stating it “provides guidance” on agency officials’ use of their “discretion to consider the parole
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of arriving aliens.” Directive ¶ 1. Though an agency’s discretion over an issue or process may be subject to no, or fewer, limitations prior to the implementation of a relevant rule, once that agency “announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion’.” Lopez v. FAA, 318 F.3d 242, 246–48 (D.D.C. 2003); Damus v. Nielsen, 313 F.Supp.3d at 337–38 (D.D.C. 2018). Since departure from any implemented rule limiting agency discretion results in invalidation of that departing action, rules imposing such constraints on agency discretion are binding upon implementation.
The aforementioned statement explaining the Directive’s purpose effectively announced, in 2009, that the information contained in the Directive would govern the use of discretion in parole determinations by Defendants. While Defendants may not originally have been bound to perform parole determinations pursuant to factors, considerations, and measures such as those set out in the Directive, their discretion to ignore those measure ceased upon the date which the Directive went into effect. Thus, the Directive is binding on Defendants as of January 4, 2009.
3) Defendants persistently refuse to adhere to the binding directive during the COVID-19 pandemic, despite the issuance of a prior order by this Court granting injunctive relief. In September 2019, this Court found Plaintiffs provided sufficient evidence to demonstrate
that Defendants were not following the binding Directive. (Doc. No. 33) . To make that determination, the Court considered statistics demonstrating the abysmal rates of parole grants. Id. These statistics included that in the years immediately following implementation of the Directive, asylum-seekers were granted parole at a rate of ninety percent nationwide, but since 2017 the rates of release on parole dramatically declined, despite confirmation by the DHS and NOLA ICE that
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the Directive was being followed. Id. NOLA ICE was shown to deny parole requests at a rate of 98.5% in 2018 and 100% in 2019, being the lowest release rate in the country. Id.
Additionally, affidavits of arriving aliens supported that numerous individuals who had met all requirements for parole eligibility under the Directive were denied parole, whether they had submitted all required documents or, as occurs many times, had not been given sufficient time to submit documents. Affidavits also evidenced failure to provide parole interviews, failure to provide information regarding rights to and engagement in the parole process, failure to translate or explain the contents of documents or processes to detainees, neglect and inattention to detainees who tried to seek answers, and the regular vocalization of comments assuring that parole would not be granted to detainees in adherence to the Directive.
The Court should again find that Plaintiffs provide sufficient evidence to demonstrate continued failure to follow the binding Directive and provide individualized determinations of flight risk and danger.
a. Parole grant rates continue to be abysmal and a departure from previous application of the Directive, with no rational justification.
Plaintiffs now provide the most recent statistics on the most recent parole grant rates, which still evidence an irrational departure from binding agency policy in the Directive, despite the issuance of the Order providing injunctive relief in September. INS v. Yang, 519 U.S. 26 (1996). Plaintiffs remind the Court that, in 2016, about 75% of parole applications were successful. (Scharf Decl., ¶ 14). In 2018, fewer than 2% of parole applications were granted. Id. At the present time, in March 2020, data reported by Defendants demonstrate that parole rates are as follows: 12% at Atlanta City Detention Center, 30% at Jackson Parish Correctional Center, 32% at Winn, 35% at Richwood, 19% at Basile Detention Center, 34% percent at River, 41% percent at Pine Prairie,
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zero percent at La Salle, zero percent at Catahoula, and zero percent at Allen Parish Correctional Center.
Though rates did appear to begin to grant rise slightly in 2020, statistics demonstrating such increases are missing relevant data. Id. Additionally, the rise that has occurred is still an astounding departure from previous grant rates, with no justification for such decline (as discussed below). Id.
Furthermore, witnesses continue to provide testimony of continued egregious behavior of Defendants in violation of the Directive, despite the injunctive relief and measures ordered by this Court in September 2019. Witness testimony evidences that determinations over parole persistently fail to be individualized.
b. Defendants often deny parole without arriving aliens ever having applied, indicating that they are not conducting individualized determinations as required by the Directive.
Arriving aliens have been denied parole without ever being given information about parole or the opportunity to apply. B.A.E. Decl., ¶ 8 (stating that a denial was given only three days to apply for parole and was denied without ever applying when was not able to meet the deadline); O.M.H. Decl., ¶ 5 (informing that arriving alien was denied parole without having applied for it); S.U.R. Decl., ¶ 7 (explaining that arriving alien was denied parole about three days after passing credible fear interview, without ever having applied for parole); Y.P.T. Decl., ¶ 12 (informing that arriving alien was denied parole before even being given opportunity to apply). At times, it is upon receipt of their denial notice that they learn about parole. Id. Denial has often happened just days after arriving aliens having been found to have credible fear. Id. As the Directive requires individualized determinations of flight risk or danger to be made, Defendants have violated the Directive, since it is impossible to make an individualized determination without having an
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application informing decisionmakers of the particular circumstances of an individual to be considered. Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b).
c. Defendants explicitly state that applying for parole is futile, and parole grants will not be issued.
Arriving aliens are often discouraged from applying for parole by officers who make comments explicitly assuring them of the futility of submitting a parole application. B.A.E. Decl., ¶ 9 (revealing that arriving aliens were told by ICE officials at River that ICE “does not grant parole to anyone in Louisiana”); T.R.O. Decl., ¶ 12 (was told by ICE Officer Silva that “parole is not granted in Louisiana.”); R.P.H. Decl., ¶ 15 (revealing that declarant has been told by ICE agents, on multiple occasions, that she will not be granted parole unless her cancer returns); T.M.F. Decl., ¶ 9 (revealing that declarant was told by an ICE officer not to place hope in parole). Officers have told arriving aliens that they will not be getting parole. Sometimes, they have stated that denials will be given under all circumstances, and other times, they have stated that grants will only be given to certain persons, such as those who have cancer. R.P.H. Decl., ¶ 15 (revealing that declarant has been told by ICE agents, on multiple occasions, that she will not be granted parole unless her cancer returns). Other times, comments have been made such that parole is not granted to anyone at all in Louisiana. B.A.E. Decl., ¶ 9 (revealing that declarant was told by ICE officials at River that ICE does not grant parole to anyone in Louisiana).
These comments further indicate Defendants’ failure to adhere to the Directive, as the only reasons for which a person should be denied parole under the Directives are if, after an individualized review of their request, they are determined to be a flight risk or a danger to the community. § 212.5(b)(5); Directive Par. 6.2, 8.3; Aracely, 319 F.Supp.3d 110 (Jul. 3, 2018). Otherwise, parole should be granted as continued detention is not in the public interest. Id.
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d. Defendants fail to provide a reasonable amount of time for arriving aliens to submit parole applications.
When Defendants do accept parole applications, they do not provide a reasonable amount of time for arriving aliens to submit required documents. B.A.E. Decl., ¶ 8 (explaining that declarant was given only three days to apply for parole and was not able to meet the deadline). In order to apply for parole, an individual must first determine who will serve as their sponsor. S.U.R. Decl., ¶8-9. Then, they must collect several documents to demonstrate their eligibility for parole, and their sponsor’s ability to serve as such. Id. This involves collecting evidence such as identity documents, often from a country individuals have just fled in fear of persecution, tax documents from sponsors, proof of homeownership, utility bills, and letters of support from the sponsor and any other individuals available to attest to the good character of the applicant. Directive Par. 8.38.4; S.U.R. Decl., ¶8-9. In some instances, parole applicants have been given as little as three days to collect these documents and determine where to submit them, with little, if any, guidance from officers. B.A.E. Decl., ¶8 (revealing declarant was given three days to apply for parole and was not able to meet the deadline).
These acts by Defendants confirm they do not have an interest in providing an individualized determination of eligibility for parole. By failing to allow a reasonable amount of time for individuals to submit all required materials, Defendants effectively deprive arriving aliens of the opportunity to sincerely undergo an individualized determination of their eligibility as required by the Directive.
e. Defendants continue to determine flight risk and danger arbitrarily, despite mounting evidence in favor of granting parole.
Denials continue to be issued despite mounting evidence in favor of applicants’ eligibility and satisfaction of all requirements for parole. B.A.E. Decl., ¶9; R.P.H. Decl., ¶15. These denials
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continue to be categorical, and if any notice of denial is provided, at all such notice does not explain how the applicant falls into the category for which they were denied, usually “flight risk.” This action by Defendants indicates that such determinations are made arbitrarily and without reasoning based on particular facts of applicants’ circumstances and cases. B.A.E. Decl., ¶9 (informing that the parole applicant was denied parole for alleged “flight risk” despite submitting all required evidence to the contrary and received no further explanation); R.P.H. Decl., ¶15 (explaining that applicant is eligible for parole and has applied four times, but was denied repeatedly, three times for “flight risk” despite having extensive family in Florida to sponsor her, and the last for “lack of additional documents.”).
Many denied applicants have sponsors who are U.S. citizens, and who provide all necessary evidence of citizenship, can attest to the arriving alien’s good character, and have a close relationship, willingness, and ability to support them. B.A.E. Decl., ¶9 (explaining that arriving alien was denied as a “flight risk” even though her husband, who was released on parole in another region and is making an asylum claim under the same facts as this arriving alien, has same parole sponsor, who is a U.S. citizen cousin who lives in Tampa, Florida, and has presented evidence in support of the arriving alien’s request for parole numerous times, including copies of their 2018 tax returns, evidence of U.S. citizenship, copies of bills, additional letters of support, documentation of arriving alien’s clean criminal history, and a copy of arriving alien’s birth certificate); R.P.H. Decl., ¶15 (stating that although eligible for parole and having applied four times, arriving alien has been denied repeatedly, the first three times for “flight risk” despite having extensive family in Florida to sponsor her, and the final time for “lack of additional documents.”); K.S.R. Decl., ¶7 (explaining that their sponsor is a U.S. citizen); O.M.H. Decl., ¶11 (explaining that their sponsor is a U.S. citizen); S.U.R. Decl., ¶8 (explaining that their sponsor is a U.S. citizen);
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T.M.F. Decl., ¶23 (explaining that their sponsor is a U.S. citizen); L.P.C. Decl., ¶11 (explaining that their sponsor is a U.S. citizen).
Many others have sponsors who are lawful permanent residents in the U.S., willing to take responsibility for them, but are denied, nonetheless. Y.P.T. Decl., ¶28 (explaining that their sponsor is a lawful permanent resident). While not absolutely dispositive of an arriving alien’s merit of release on parole under an individualized review, the fact that grants of parole have been made in different regions for persons whose asylum cases stem from the same set of facts as those in a denied class member’s case suggests that individualized review has not occurred before denial. K.S.R. Decl., ¶7 (has same sponsor as husband, and same set of facts leading to her request for asylum yet was denied parole though her husband was granted parole in a different region).
After receiving submissions of parole applications, Defendants sometimes fail to conduct parole interviews. S.U.R. Decl., ¶8-10 (explaining declarant was never provided a parole interview or a response on their application despite having their attorney prepare a parole application on their and their U.S. citizen sponsor’s behalves, despite submitting all required documentation). The failure to conduct parole interviews after receiving submissions, while still issuing denials despite having received mounting evidence of eligibility, demonstrates that Defendants decisions to deny are made arbitrarily and irrationally. In the face of mounting evidence of eligibility, it would only be rational for Defendants to seek clarification of any facts that may indicate ineligibility through a parole interview. Thus, failure to conduct such interviews indicate that Defendants are not interested in assessing the particular circumstances of each person’s individual case and are predisposed to deny regardless of any evidence provided by arriving aliens.
Often, arriving aliens commonly receive no notice at all informing them why they were denied, let alone the insufficient notice described above. S.U.R. Decl., ¶8-10 (was never provided
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a response on their application despite having their attorney prepare a parole application on their behalf, having a U.S. citizen sponsor, and having submitted all required documentation).
Officials at the detention centers have sometimes refused to accept applications requesting parole at all. T.R.O. Decl., ¶11-12 (describing that, despite many attempts to request parole, ICE officers refused to accept parole application, and individual was told that she would have to wait until her court date); O.M.H. Decl., ¶9 (explaining that ICE officers stopped visiting detainees and refused to accept parole requests or provide information despite being asked). Such actions are evidently contrary to the individualized determination requirement in the Directive.
f. Defendants disregard the vulnerability of individuals with medical issues and ignore provisions that parole of such persons is justified.
The Directive contains provisions in favor of granting parole to class members who “have serious medical conditions, where continued detention would not be appropriate,” and “whose continued detention is not in the public interest.” Directive at ¶4.4 (citing 8 C.F.R. § 212.5(b)). Defendants disregard those provisions by continuously keeping individuals with underlying health conditions in detention, and even more extensively violate those provisions during the COVID-19 pandemic, due to those individuals’ particular vulnerability. Numerous individuals with underlying health conditions and serious medical concerns remain in detention and have been denied parole, including those with asthma, diabetes, lupus, H1N1, HIV, hepatitis, cancer and others. K.S.R. Decl., ¶9 (tested positive for H1N1, but denied parole nonetheless); L.P.C. Decl., ¶22 (individuals who she has witnessed remain in detention without parole include those who suffer from asthma, diabetes, cancer, and lupus); Y.P.T. Decl., ¶19-26, 28 (denied four times despite satisfying all requirements, providing all necessary evidence, and now being confined in a wheelchair due to the neglect of the government to an injury he sustained). Such continued detention is in direct violation of the aforementioned provisions of the Directive. O.M.H. Decl.,
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¶1,5 (explaining declarant was denied parole without ever having applied, despite being positive for HIV and Hepatitis C).
4) Plaintiffs’ claims validly challenge final agency action, entitling them to judicial review of those claims under the APA. As the claims brought by Plaintiffs’ challenge final agency action, Plaintiffs are entitled to
judicial review of those claims. 5 U.S.C. § 704. The APA grants the authority to bring legal action, including writs of prohibitory or mandatory injunction, in a court of competent jurisdiction, as the Plaintiffs have done in Mons. 5 U.S.C. § 704. Persons suffering legal wrongs because of agency action, or adversely affected or aggrieved by agency action are entitled to judicial review thereof if the actions in question: 1) impact plaintiffs’ rights, and 2) are final agency actions. 5 U.S.C. § 704; See Aracely v. Nielsen, 319 F.Supp.3d 110, 138-139 (D.D.C. 2018); see also Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
In order to be reviewable as a final action, the agency action at issue does not need to be in writing. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.D.C. 2008) (entertaining an APA challenge to the agency's “decision ... to adopt [an unwritten] policy of disclosing confidential information without notice” because such a policy is “surely a consummation of the agency's decision making process” and it impacted the plaintiff's rights); R.I.L–R v. , 80 F.Supp.3d 164, 184 (holding that ICE's deterrence policy is a final agency action subject to APA review, despite the lack of a writing memorializing the policy).
This Court has established that routine and systematic failure to adhere to the statutory directives requiring factors to be considered in making custody determinations by agencies such as ICE constitutes final agency action under the APA, and is thus subject to judicial review by a court. Ramirez v. U.S. Customs & Enf’t, 310 F.Supp.3d 7, 8 (D.D.C. 2018) (holding that ICE’s
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failure to adhere to directive constituted final agency action subject to judicial review under the APA).
As in Ramirez, Plaintiffs challenge the routine and systematic failure of Defendants to adhere to the Directive, which serves to implement parole procedures under the INA. Action being challenged by Plaintiffs also similarly includes Defendants’ failure to follow the Directive’s instructions to provide individualized review when making custody determinations regarding whether to grant parole, as required by the INA. See Compl., ¶133-137. As such actions by agencies like ICE have been established by this Court to constitute final agency action, Plaintiffs validly challenge Defendants’ actions under the APA and are entitled to judicial review of their claims.
5) Defendants’ refusal to adhere to the Directive renders their actions arbitrary and capricious under the INA, requiring their actions to be overturned under the APA. The APA presents grounds that authorize and require a reviewing court to overturn agency
action as being in violation of its provisions. These grounds include agency action being 1) arbitrary and capricious, and 2) contrary to law. 5 USC § 706.
a. Defendants’ actions are arbitrary and capricious under the APA. Agency actions may be arbitrary and capricious under the APA when they do not comply with binding internal policies governing the rights of individuals. 5 U.S.C. § 706(2)(A); see Morton v. Ruiz, 415 U.S. 199, 204-06 (1974); Aracely, 319 F.Supp.3d at 150. The Supreme Court has established that the APA was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to ascertained and established procedures, such as the Directive. This requirement set out by the APA serves to ensure agency rules are not applied in an ad hoc manner, as unpublished ad hoc determinations are inherently arbitrary in nature. Morton, 415 U.S. at 232.
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In INS v. Yang, 519 U.S. 26 (1996), the Supreme Court held that an irrational departure from policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary [or] capricious,” within the meaning of the APA, 5 U.S.C. § 706(2)(A). In contrast to the behavior of defendants in Yang, Defendants in Mons are not merely narrowing or expanding a definition, but instead entirely disregarding a binding directive requiring the provision by the agency of an individualized determination of eligibility. Yang, 519 U.S. at 32 (finding that taking a narrow view of what constitutes a term in a statute where no definition was provided by that statute, while still adhering to the provision containing the term, does not violate the APA).
The issue with Defendants’ actions in Mons is not whether Defendant agencies can elaborate what constitutes a flight risk or danger where there is no definition provided under the INA. Instead, the issue consists of Defendants’ failure to conduct individualized determinations to Plaintiffs as required by the INA, as demonstrated by their failure to provide any reasoning as to why they consistently conclude that each of the individuals, in the vast majority of applicants denied parole by Defendants, present a flight risk or danger.36
This Court explained that it found Defendants offered “absolutely no explanation for the precipitous nosedive in the parole-grant rates issued by an Office that has allegedly preserved the same underlying policy for making those decisions all along.” See Mons, No. 19-1593 JEB, 2019 WL 4225322 at 21. Approximately seven months later, Defendants still have not offered an explanation for continued abysmal parole-grant rates and persistent departure from the Directive.
36 Class members report that ICE officers merely check a box next to select a category, such as “flight risk” or “danger” and provide no further explanation or rational for how they determined that individuals fall under such categories, based on the facts specific to their situation or application for parole. S.U.R. Decl., ¶ 8-10; R.P.H. Decl., ¶ 15; B.A.E. Decl., ¶ 9.
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Nor have Defendants made an avowed alteration of the Directive. As no explanation has been provided, no avowed alteration has occurred, and no lawful or valid explanation is readily apparent, Defendants actions constitute an irrational departure from binding agency policy. Thus, their actions are arbitrary and capricious under the APA.
b. Defendants’ actions are contrary to law, as they violate the INA. As set forth in the INA, parole applications are to be granted on a “case-by-case” basis for “urgent humanitarian reasons or significant public benefit,” provided the aliens present neither a security risk nor a risk of absconding. INA § 212(d)(5)(A). While the act does not provide definitions of “urgent humanitarian reasons” or “significant public interest,” it does provide examples of what would be considered to constitute such terms. Id. These examples are not an exhaustive list. Id. Instead, these are groups of persons highlighted as specifically justifiable. Id. The INA further establishes this list as a floor, not a ceiling, as it states that all other arriving aliens may also be granted parole, so long as they meet initial eligibility conditions, are provided with an individualized review, and are not concluded to be risk of flight or danger as a result of that individual review. 8 C.F.R. 212.5(c)-(d). The practice of providing notice in the form of a “check” indicating a category for denial with no further explanation indicates that individualization on a “case-by-case” of review has not occurred, as required by the INA. 8 C.F.R. § 212.5. Additionally, as discussed earlier in this motion, Defendants persistently engage in other actions that demonstrate failure to provide individualized determinations in violation of the INA, such as denying Parole toarriving aliens who have not applied, explicitly stating that applying for parole is futile as no parole grants will be issued, failing to provide a reasonable amount of time for arriving aliens to submit documents to be evaluated, and failing to conduct parole interviews prior to denial of parole applications.
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S.U.R. Decl., ¶7-10; B.A.E. Decl., ¶8-9; T.R.O. Decl., ¶12; R.P.H. Decl., ¶15; O.M.H. Decl., ¶5; Y.P.T. Decl., ¶12. These actions impede the receipt of facts, without which no individualized determination can occur, demonstrating Defendants’ lack of intent to consider the individual facts of arriving aliens’ cases, in violation of the INA. Id; 8 C.F.R. § 212.5.
Furthermore, as the Directive provides binding agency policy on the technical details and implementation of parole, about which Congress provided no guidance, it is the authority for parole procedures, where the INA has not set forth or elaborated on. 5 U.S.C.A. § 553. Thus, since the Directive provides the authority for parole implementation under the INA, Defendants inherently violate the INA when it does not abide by the Directive. Bennet v. Spear, 520 U.S. 154, 177-78 (1997), Aracely, 319 F.Supp.3d at 150 (2018); Damus, 313 F.Supp.3d at 343.
For these reasons, Defendants’ actions are likely to be found arbitrary, capricious, and contrary to law under the APA, and Plaintiffs are likely to succeed on the merits of their claims.
B. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction. In order to establish irreparable harm, the moving party must show that the injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). The injury must also be “both certain and great; it must be actual and not theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id. In its earlier holding, this Court noted that: “[l]ike the plaintiffs in Damus, Plaintiffs here have established that they will suffer irreparable harm without injunctive relief.” As the Court there noted, detention irreparably harms individuals “in myriad ways,” and the injuries at stake
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there and here are “beyond remediation.” 313 F. Supp. 3d at 342. Mons 2019 WL 4225322, at *11. The Court recognized that Defendants’ non-compliance with the Directive subjected asylumseekers to prolonged detention and suffering. Id. The COVID-19 pandemic is not theoretical; it is a very real, deadly threat to the physical well-being of Plaintiffs. Should COVID-19 strike NOLA ICE’s detention facilities, most Plaintiffs will suffer irreparable harm beyond remediation. As Professor Scharf concludes:
“[d]espite explicit guidelines and standards mandating proactive efforts to reduce disease in the facilities, [] ICE has failed to respond to obvious warnings, risk factors and direct information to reduced the risks of COVID-19 posed to people detained in their custody. The risks of irreparable harm posed to these individuals, including the more probable than not consequence of long-term illness and death, is in my opinion substantial and avoidable if appropriate release mechanisms are adopted in a rapid timeframe.” Scharf Exp. Decl., Summary Opinion.
1) Plaintiffs Will Become Infected with COVID-19 if They Remain in Detention. Plaintiffs have presented evidence showing that they are suffering or will suffer irreparable
harm absent this Court’s intervention. They have shown that ICE continues to deprive them of “the protections of the ICE Directive. . . . instead, they are subject to a de facto ‘no-parole’ reality, under which detention has become the default option . . . being deprived of the safeguards of the Directive harms putative class members in a myriad ways.” Damus at 342. NOLA ICE’s reluctance to abide by the principles of the Directive and this Court’s Order, demonstrated by the continued paucity of parole grants, has left hundreds of asylum-seeking class members trapped in detention facilities that are simply ill equipped to protect them from the irreparable harm that COVID-19 will wreak upon them.
Without injunctive relief, present and future class members are likely to become infected with COVID-19. Plaintiffs’ experts warn that “[i]mmigration detention centers in the United States are tinderboxes for the transmission of highly transmissible infectious pathogens including the
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SARS-CoV-2, which causes the Coronavirus Disease (COVID-19).” Franco-Paredes Exp. Decl. ¶15. “Given the large population density of immigration detention centers, and the ease of transmission of this viral pathogen, the attack rate inside these centers may reach exponential proportions consuming significant medical care and financial resources.” Id. In addition, these detention centers “are often unhygienic environments” exacerbating the propagation of COVID19. Scharf Exp. Decl. ¶18 at (a)(i).
Class members relate harrowing conditions that will make the spread of COVID-19 among these detained asylum-seekers inevitable: Plaintiffs are housed in dorms with as many 100 men, forced to share four toilets, four sinks, and five showers in a shared room. O.M.H. Decl. ¶10. At Adams, some are housed in dorms holding up to 240 men , who are forced to share six toilets, twelve sinks, and one shower room with twelve showerheads in close proximity. S.U.R. Decl. ¶13. At South Louisiana, as many as 72 women are housed in a single dorm with beds less than two feet apart from one another, and forced to share three toilets, three sinks, and six phones, none of which are ever properly sanitized. K.S.R. Decl. ¶15; L.P.C. ¶14,16. These women also report that they are not provided sufficient toilet paper and had no toilet paper for nearly a week in March 2020. Id. At LaSalle some Plaintiffs’ class members are housed in dorms with more than 90 men, who are forced to share have five toilets, eight sinks and one shower room with five showerheads. T.M.F. Decl. ¶14. In these environments, Plaintiffs’ cannot practice proper social distancing or hygiene, the only known methods to stem the rapid spread of COVID-19. Franco-Paredes Exp. Decl. ¶11,12. See also Scharf Exp. Decl. ¶ 24.
The facts are stark and frightening. Given the high population density of these facilities and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, that is shedding the virus enters a facility. Franco-
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Paredes Exp. Decl. ¶20. Plaintiffs describe residing in a petri dish-like environment. Experts agree that given the poor conditions present in the immigration detention facilities in Louisiana and Mississippi, and high population density (exacerbated by Defendants’ refusal to comply with the Directive), the spread of COVID-19 is inevitable.
2) Plaintiffs Will Likely Become Ill and/or Die from Infection if They Remain in Detention. Plaintiffs here have established that they will suffer irreparable harm without injunctive relief. As this Court previously recognized, detention irreparably harms individuals “in myriad ways,” and the injuries suffered by asylum-seeking Plaintiffs from prolonged detention are “beyond remediation.” Mons 2019 WL 4225322, at *11. In requiring Defendants to comply with the Directive, this Court acknowledged the physical and mental harm caused by prolonged detention on Plaintiff’s well-being. Plaintiffs now come before this Court again, to ask for their lives. For as long as NOLA ICE officials continue to defy the regulations and procedures of the Directive, many, if not most, asylum-seekers who remain in detention during a COVID-19 outbreak will suffer irreparable harm from this disease, if not death. The Directive recognizes that “aliens who have serious medical conditions” should be paroled. Directive ¶ 4.3. Many class members suffer from serious medical conditions that render them vulnerable under normal conditions of confinement but will likely result in their death, should they be exposed to COVID-19. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.37 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent. Franco-Paredes Exp. Decl. ¶ 26.
37 Id at ¶ 4.
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There is little doubt that, should any of the detention facilities that house Plaintiffs suffer a COVID-19 outbreak, Plaintiffs will suffer irreparable harm. Given the fast spread of this unprecedented disease, Plaintiffs’ risk of injury is imminent and certain. As such, the injuries caused by the Defendants’ continued non-compliance with the Directive are “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy, 454 F.3d at 297 (internal quotation marks and citation omitted).
3) Current Protocols of ICE to Address COVID-19 Do Not Address, and Instead Worsen and Increase Likelihood of, Infection and/or Death from COVID-19. As this Court recognized, Plaintiffs have already experienced unspeakable trauma in their
home countries and journies to the United States. Plaintiffs’ injuries from a COVID-19 outbreak would sure be “beyond remediation.” Plaintiffs do not seek monetary compensation for their injuries. Rather, they seek injunctive and declaratory relief that requires NOLA ICE to immediately provide individualized parole assessment to all present and future class members, and to comply with all of the Directive’s regulations and procedures, including those that recognize the need to parole persons with serious medical issues, and those whose release would benefit the public interest.
According to experts, risk mitigation is the only known strategy that can protect vulnerable groups from COVID-19, and release of vulnerable detainees from custody is the best mitigation strategy. Franco-Paredes Exp. Decl. ¶¶ 27-28. See also Scharf Exp. Decl. ¶¶ 18, 34. Dr. Peter Scharf has concluded “[t]he reality that this region’s ICE facilities are located in remote or rural areas with limited resources and that medical resources proximate to the relevant ICE detention facilities leads to the conclusion that, were a COVID-19 infection to occur, widespread, long-term morbidity and mortality are more probable than not.” Id. at ¶ 34. Because ICE protocols are insufficient to protect Plaintiffs from the specter of grave illness and death, Plaintiffs urge this
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Court to require Defendants to fully comply with the Directive, and immediately give all present and future Plaintiffs fair, individualized parole reviews.
C. The Balance of Harms and the Public Interest Both Favor Injunctive Relief. In 2018, this Court established that issuance of injunctive relief is in the public interest, when the same Defendants present in Mons failed to comply with the same Directive presently at issue. Aracely v. Nielsen, 319 F.Supp.3d 110 (Jul. 3, 2018) (holding that granting injunctive relief is in the public interest where the government and its agencies have failed to comply with the Directive). While the INA issuing the authority to make parole determinations does not elaborate on the meaning of the term “public interest” within its provisions, ICE has permissibly, under the APA, elaborated on its meaning through the promulgation of a guide for implementation of the INA, in order to “fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974); 8 C.F.R. § 212.5. The Directive mandates that an alien’s “continued detention is not in the public interest.” Directive ¶ 6.2. It states the public interest is met when an arriving alien is paroled who is found to have a credible fear of persecution, 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, and presents no additional factors that weigh against release. § 212.5(b)(5); Directive Par. 6.2, 8.3; Aracely, 319 F.Supp.3d 110 (Jul. 3, 2018). In other words, the Directive establishes that, once these requirements are met, an individual should be released on parole “on the basis that his or her continued detention is not in the public interest.” Id.38
38 This Court has established that, “[t]he public interest is served when administrative agencies comply with their obligations under the APA.” R.I.L–R, 80 F.Supp.3d at 191 (citing N. Mariana
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Defendants consistently disregard the public interest by refusing to apply the binding Directive, pursuant to the APA, as they fail to release individuals who evidently meet the aforementioned requirements, without providing any justification or explanation as to why those individuals fall into categories meriting denial despite their obvious eligibility and satisfaction of all requirements. This action by Defendants results in the “continued detention” the Directive explicitly sets out as not being in the public interest. Directive ¶ 6.2, 8.3; see Aracely, 319 F.Supp.3d 110 (Jul. 3, 2018).
Most notably, among those consistently denied in violation of the Directive, and thus in violation of the public interest, are individuals who have serious medical conditions, where continued detention would not be appropriate.” Directive at ¶ 4.4 (citing 8 C.F.R. § 212.5(b)). While Defendants’ non-compliance violates this particular provision on a regular basis, the extent of Defendants’ violation is even greater during the COVID-19 pandemic, as the heightened vulnerability of those individuals makes their continued detention even more inappropriate at this time.
This court has established that the public interest “surely does not cut in favor of permitting an agency to fail to comply with its own binding policies impacting the rights of individuals.” See Jacksonville Port Auth. v. Adams, 556 F.2d 52, 58–59 (D.C. Cir. 1977) (recognizing that “there is an overriding public interest ... in the general importance of an agency's faithful adherence to its statutory mandate”). Furthermore, Plaintiffs find no harm that could result from this Court requiring Defendants to comport with existing regulations that require an orderly process for granting freedom to asylum-seekers meriting such. Therefore, in order to
Islands v. United States, 686 F.Supp.2d 7, 21 (D.D.C. 2009)); Klayman v. Obama, 957 F.Supp.2d 1, 43 (D.D.C. 2013)); Damus, 313 F.Supp.3d at 341–42, 2018 WL 3232515.
48

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serve the public interest, and to prevent this non-compliance that is harmful to and violative of individual rights and the public interest during the COVID-19 pandemic, a grant of the injunctive relief requested is necessary.
CONCLUSION For the foregoing reasons, Plaintiffs’ emergency motion for a preliminary injunction should be GRANTED.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org
Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Attorneys for Plaintiffs

49

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CERTIFICATE OF SERVICE I hereby certify that, on March 31, 2020, I electronically filed the attached MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

50

Case 1:19-cv-01593-JEB Document 61-2 Filed 03/31/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Ángel Alejandro HEREDIA MONS, et al., on behalf of )

themselves and others similarly situated,

)

Plaintiffs,

)

)

v.

)

CHAD WOLF, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,

) ) Civil Action No ) 19-cv-1593 (JEB) )

Defendants.

)

)

)

)

[PROPOSED] ORDER

For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that:
1. Plaintiffs’ Motion for a Preliminary Injunction is GRANTED; 2. Due to the likelihood of irreparable harm to Plaintiffs’ well-being and safety presented by the COVID-19 virus, Defendants are hereby ORDERED to immediately conduct individualized parole assessments for all present and future members of the provisional class, as defined by this Court in Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322 (D.D.C. Sept. 5, 2019). 3. Defendants are hereby ENJOINED from denying parole to any provisional class members absent an individualized determination that such provisional class member presents a flight risk or a danger to the community, as concluded pursuant only tothe parole process and limits on use of discretion provided in Enforcement, Directive No. 11002.1, Parole of Arriving Aliens

Case 1:19-cv-01593-JEB Document 61-2 Filed 03/31/20 Page 2 of 3
Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) (hereinafter “Parole Directive”);
4. The individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class member’s case, and shall not be based on categorical criteria applicable to all provisional class members;
5. Defendants shall provide provisional class members with parole determinations that conform to all substantive and procedural requirements of the Parole Directive.
6. Given the dangers posed by the COVID-19 pandemic, Defendants shall also particularly ensure compliance with the parole standards pertaining to class members who 1) have serious medical conditions, and 2) whose continued detention is not in the public interest, pursuant to the INA and its implementing regulations.
7. Defendants shall commence the individualized parole assessments of all class members as soon as possible, but not more than five days from the issuance of this Order.
8. Defendants shall complete all individualized assessments of parole eligibility for class members not later than fourteen days after issuance of this Order;
9. Defendants shall provide individualized assessments of parole eligibility to future class members, upon first arrival to any of the detention facilities in the NOLA ICE region;
10. Defendants shall inform Plaintiffs’, through written notice, of the reasons for any resulting denial of parole after determination made pursuant to the Parole Directive;
11. From the issuance of this Order, notice provided to any provisional class member informing of reasons for denial shall contain, in writing, explanations with specificity to the particular facts of the provisional class member’s case;

Case 1:19-cv-01593-JEB Document 61-2 Filed 03/31/20 Page 3 of 3

12. Such notice shall additionally include a fact specific explanation of the reasoning by which individualized assessment of provisional class member’s case pursuant to the Parole Directive led to the conclusion that the individual did not merit a grant, despite the dangers presented by COVID-19;
13. No provision of this order shall be construed or implemented in a manner that would cause delay of provisional class members’ grant and release on parole; such implementation or construction will not justify delay.
14. Defendants shall provide a status report to the Court and Plaintiffs that is similar in content to the monthly reports Defendants file with the Court.

IT IS SO ORDERED Date:

_______________________ JAMES E. BOASBERG United States District Judge

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 1 of 6
EXHIBIT
1

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF B.A.E.

I, B.A.E., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My initials are B.A.E. and I am a Cameroonian national detained at the LaSalle Detention Facility (“LaSalle”) in Jena, Louisiana. I speak English fluently.
Synopsis of Past Persecution

2. I am fleeing death and torture in Cameroon as a wanted man due to false accusations of being a member of a separatist group against the current regime.
3. I was the victim of several physical assaults at the hands of Cameroonian force officers of the current regime between 2017 and 2018. I was later imprisoned, tortured, and starved for five months in late 2018, until I was released in or about January 2019.
4. Due to my prolonged incarceration and mistreatment in Cameroon, I was in need of medical attention, but was only able to access traditional healers in nearby villages. Meanwhile, the government once again ordered my immediate arrest on suspicion of being a separatist. Since I fled the country, I have been accused of having escaped prison as a

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 3 of 6
fugitive, when in fact I was released with the consent of the Attorney General after having paid a bond. At this point, I knew that any person accused of being separatist would be tortured or killed in detention or transferred to Yaounde for assassination at the maximumsecurity prison. These instructions were clear from the president and were covered by media internationally. Journey to the United States
5. On or about May 29, 2019, I escaped Cameroon to save my life and flew to Quito, Ecuador. I left my fiancée in Cameroon, who due to all the distress, went into labor early and gave birth to our son prematurely. I was unable to get any help in Ecuador and decided to travel to the United States (US) to request asylum. I travelled through Colombia, and central America until finally arriving to Tapachula, Mexico several weeks later. This included a terrifying trek through the Darien Gap jungle, where I saw corpses of other asylum seekers including minors and feared for my life.
6. In Tapachula, I was transferred to a detention center in Tuxpan by Mexican authorities. After my release on or about October 3, 2019, I made my way to the US-Mexico border.
Frustration of Access to Parole
7. On or about November 1, 2019, I was processed by border authorities at a port of entry in Texas where I formally requested asylum. I was soon transferred to the custody of Immigration and Customs Enforcement (ICE) at the Rio Grande Detention Center in Laredo, Texas. I was then transferred to the Tallahatchie County Correctional Facility (Tallahatchie) in Mississippi.
8. While detained at Tallahatchie, I had my credible fear interview and was shortly given a positive credible fear finding. I was only given three days to apply for parole and was not

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 4 of 6
able to meet this deadline. ICE gave me a parole denial letter before I submitted any application for parole. The letter checked off a box indicating that I was denied because ICE determined I was a flight risk. It did not offer any analysis or explanation as to how ICE came to this conclusion. 9. I was then transferred to the River Correctional Facility in Ferriday, Louisiana in or about November 2019. I applied for parole, but quickly realized that ICE does not grant parole in Louisiana. There officers directly told me that they do not grant parole to anyone. Nevertheless, I applied. An attorney helped me put together a strong request packet, including evidence that my US-citizen cousin living in Maryland is willing to serve as my sponsor and support me upon my release, but my application was refused. I was then transferred to LaSalle on or about the January 27, 2020 where I filed another request for parole. My application was promptly denied, once again checking off the “flight risk” box, despite all the evidence I submitted to the contrary. No explanation was provided. Conditions of Confinement
10. During the long transportation from Laredo, Texas to Tallahatchie in Mississippi, we were handcuffed and shackled by our legs and waist. This was painful. When I arrived to Tallahatchie, I was shocked to realize that it is a criminal prison. There are US citizens incarcerated on one side and immigrants on another side.
11. A few weeks ago, I got sick. I asked to be tested for coronavirus, but they told me they can only test for fever. I have a muscle injury in my chest, and I have a wound in my throat and irritation. I see clots of blood when I cough. I see blood in my feces. I was told that it was not the flu. I do not know if it is due to coronavirus and ICE refuses to test me even though I have a constant fever. The doctors told me that everything was fine and did not perform

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 5 of 6
any tests. They gave me syrup and salt and ibuprofen. It hasn’t helped. Despite my symptoms, I was sent back to my crowded dorm. 12. In recent days, ICE came to talk to our dorm after people panicked over coronavirus. I asked them if they will continue to transfer more people to this facility despite the risk it poses to our health and they said, “Of course, we will. We will receive more people and court is still happening.” They did not come with a medical practitioner and they did not provide us education or talk to us about precautions. There is no toilet paper in my dorm currently and there has been a quarantine of one of the other dorms. 13. Recently, in Owl Charlie dorm, there were some asylum seekers who refused food in protest of these conditions and the looming threat of coronavirus. The officers entered the dorm in riot gear and sprayed tear gas at them. As a result, someone fainted and was taken to the hospital. 14. When I saw the medical staff at LaSalle recently, a man told me that he has never seen anyone leave this place. I am deeply worried and afraid because I hear on the news that Louisiana is the place where coronavirus is the fastest growing in the world. I am very disturbed by the fact that ICE refuses to take any precautionary measures to protect us from the spread of the coronavirus. Plans if Released on Parole
15. As soon as I am released, I plan to self-quarantine in my cousin’s home in Maryland. He is a financially secure U.S. citizen and he is more than willing to help seek out medical care and legal representation so that I can continue fighting my asylum case before the nondetained court. He will also ensure that I am able to attend all my future court hearings. I am desperate to leave this place, where I am afraid that I will be left to die.

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 6 of 6

VERIFICATION

I, B

A

E

am the individual referred to as B.A.E. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

____________________________________________ Victoria Mesa-Estrada, Esq.
On behalf of witness Benedict Agborotoh Eyong

Date: March 28, 2020

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 1 of 9
EXHIBIT
2

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF K.S.R.

I, K.S.R., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I was born in Holguin, Cuba. I am a 27-year-old asylum seeker detained at the South Louisiana Correctional Facility in Basile, Louisiana (“S. Louisiana”). I am a native Spanish speaker and I do not speak English.
Synopsis of Past Persecution

2. In Cuba my husband ran a secret internet computer service. He provided access to United States (US) television programs and news sources against the Cuban dictatorship to local community members. He was found out, arrested and abused by Cuban police. He fled Cuba as soon as he was released and able to leave. Not long after he left, I was forcibly dragged by authorities to jail in Cuba, where I was also mistreated.
3. Other than this politically motivated arrest, I have no criminal history or record. As soon as I was released, I fled the island and sought to reunify with my husband so that we could

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 3 of 9
seek asylum in the US as political dissidents because we feared for our lives and safety. I flew to Uruguay in or about July 2018. My husband and I were reunified. Journey to the United States
4. The journey from Uruguay to Mexico was long and treacherous, including paths through a deadly jungle across several countries. We finally made it to the US - Mexico border in or about July 2019. I was informed by Mexican authorities that we would be assigned numbers by US authorities and forced to wait in Mexico until our numbers were called.
5. After months of waiting and scraping by in Mexico, my husband and I were processed through a port of entry on or about October 1, 2019. US border authorities took us into custody and immediately separated us. I was then transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original governmentissued photo-identity documents from Cuba.
Frustration of Access to Parole
6. On or about October 11, 2019, I was provided a credible fear interview. On or about November 3, 2019, I was transferred to S. Louisiana. On or about December 3, 2019, I received my positive credible fear finding. Meanwhile, on or about November 27, 2019, my husband was granted parole from a facility in a different region. He was released to live in Tampa, FL, where he continues to reside with our sponsor.
7. On or about December 3, 2019, an ICE officer gave me the parole advisal in English and told me that I had until December 7, 2019 to turn in all my evidence in support of a parole application. I immediately requested two additional days to present all evidence as I knew I would not receive all my supporting documents on time. I turned my parole application in on or about December 9, 2019. I was not provided an interview. On or about December

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 4 of 9
17, 209, I was provided a parole denial letter in English with a box checked off indicating I was a flight risk. I was given no other information. I noticed that the denial letter was marked as denied on December 3, 2019, the same day I was given the parole advisal. 8. Since then, I have applied for a redetermination of my parole request approximately three times, each time providing additional evidence. All my efforts have failed. My proposed sponsor is the same person who served as my husband’s sponsor. He is my US citizen cousin who lives in Tampa, FL. I have presented to ICE the following evidence: of my cousin’s 2018 tax returns, evidence of his US citizenship, copies of his bills, additional letters of support from family and friends residing lawfully in the US, documentation of my clean criminal history, and a copy of my birth certificate. However, ICE refuses to release me, continuing to provide denial letters checking off the “flight risk” rationale without further explanation. I have been separated from my husband for about five months. 9. Here, Deportation Officers (DOs) provide us misinformation or conflicting information when they visit the dorms. Sometimes they tell us no one will be granted parole. Sometimes they tell us our requests will be denied if the sponsor is not an immediate relative. Other times they tell us the requests will be denied if the proposed sponsor does not make more than seventy-thousand dollars ($70,000) annually. Conditions of Confinement
10. The conditions in this facility are terrible. Water constantly drips from the walls in my dorm and my bed sheets always wet. The food we are provided is often frozen and always undercooked. It is also lacking in nutrition and frequently gives us all diarrhea. We are mistreated by GEO officers, humiliated and yelled at like we are violent prisoners.

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 5 of 9
11. On or about March 3, 2020 I grew very ill. I had a high fever, vomiting, and coughing. I was taken to the medical unit and tested for influenza. I tested positive for H1N1. I was placed in isolation, in a small room within the medical unit. I was then left in that room for approximately eight hours without any medicine to reduce my high fever, from about 1PM to about 9PM, at which time they gave me Tylenol.
12. The staff did not tell me how long I would be kept in isolation. The six days I spent in that room were some of the worst of my life. I struggled with suicidal ideation. The door to the room was largely a clear glass window. The shower in the room directly faced the window and there was no curtain. Staff and officers saw me naked when I attempted to bathe. I was not provided any soap or shampoo to clean myself. I was not provided clean clothes.
13. I was suffering cold sweats from the fever. I was very cold all the time, especially at night. I begged for another sheet to cover myself. They refused to bring me one. I did not receive medical attention in that room. The only medicine I was given was Tylenol to reduce fever and this did not happen regularly or even daily. There were times they forgot to feed me. I would get so hungry that I would wait hours in front of the glass door trying to get someone’s attention and plead with them to notify the officers that I had not been fed.
14. After six days of isolation, I was transferred to a dorm with five other women who had also tested positive for H1N1 influenza. On the thirteenth day, they transferred me to a regular dorm with about fifty-one (51) other women. Here in the dorm we do not have disinfectant, bleach or sanitizer. They barely provide us soap. The only soap we are given is four-ounce (4 oz) bottles of liquid, all-purpose soap. They are supposed to give us two bottles each about every eight (8) days. Often many more days pass before we are provided more. This is all we are given to wash our hands, bodies and hair.

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 6 of 9
15. Our beds are approximately sixty (60) centimeters apart and it is impossible to practice social distancing. We all use the same three (3) tablets and six (6) phones to communicate with our loved ones within the dorm. We are forced to share three (3) toilets and (2) sinks. There are three sinks, but one is broken and the remaining two are clogged, often accumulating still, dirty water. The showers do not have curtains and are in close proximity to one another. The toilet paper we are given is of poor quality and does not last. We went approximately six days this month without any toilet paper. Those who can, supplement toiletries and food by purchasing items at the commissary.
16. We are terrified of a COVID-19 outbreak, especially after seeing how they handled the H1N1 influenza situation. In this dorm we have people who are vulnerable to coronavirus. There are elderly women detained here, some as old as seventy (70). Other women have diabetes, heart problems or are survivors of cancer.
17. Not long ago, a woman in her fifties suffered an attack. The medical staff came to the dorm, but they did not know what to do. The woman was on the floor suffering seizure-like convulsions. We all watched as they just looked at her writhing on the floor. This lasted for about fifteen (15) minutes. At that point she passed out and they took her away in a wheelchair. The very next day she was brought back to the dorm.
18. The officers and staff do not appear to be taking any precautions to keep us safe from coronavirus. They sometimes come to work sick. I have witnessed officers coughing in our eating areas. They do not wear gloves. They do not wear masks. I heard some of them have quit because they see there are no precautions being taken here.
19. We are not being provided any COVID-19 information or education. We beg them for information daily. There are already three dorms under quarantine due to influenza. We

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 7 of 9
noticed, however, that one dorm’s quarantine is being taken much more seriously. Officers do not enter that dorm. They feed the women through a slot. This is the Alpha Bravo dorm, which we suspect had a confirmed case of COVID-19. 20. We know from the limited news we are able to watch and from our loved ones on the outside with whom we communicate, that this virus will spread very quickly under these conditions. Some of the women detained here are doctors in their home countries and they try to educate us as well. We are afraid we will be left to die in this place. It is a heartbreaking irony, after so many of us fled to the US for fear of death in our home countries. Plans if Released on Parole
21. If I am released on parole, I plan to reunite with my husband who lives with my cousin and our designated sponsor in Tampa, FL. I plan to self-quarantine to keep us safe from COVID-19 infection and to keep fighting my asylum case with the help of my family outside of this facility.

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 8 of 9

VERIFICATION

I, K S

R

am the individual referred to as K.S.R. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Karina Serrano Rodriguez

Date: March 23, 2020

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 9 of 9
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 23, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate.
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 23, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 1 of 10
EXHIBIT
3

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF L.P.C.

I, L.P.C., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a 26-year-old Cuban asylum seeker detained at the South Louisiana Correctional Center (“S. Louisiana”) in Basile, Louisiana. I am a native Spanish speaker. I do not speak any other languages.
Synopsis of Past Persecution

2. In Cuba I studied pharmacology. I completed my degree in or about July 2016. I was instructed that I was obligated to sign up for government service by September of that year. However, I was strongly against the Cuban government’s use of medical workers as pawns for their corrupt agenda. When the time came, I did not want to present myself.
3. I began receiving threats from the supervisor of the relevant sector and from the president of the designated municipality where I was assigned to serve. The police do the government’s bidding. They came to my zone and beat me in front of my family. My

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 3 of 10
mother was particularly affected by witnessing this brutality because she is older and suffers from hypertension. I have scars on my knee from this assault. 4. After beating me, they dragged me by force and detained me for over twenty-four (24) hours with no food and no water. They left me in a cell with another woman who was violent. She beat me and humiliated me in that cell, and they did nothing to stop her. Eventually my mother decided I needed to leave the island in order to stay safe. I fled Cuba at the age of twenty-two (22) on or about December 23, 2016. Journey to the United States
5. In order to leave Cuba, I boarded the soonest flight to Guyana. From there I crossed the border to Brazil, where I worked as the caretaker for a family’s infant. I soon realized I would have no path to asylum or legal status in Brazil. So, I began my journey to the US in order to formally request asylum. From Brazil I crossed through Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, and Guatemala, before finally crossing into Mexico on or about April 10, 2019. This journey was difficult, but I met other asylum seekers that helped me along the way.
6. In Mexico, things grew more dangerous for me. I attempted to board a bus heading to the US border, but I was detained by Mexican authorities. They arrested many of us and detained us in an immigrant jail with terrible conditions. The Mexican officials took all of our belongings, kept our money for themselves, and piled the rest together in a separate cell. Soon, the people detained there grew desperate and a riot ensued.
7. The riot occurred in or about May 2019. The rioters set fire to our pile of belongings. All of my official documents and clothes were destroyed in that fire. I left that detention facility with only the clothing and shoes I had on. Not long after this terrifying experience, I

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 4 of 10
became infected with the dengue virus. I suffered a fever and was bed ridden for several days in Tapachula, Mexico. When I recovered, I made my way to Chiapas and from there to Oaxaca. I was told that I would need to take a special route in order to avoid getting rearrested by corrupt Mexican authorities. 8. I spent over eleven (11) hours on a raft on the ocean headed to Veracruz, Mexico. There were moments that I thought I would die on that raft. Despite taking this perilous route, when we arrived in Veracruz, Mexican authorities detained me once again. I spent forty (40) days in another detention center there. My family hired a Mexican lawyer who secured my release and helped me get on a flight to Chihuahua, Mexico. From Chihuahua, I took a bus to Ojinaga where I presented myself at the US border. 9. I arrived at the port of entry near Presidio, Texas on or about August 5, 2019. There I was told that I would not be processed. I was assigned a number and forced to wait until that number was called. During the following two months I worked several small jobs in order to survive. There are cartels that control that region and I was living in fear. I was finally allowed to request asylum in the US after I was processed by border authorities at the Presidio, Texas port of entry on or about October 15, 2019. Soon after, I was detained under the custody of Immigration and Customs Enforcement (“ICE”). Frustration of Access to Parole
10. After crossing into the US, I was immediately detained at the West Texas Detention Facility in Sierra Blanca, Texas. Shortly after, I received a credible fear interview (CFI). In or around early November 2019, I was transported from Sierra Blanca to S. Louisiana.
11. Upon receiving my positive CFI results, my US citizen cousins and my US citizen aunt quickly sent me documents, including a sponsor affidavit, letters of support, copies of bills,

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 5 of 10
copies of tax returns (evidencing an annual income of over $100,000), proof of their identity, proof of their US citizenship, a copy of my Cuban national photo-identification card, and a copy of my clean criminal record. As soon as the documents arrived, I attempted to submit them to my assigned DO, Officer Silva in support of my parole request. 12. Officer Silva refused to accept my documents and told me I would just have to wait until my court date. He said that parole is simply not granted in Louisiana. Over the last four months, I have made several attempts to request parole. All of my efforts have failed. The denial letters are all the same, checking off a box indicating that ICE has determined me a flight risk, without further explanation. Conditions of Confinement
13. In March 2020, at least two of the dorms in this facility were placed under quarantine, including my dorm. We were expressly told this was due to an outbreak of H1N1 influenza. We are all terrified of a COVID-19 outbreak in this facility.
14. In my dorm there are seventy-two (72) women sharing close quarters and contained air. Our beds are about half a meter apart. We are forced to share three (3) toilets and three (3) sinks. We are not provided hand soap or hand sanitizer. For six (6) days in March, we were not taken to the yard for fresh air. Despite the quarantine, they continue to bring newly detained women to this dorm, putting them at risk for H1N1 and putting all of us at risk for COVID-19.
15. They give each woman here two four-ounce (4 oz) bottles of soap to last us a week or longer. It is like a liquid shampoo and it is all they give us to clean our hands, bodies and hair. It does not contain disinfectant. Many times, they do not have enough to go around.

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 6 of 10
16. On or about March 19, 2020 for example, it was time for them to replenish our toilet paper and four-ounce bottles. However, they told us they did not have any to provide due to coronavirus. The toilet paper they do provide does not last us for the week and it is very poor quality. During the month of March 2020, we went about five (5) days without any toilet paper.
17. Most of us in this dorm have been experiencing flu-like symptoms including diarrhea and sore throat. If we complain or consistently ask for medical attention, we are provided one or two ibuprofen tablets. I suffered from flu-like symptoms including diarrhea, fever, and pain in my veins. They tested me for influenza and I tested negative, so they returned me to the dorm. They did not test me for COVID-19.
18. We have to purchase the limited medicine available in the commissary to help control our symptoms. For example, you can buy approximately 30 pills of ibuprofen for three US dollars ($3.00). Vitamin C and other preventative vitamins or medicine are simply not available.
19. In or about the month of March 2020, we witnessed another scary incident of neglect in this dorm. One woman was running a very high fever. She was sweating and she could not stop shaking. We were all concerned she would have seizures or die. We continuously asked the officers supervising our dorm to take her to medical. They ignored our requests for hours. We continued to beg them to get her help.
20. After five hours of asking the officers to please take her to get medical attention, a few women placed a piece of bread in one of the microwaves in our dorm. They turned the microwave on for several minutes. They were hoping to set off an alarm to force the

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 7 of 10
officers to enter our dorm and help her. The bread started to burn, and the smoke detectors went off as planned. 21. They entered our dorm and took her to the medical unit. One officer told us that the microwave was more valuable than any of us. Since then, she was diagnosed with H1N1 and is in isolation. The only other measure they have taken is that they visit our dorm twice a day to take our temperature. 22. We have been under limited quarantine for about a month, with the same set of gloves and the same limited masks. When we ask for replacement gloves and masks, they tell us they do not have any new ones to provide us. All the workers here are coming back inside after contact from the outside world. They do not wear masks and they do not use gloves. A group of us communicated with a man we believe to be a GEO director. He told us he cannot require staff to wear these items because it is not the law. 23. In this dorm, there are at least ten (10) women who are older than fifty (50) and some who are as old as seventy-one (71). There are also women who suffer from asthma and diabetes, as well as a few survivors of cancer and at least one woman living with lupus. To make matters worse, the food we are provided is of poor quality and has no nutritional value. It often makes us sick. 24. All the measures we are taking to protect ourselves in this dorm are based on news we watch on television or from speaking with our loved ones on the outside. The staff and guards here have not provided us any education on COVID-19 measures or precautions. We are all upset because it is impossible to exercise effective social distancing under these conditions.

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 8 of 10
25. The medical unit here is not staffed with doctors or nurse practitioners. Even when they have taken women into isolation in the medical unit, they are not provided adequate care. For example, a woman in our dorm tested positive for H1N1. They took her to an isolation room in the medical unit. When she was cleared and finally returned, she told us how she was treated.
26. She told us she was unable to bathe or change clothes for three days. She said she tried asking for soap and toothpaste and clean clothes, but no one helped her. She said she was not given any medicine other than ibuprofen. She said she was left unattended for long periods of time. She said she lost all sense of time in that room, vomiting and running a high fever. She said sometimes they forgot to feed her, and she would have to try to get someone’s attention through a glass window to remind them to bring her food.
Plans if Granted Release on Parole
27. If I am released on parole, I plan to live with my aunt and cousins in Florida, all of whom are US citizens. I plan to self-quarantine in their home and to continue fighting my case before the non-detained court. I hope to be released to my family soon. They will help me recover from all I have suffered to secure a free and safe life here in the US.

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 9 of 10

VERIFICATION

I, L P C

, am the individual referred to as L.P.C. in the attached declaration.

I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf

given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic.

I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-

19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this

facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Laura Perez Carranza

Date: March 25, 2020

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 10 of 10
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 25, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 25, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 1 of 7
EXHIBIT
4

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF O.M.H.

I, O.M.H., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a 32-year-old asylum seeker and political dissident from Venezuela. I am HIVpositive and suffer from Hepatitis C. I am currently detained at the LaSalle Detention Facility in Jena, Louisiana. I was transferred here yesterday from Richwood Correctional Center (“Richwood”) in Monroe, LA where I was detained since July 2019. I am a native Spanish speaker.
Synopsis of Past Persecution

2. In Venezuela I worked for the government. I was threatened by paramilitary officers known as colectivos because I refused to comply with government orders that were against my moral compass and political opinion. They wanted me to report against a small town for establishing their own rations, sharing food and other necessities, outside of the government’s parameters. I refused.

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 3 of 7
3. In or about November 2018, five (5) armed colectivos came to my home and threatened my life in front of my family. They pointed guns at me in front of my mother and told me if I did not follow their orders, they would kill me. The very next day I fled to Colombia.
Journey to the United States
4. Life was difficult in Colombia as I endured a lot of xenophobia and had no path to status. I decided to seek asylum in the United States (“US”). I arrived in Reynosa, Mexico in or about May 2019. I presented myself at the Hidalgo, Texas port of entry and informed US border authorities I was requesting asylum. They took my Venezuelan passport and national photo-identity card and placed me in the custody of Immigration and Customs Enforcement (“ICE”).
Time in ICE Custody
5. I was first detained in the El Valle Detention Facility in Raymondville, Texas. I was held there for about eight (8) days until I was transferred to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Mississippi. I was held in Tallahatchie for about twenty-six (26) days. In Tallahatchie I was provided a credible fear interview and quickly informed of the positive determination. Soon thereafter I was denied release on parole without having applied for it. On or about July 3, 2019 I was transferred to Richwood.
6. My time in ICE custody has been very difficult to endure, particularly given my medical conditions. I was not provided medication to treat my illnesses until about January 2020. I have many visits with psychologists because of insomnia and depression as a result of my heightened anxiety regarding my health under these prolonged conditions of confinement. If anyone gets sick around me, I could die. I am living in fear.

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 4 of 7
7. In Richwood, my dorm held one hundred (100) men at any given time. We were forced to share four (4) toilets, four (4) sinks, and five (5) showers. The food was awful and made me sick. A crucial part of staying healthy while living with HIV is eating plenty of healthy food to keep my immune system as strong as possible. This has been impossible. I have suffered from stomach ailments throughout my ICE incarceration.
8. During the months of November 2019, December 2019 and January 2020, I suffered serious illness. During this time, I had to be taken to the nearest hospital on two occasions. I lost a lot of weight very quickly and had flu-like symptoms, including fever. In Richwood, the medical unit does not have major medical equipment or beds for patients. The only thing that staff in the medical unit do for you is give you pills. They do not properly conduct check-ups, such as tracking my vital signs and taking blood samples. To my knowledge, it is not staffed with any doctors and it is generally not staffed overnight.
9. Despite the threat of coronavirus, the overcrowded dorms and the poor conditions, ICE was transferring more and more men to Richwood. Additionally, ICE officers simply stopped visiting us at all. They would not accept our parole requests and they would not provide us information. At least half of the population at Richwood engaged in protest in the form of hunger strikes due to these issues. In or about December 2019, officers stormed two of the dorms at Richwood in riot gear. They sprayed tear gas and shot rubber bullets at the men as retaliation against their peaceful strikes.
10. My immigration attorney filed an extensive parole request on my behalf on or about March 26, 2020. The next day I was transferred to LaSalle with no explanation. Neither here nor at Richwood are precautions being taken in light of coronavirus. The officers do not provide us any education or information related to COVID-19. Despite the governor of

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 5 of 7
Louisiana declaring a state of emergency, they do not wear masks or gloves. They do not provide disinfectant. Plans if Granted Release on Parole
11. As my attorney included in my parole request, my sponsor is a long-time friend and US citizen residing in Texas. Should I be released from detention, I plan to live in his home and self-quarantine in order to protect my life and health. The parole request packet my attorney submitted was approximately one hundred (100) pages in length, including evidence of my clean criminal record, additional letters of support, evidence of my sponsor’s US citizenship, his tax returns, bills and housing information. She also included evidence that my brother, who is pursuing asylum in the non-detained setting, is paying taxes. I hope that I am released before the situation in Louisiana presents an acute threat to my life, safety and well-being.

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 6 of 7

VERIFICATION

I, O M H

am the individual referred to as O.M.H. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Otto Jesus Matos Hernandez

Date: March 28, 2020

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 7 of 7
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 28, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate.
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 28, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 1 of 11
EXHIBIT
5

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 2 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF R.P.H.

I, R.P.H., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name initials are R.P.H. and I am a Cuban national detained at the South Louisiana Correctional Center (“South Louisiana”) in Basile, Louisiana. I am fifty (50) years old, and I am a breast cancer survivor.
2. I am a native Spanish speaker. I do not speak any other languages. Relevant Medical History

3. When I was fifteen years old, doctors in Cuba discovered that I had benign nodules in my breasts. They removed the nodules and told me that I would not be able to have children for fifteen years.
4. I gave birth to my daughter in 1999, when I was thirty years old. She was born two months premature, and as a result, she has a mental disability. During my pregnancy, doctors found a malignant tumor in my right breast. They performed a surgery to remove my right breast entirely, as well as a part of my left breast. During that time, I went through six cycles of

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 3 of 11
radiation. After my mastectomy, doctors conducted an operation to try to reconstruct my breasts using skin from my stomach, but the operation did not work well. 5. When I was forty-two years old, the skin from my breasts began to rot and die as a result of more malignant cells. I had another operation in 2012 to completely remove my breasts and clean out the entire area. This time, I underwent sixteen cycles of radiation. I was unable to do anything for seven months, during which time I felt constantly weak and was in and out of the hospital. I lost fifty pounds during this treatment, my hair fell out, and the radiation left permanent physical damage to my body. Synopsis of Past Persecution
6. I am fleeing violence and imprisonment at the hands of the Cuban government. When I graduated from university to become a chemical industrial engineer in Cuba in 1993, the Cuban government began pressuring me to participate in its political party. I have never wanted to participate in a group in which I don’t believe. I would regularly speak about my political opinion and participated in numerous protests. Due to these actions, police began coming regularly to my house, threatening me and searching my home for evidence to prove I was against the government. They ordered me to participate in political events and marches, but I refused.
7. When the Cuban police learned that I was speaking out against the Cuban government at my workplace, I was fired from my job in or about September of 2016. After Fidel Castro died in November 2016, the country went into a period of mourning, but since my family believes that the Castro regime is a dictatorship, we were not sad. On the one-year anniversary of Castro’s death, my family was over at my house, having a get together. We were not mourning. The police chief came to my home and stopped the music we were

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 4 of 11
playing. He insulted me, arrested me in front of my family, and took me to the police station where I was interrogated, intimidated, and threatened for two hours. 8. On or about May 10, 2018, I was denied entrance to my daughter’s school because school officials said I was a “counter-revolutionary.” The police arrived and pushed me around. They detained me, putting me in handcuffs in front of my daughter, who has a mental disability. She was terrified and humiliated. She didn’t understand what was happening. Police again took me to the police station, where they threatened me and verbally abused me for six hours. That same day, they issued me a letter threatening to take me to jail if I said or did anything else viewed as “counter-revolutionary.” 9. I knew from neighbors that had spent time in Cuban jails that people starve to death and die in those places. I knew of people who were “disappeared” by the government, and their families never heard from them again. I knew at this time that I had no choice but to leave the country. Journey to the United States
10. I left Cuba on or about May 24, 2018. I took a plane from Cuba to Guyana, and from there, I crossed the jungles of Guyana and Brazil, to the border with Uruguay by bus and on foot. With my health problems, I was lucky to survive the journey.
11. I arrived in Uruguay on or around May 29, 2018. It was very dangerous in Uruguay, and I knew it was not safe for me to stay there. I was able to find work at a wine factory. For about ten and a half months I stayed working in Uruguay until I was able to save money to come to the United States (U.S.) to request asylum.
12. From Uruguay, I flew to Nicaragua, and from Nicaragua, I made my way north by bus through Honduras, Guatemala, and Mexico. On or around May 28, 2019, I arrived at the

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 5 of 11
U.S.-Mexico border. I was issued a number and forced to wait for two months until it was my turn to present myself at the port of entry in Hidalgo, Texas. On or about July 25, 2019, I was crossed through the port of entry, where I identified myself as a survivor of political persecution in Cuba and asked for asylum. I was detained by border authorities and quickly transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original Cuban photo-identity documents. Frustration of Access to Parole
13. From Hidalgo, I was transferred to a detention center in Texas for about four days. I was then transferred to South Louisiana, which is where I remain detained today. I had my credible fear interview on or about September 4, 2019 and was determined credible soon thereafter.
14. I am eligible for parole and I have applied four times. All my requests have been denied. Each denial letter checks off a box indicating that ICE determined I was a “flight risk” with no further explanation. However, I have extensive family living in Florida, all of whom are U.S. citizens who are prepared to support me and ensure I attend my future court hearings. I provided extensive evidence of this in my applications. I have been told by ICE agents on multiple occasions that I will not be granted parole unless my cancer returns.
Conditions of Confinement
15. Being in detention the last eight months has been a very traumatizing and hopeless experience for me. The stress from being confined in such a small space, forced to endure verbal and psychological abuse by guards, and repeatedly denied access to relief is causing me to deteriorate physically and mentally. Despite my medical history, I arrived at South Louisiana strong and in good health. I feel I have aged dramatically. I have been sick more

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 6 of 11
times than I can keep track of in this facility. I first got sick around the end of August or beginning of September. My throat was very sore, my ear hurt, and I had a fever. I was administered a round of antibiotics. About fifteen days later, in September, I got a bad cold. This cycle of sickness continued. 16. When I get sick here, I have to fill out a request to be sent to the medical unit. However, officers refuse to take me to medical the day I make the request. Sometimes, if I am lucky, I get to go the following day. Other times, I am made to wait days before being seen. At times, I have had to cry and beg to be taken to medical, because we are not taken to medical unless they perceive a sickness to be life-threatening. 17. In or about October 2019, I was experiencing intense back, leg, and arm pain. I also began fainting. I lost consciousness various times. I was experiencing nausea, headaches, dizziness, and loss of vision. One day I passed out in the bathroom and was taken to the hospital. The doctor there told me he was very scared for me. He believed that I might have a tumor in my head. They conducted various tests, which came up negative for cancer. But the doctor revealed at this time that my spinal discs were compromising my nervous system, in particular, my sciatic nerve, which was leading to the pain in my spine, left leg, and right arm. 18. Through January 2020, the pain worsened significantly, and my left ankle has swollen. When the pain is particularly bad, I cannot get out of bed or walk around for several days at a time. Often, I cannot sit because I am in too much pain. The doctor told me that my pain has become chronic and that I really need physical therapy, but I am not provided with any physical therapy here. The doctor also recommended I take vitamins, but South Louisiana does not provide me with the vitamins I need. Taking vitamins was an important

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 7 of 11
part of my daily regimen in Cuba alongside a balanced diet, frequent exercise, and regular check-ups. I was also taking medication that helped me manage the symptoms from the surgeries and radiation. Despite having low immunity, I took good care of my health in Cuba, so I did not get sick very often. It was not until I came to South Louisiana that my health, since being in remission, took a deep dive. 19. Here, the diet is hardly balanced and rarely nutritious. Fresh fruit is rare, and so much of the food we are provided is made from flour and full of margarine. The food is also very spicy. The only water we have access to here is from the faucet, and it tastes like bleach. Due to the poor nutrition, my blood pressure—which was always healthy in Cuba—has gone up. Additionally, due to the poor diet and medications I am on here, I have gained about thirty-five pounds, which I believe has exacerbated my body pain. 20. Sanitation here is also horrendous. ICE and detention center officials are actively putting our lives at risk by denying us even the most basic hygiene and sanitation supplies. While in detention, I have never had access to hand sanitizer, anti-bacterial wipes, gloves, or masks. The only thing we receive about twice a month are small bottles of shampoo and a small roll of toilet paper, which only lasts about nine days. Even after my dorm was placed under quarantine around the end of February or beginning of March (for what we were told was an outbreak of the flu), no additional cleaning or hygiene supplies were provided. I have never seen officers using any sanitation supplies to clean the facility. 21. Additionally, they have laundered the blankets only once during the eight months I have been detained here. Officers at South Louisiana also do not clean the phones. The women detained here try as best as we can to clean them with what we have. The sanitation of the dorms is also left to us, but we do not have access to adequate cleaning products to properly

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 8 of 11
sanitize the dorm. Now that coronavirus is a looming threat, the only thing that has changed is that we have finally been provided with four small hand soaps, which will not last long in our dorm. Before about mid-March, I never had access to hand-soap. 22. Currently the majority of us in my dorm, Echo-Charlie, feel ill. There are women coughing and sneezing all around me. Even in such a state, women continue to be transferred to South Louisiana from other centers. In my dorm, there is only about half a meter between each of us at any given time. Echo-Charlie dorm was in quarantine for fourteen days around early March. Now, the Fox Bravo and Alpha Bravo dorms are under quarantine. 23. Some of the regular practices of the medical staff here have become especially worrisome given the threat of coronavirus. Sometimes the nurses come to the dormitory to check on some of us, and they use the same set of gloves to examine all of us. I have also noticed when I go to the medical unit, the nurses never change their gloves in between tending to different patients. 24. On or around March 21, 2020, five deportation officers came to our dorm. They told us that four of the deportation officers were quitting their jobs because of coronavirus. When asked for more information, one of them said, “We are leaving because they are doing a bad job here.” One of the officers that left was my assigned deportation officer, Jason Brownsfield. Now only two ICE officers remain, tending to the over-400 women detained here at South Louisiana. 25. On the evening of March 27, 2020, GEO Group officers came into our dorm and told us that due to staffing shortages, they would be combining two dorms. They combined my dorm with the dorm of women under H1N1 quarantine. Now there are seventy-two (72) of us in the same dorm, and all the women from the other dorm are sick. There is even less

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 9 of 11
space between us now. We asked the officers for disinfectant, but they denied our request. The officers are not disinfecting the dorm and they are not using gloves. I have also witnessed officers working extra shifts because so many staff have quit. 26. Women who joined us from the quarantined dorm have been telling us about how they were treated. Some placed in isolation said they were not provided the opportunity to bathe for three consecutive days, they were sometimes denied water, and they were not provided food consistently. The women also confirmed that their sheets and clothes were not washed during the quarantine, and they were not allowed to wear their undergarments. They also said doctors never came to check on them while under quarantine, and not once did any officers come to clean the dorm during the quarantine. They look so sickly. Plans if Granted Release on Parole
27. It has now been about ten (10) months since I first arrived at the U.S. border, and I am still awaiting my next master hearing, which is not until May 2020. I do not understand why ICE continues to hold me here in unsanitary and life-threatening conditions, when they have full authority to release me to the care of my family sponsors, and when I have demonstrated my commitment to following all legal procedures requested of me. I do not know how much longer I will survive the conditions of my confinement.
28. If I am released, I plan to live with my U.S.-citizen family members in Florida and selfquarantine in their home to protect myself from serious risk of illness and death due to COVID-19. I plan to rely on their financial and emotional support to begin recovering from the physical and mental deterioration I have endured seeking safety in the U.S. I plan to find legal representation and to continue fighting my asylum case before the non-detained court. I hope I live to see that day.

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 10 of 11

VERIFICATION

I, R P H

, am the individual referred to as R.P.H. in the attached declaration. I

declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

____________________________________ Jaclyn Cole
On behalf of witness Rosa Pino Hidalgo

Date: March 26, 2020

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 11 of 11
CERTIFICATION I, Jaclyn Cole, declare that I am proficient in the English and Spanish languages. On March 26, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 26, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 1 of 8
EXHIBIT
6

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF S.U.R.

I, S.U.R., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a Nicaraguan asylum seeker detained at the Adams County Correctional Center (“Adams”) in Natchez, Mississippi. I am native Spanish Speaker and I speak no other languages. I turn sixty (60) years old next week. I suffer from hypertension and a systolic heart murmur. I have been detained under the custody of Immigration and Customs Enforcement (“ICE”) for thirteen (13) months.
Synopsis of Past Persecution

2. I am fleeing violent persecution in Nicaragua due to my political opinion against Daniel Ortega, whom I consider to be a fascist communist dictator akin to Fidel Castro. On or about April 23, 2018 I participated in peaceful demonstrations against the Ortega regime in Managua, Nicaragua. That day, I was beaten by Nicaraguan paramilitary officers. They also shot me twice resulting in injuries to my left arm and my genitals.

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 3 of 8
3. Thereafter, I was hospitalized. When I recovered, I went into hiding, moving from place to place. Conditions in the country grew worse as Ortega made every effort to destroy media, journalism and human rights organizations in our country. My nephew suffered similar mistreatment due to his political opinion and participation in peaceful protests. Afraid we would be tracked down and killed, we decided to leave and seek safe safety in the United States (“US”). We left Nicaragua together on or about September 24, 2018.
Journey to the United States
4. We traveled through Honduras and Guatemala until we reached the Mexican border. It was difficult to obtain permission to travel through Mexico. After crossing over, armed criminal factions kidnapped us and held us for ransom. However, our families had no money to pay these men. I was sure we would be killed. They finally dumped us naked and deprived of our belongings, leaving us for dead in the mountains.
5. Eventually we made our way to the US - Mexico border at El Chaparral in Tijuana. We had no money and had to work various small jobs to survive. We sought help from volunteers at an organization called Al Otro Lado. We were told that we would have to wait in line to seek asylum in the US. We were assigned numbers to wait on or about January 23, 2019. We crossed into the US at the San Ysidro port of entry on or about February 25, 2019.
Frustration of Access to Parole
6. After being processed at the border, we were kept in temporary holding cells known as hieleras for about eight (8) days. On or about March 3, 2019 we were transferred to the San Luis Regional Detention Center in Arizona. On or about March 11, 2019 we were

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 4 of 8
transferred to the to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Mississippi. 7. While detained in Tallahatchie, I was provided a credible fear interview. About two weeks later, I was given the positive determination results along with documents informing me of my right to apply for parole. However, three or four days later, I was given a letter in English denying me parole without my having applied for it. The English language denial letter checked off a box indicating that ICE had determined I was a “flight risk,” without offering any explanation as to how they made this determination. 8. On or about April 11, 2019 we were transferred to the River Correctional Facility in Ferriday, Louisiana. By this time, I was able to get more help from my primary sponsor, a US citizen woman named Suzi residing in Spokane, Washington with her US citizen husband. My nephew and I met Suzi while she was volunteering in Tijuana with Al Otro Lado. She took a great interest in helping us after learning of our story. 9. With Suzi’s help, I secured an attorney to represent me in my asylum claim and to request release through parole. Suzi provided a sponsor affidavit, a letter from her husband, evidence of their US citizenship, copies of their tax returns showing their significant wealth, documentation of the housing they offered to me and my nephew and copies of my identity documents. In addition, we gathered letters of support from our cousins living in New York and Miami. However, I was never provided a parole interview nor any decision on the request. 10. On or about November 11, 2019, we were transferred to Adams. My sponsor and attorneys had no luck in pursuing my parole request. We focused our efforts on my asylum case. Despite my testimony, medical records evidencing my serious injuries, and corroborating

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 5 of 8
letters, the judge denied my case. With the help of my lawyers, I field an appeal and it is currently pending before the Board of Immigration Appeals. Conditions of Confinement
11. I cannot describe the pain I felt the day the judge denied my case. He said he did not believe me that I was shot, despite the medical records I presented and the visible scar on my arm. While I broke down in tears, he stated that the scar on my left arm appeared, in his opinion, to be from a cigar burn and not a bullet wound.
12. About twenty-four days ago, they transferred my nephew to the LaSalle Detention Center. This has caused me great despair. He was in an accident as a child and as a result only has one functioning kidney. I am terrified that they will deport him, and he will be killed in Nicaragua or that he will contract COVID-19 and die in that jail. I am also scared for my life and well-being in this facility.
13. My dorm alone holds two-hundred and forty (240) men. We all breathe the same contained air. Our beds are less than a meter apart. We are forced to share six (6) toilets, twelve (12) sinks, twelve (12) showerheads, all in close proximity. To make matters worse, the quality of the food here is terrible. Anyone who does not have money to buy more food in commissary is very sick or malnourished. Most of the men here have diarrhea. The bathrooms are always occupied. We have to stand in line to use the toilet.
14. We are each provided one small square of soap about every eight (8) days. The square of soap cannot weigh more than two (2) ounces. In order to stay clean, you have to buy your own soap in the commissary. One bar of soap costs about one dollar and fifty cents ($1.50). Many do not have the money to purchase items and remain dirty. Our clothes are all comingled and washed together.

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 6 of 8
15. We are also provided a very small, travel-size, tube of toothpaste about every eight (8) days. Sometimes the soap and toothpaste are not available for several days longer. It is not sufficient and, people supplement by buying toothpaste from the commissary, if they can afford it. The guards and officers here do not wear gloves or masks. We are not being provided any health information or explained precautionary measures that should be taken in light of the COVID-19 pandemic.
16. There are many men at high risk in my dorm. At least a dozen men in my dorm are over the age of fifty-five (55). There are men with diabetes, asthma and hypertension like me. My friend, a Venezuelan asylum seeker in my dorm, is sixty-three (63) years old and suffers from both diabetes and hypertension.
17. Worse still, rumors are growing that there are already a few cases of COVID-19 and that those men are supposedly in isolation. People are growing desperate to be released to avoid getting very sick or dying in here. The officers here do not care about our safety or health. They yell at us for everything. If we ask questions or plead for help, they yell and reprimand us. If we engage in peaceful protest of any kind, they punish us. I have already endured so much to escape death in my country. I pray I will not meet death in this jail.
Plans if Granted Release on Parole
18. Suzi has promised to continue helping me financially once I am released. I will also rely on my family in the US for emotional and financial support. If I am granted release on parole, I will live in the housing that Suzi offered and continue to fight my appeal. I will self-quarantine in that home to avoid infection from coronavirus and I will seek help to secure my nephew’s release so he may do the same.

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 7 of 8

VERIFICATION

I, S J U

Rojas, am the individual referred to as S.U.R. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

__________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Silvio Urbino Rojas

Date: March 24, 2020

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 8 of 8
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 24, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 24, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 1 of 9
EXHIBIT
7

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF T.M.F. I, T.M.F., declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. My initials are T.M.F. and I am a 44-year-old Cameroonian national detained at the LaSalle Detention Facility (“LaSalle”) in Jena, Louisiana.
Synopsis of Past Persecution 2. I am fleeing torture and death in Cameroon as a member of the English-speaking minority and due to my imputed political opinion as a separatist against the current regime. I also speak an indigenous language called Baforchu. In Cameroon I provided for my wife and children working in food provision out of a small warehouse. 3. Beginning in or about late May 2018, I was targeted by the Cameroonian military. They wrongfully suspected me of belonging to an armed separatist group because they were shown photos of me with members. However, these photos were taken while these separatists were extorting me at gunpoint. They wrongfully detained and tortured me on two separate occasions, for several days on end. They set fire to my warehouse and all the

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 3 of 9
goods contained therein. They also cut off half of my youngest son’s finger. He was less than two years old at the time. 4. The acts of torture I suffered at the hands of military officers included stripping me naked, beating me mercilessly all over my body and face until I bled from my nose and mouth, hitting me with the dull side of a machete, using electric jumper cables to shock my penis, raping me with a baton, hitting my left knee with the butt of a long rifle which broke my skin open and exposed my kneecap, carving into my right knee with a knife, forcing the barrel of a gun into my mouth, and subjecting me to a water pressure hose that caused an infection in my eyes, the side effects of which persist to this day. Journey to the United States 5. When I was able to escape my tormentors, I fled to Nigeria in or about June 2019. I was told that I could not stay safely in Nigeria because the Cameroonian military would quickly find me again and surely kill me for daring to escape them a second time. I decided I would travel to seek asylum in the United States (US) where I have family members who could help me recover from all the violence and trauma I endured. 6. On or about June 10, 2019 I flew on Turkish Airways from Abuja, Nigeria, to Quito, Ecuador. En route to Ecuador we stopped briefly in Bogota, Colombia, and Panama for connecting flights. I arrived in Quito on or about June 12, 2019. From there I had a long and difficult journey by bus and by foot through Colombia and Central America until I reached Mexico on or about July 28, 2019. This travel included eight terrifying, lifethreatening days through the Darien Gap jungle. 7. Once I was in Mexico, I traveled to the US border in Nuevo Laredo. There, I was told I could not directly enter the US to seek asylum. I was assigned a number and forced to wait

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 4 of 9
in Mexico until that number was called. After struggling to survive for months in Latin America, where very few people spoke English, I was allowed to enter the US to request asylum. I crossed the bridge port of entry in Laredo, Texas on or about October 28, 2019. I was detained by border authorities and transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original Cameroonian passport and my original national photo-identity document. Frustration of Access to Parole 8. From Laredo, I was transferred to the Rio Grande Detention Center in Texas, where I was held for about two weeks. I was then transferred to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Mississippi. While detained at Tallahatchie, I was provided a credible fear interview on or about November 29, 2019. Soon thereafter, I was provided a positive credibility finding and related paperwork. 9. While detained at Tallahatchie, I was able to seek out limited legal assistance from the Mid-South Immigration Advocates non-profit. With their help, I was able to apply for parole. They worked with my family to collect all necessary evidence in support of my parole request. However, their efforts proved in vein as I have been denied parole several times now. Each denial letter checks off a box indicating that ICE determined me to be a flight risk as the only rationale for the denial. No further explanation is provided. At least two officers told me that parole is not granted in Louisiana. One Deportation Officer told me to not place my hope in parole and focus on my case. 10. My last request for parole included the following supporting evidence: an affidavit from my proposed sponsor, my cousin who lives in Massachusetts; evidence of his US citizenship; copies of his tax returns for the past two years; a letter of support from another

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 5 of 9
US citizen cousin living in Massachusetts; and a letter of support from my niece, who is a Lawful Permanent Resident, also residing in Massachusetts. I also included information about the fact that I am on medication for depression and that I have serious chronic injuries from the brutal attacks I suffered in Cameroon, including to my eyes, back, wrist and knees. 11. On or about December 10, 2019, I was transferred to the River Correctional Facility (“River”) in Ferriday, Louisiana. On or about January 6, 2020, I was transferred to LaSalle. Here, no one gave us any helpful information about parole, which fueled my anxiety and despair. For weeks, I pleaded with the officers to tell me the name and contact information for my designated deportation officer (“DO”). They finally told me my assigned officer is DO Feiek. When I asked for his contact information, they provided me the address for the River facility in Ferriday, Louisiana. My family and I have had no luck in communicating with him. 12. I had my final hearing before the Immigration Judge (“IJ”) on March 10, 2020. The IJs in this region are inhumane and not impartial from all I have witnessed over the past five months. However, because of the strength of my case, the severity of my past persecution and my ability to present my facts fluently in English, I was thankfully granted Withholding of Removal due to my fear of return to Cameroon on that day. 13. Despite winning my case, ICE is refusing to release me. They told me that I will have to wait thirty (30) days before they will even consider freeing me from this place. I am terrified they will use COVID-19 as an excuse to keep me here indefinitely. This is frustrating and makes no sense, because most of us have family and sponsor homes where we can live to properly self-quarantine or practice social distancing in order to prevent the spread of this terrible virus.

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 6 of 9
Conditions of Confinement 14. More than ninety (90) men are in my dorm alone. ICE continues to bring in more men into this facility everyday despite the COVID-19 pandemic. In my dorm we only have five (5) toilets that we must all share. We have one large showering room with only five (5) showerheads for us all to use for bathing. There are no curtains separating the space between showerheads within the shared room. Additionally, the shower room has only two (2) soap dispensers that release foam. 15. We share eight (8) sinks. Next to the sinks are two (2) more soap foam dispensers. All four soap dispensers frequently run out of soap. We are not provided additional soap or shampoo. We are often left with nothing to clean our hands, hair and bodies. We have to buy our own soap from the commissary if we wish to clean ourselves properly. One bar of soap costs about three US dollars ($3). I had to buy my toothpaste at the commissary because the quality of the toothpaste they provide us is very poor. We are given toilet paper, but it is also very poor quality. 16. The other day, one man in my dorm put his mouth directly on the jug of water from which we all pour our drinking water. We grew very upset and immediately notified the guards, asking for help. They told us to shut up and stay quiet in our dorm. We explained what happened and our reasonable fear of contamination, but they refused to replace the jug of water. 17. Additionally, there is no substantive medical care here. We do not have doctors attending to our medical issues and they rarely provide us medicine. If you complain of any illness, you are lucky if they give you ibuprofen. Throughout my time at this facility, I have endured severe pain from my chronic injuries, but they refused to take me to a real hospital.

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 7 of 9
The most they would do is provide me a small amount of ibuprofen, which did nothing to ease my pain. 18. One man in my dorm has a painful hernia in his genital region. We cannot sleep because every night he is crying and shouting out in pain. All they do is give him ibuprofen. We have several men in this dorm with high blood pressure and mental health problems. Two men suffer from diabetes and are injected twice daily with needles. There are several men well over fifty years old in my dorm, as well. 19. The men at this facility are growing more desperate as we learn news of the COVID-19 pandemic and its serious risk to all of our lives and well-being. We learn this through our limited access to news sources or from our loved ones on the outside. The officials here do not orient us, provide education or even talk to us about COVID-19. We beg them for information. They are not taking any preventative precautions. Sometimes when we return from the yard, they tell us to wash our hands, but that is it. 20. Many officers are not coming to their post because of this fear. Several wear gloves, but none wear masks. No hand sanitizer or other form of disinfectant is available in the facility. Some officers are rumored to have quit. Now, only one officer is supervising two of our large dorms. She sits outside of our dorms to surveil the two dorms. This is a very dangerous situation, and I am worried what will happen as the men here continue to grow more desperate and fearful for their lives. 21. Recently, I learned that some of the asylum seekers planned a hunger strike to take place throughout the facility. They asked us all to stop eating. They asked people who work in units like the kitchen and laundry to stop working. They are asking people who are taken

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 8 of 9
to the yard for recreation to refuse to return to the jail. They want ICE to take their requests for release seriously because we are all scared and eligible for release. 22. Today the formal strike began after it was rumored that there were two confirmed COVID19 cases in one of the dorms at this facility. In retaliation of the protest, officers in riot gear came to intervene. They entered our dorm and sprayed tear gas. I fell and was unable to exert control over my body and limbs. 23. A female officer came to help me up. She had to press on my back before I was able to regain some control. At this point I was taken for a medical check-up. When I returned to my dorm, I realized that some of my items were missing, including a book where I keep important phone numbers and addresses. I only have one family member’s phone number memorized, so I was very upset. 24. In my dorm, several of the African asylum seekers are planning to write a letter about our situation, these dangerous conditions, and our increasing panic related to COVID-19. They are planning to put everyone’s name and A number to sign the letter. After all we have suffered and endured to seek safe haven in the US, we cannot believe we may be left to die here in these detention centers. Plans if Released 25. If I am released, I plan to self-quarantine in my cousin’s home to protect myself from COVID-19. I also plan to rely on the financial and emotional support of my family living in Massachusetts to physical and psychological therapy. I hope I am released to my family soon, so I can begin to heal from the extensive trauma I have suffered.

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 9 of 9

VERIFICATION

I, T

M

F am the individual referred to as T.M.F. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf

given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic.

I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-

19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this

facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Thaddeus Mokom Fon

Date: March 23, 2020

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 1 of 11
EXHIBIT
8

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 2 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF Y.P.T.

I, Y.P.T., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My initials are Y.P.T., and I am a 30-year-old Cuban national detained at the Catahoula Correctional Center (“Catahoula”) in Harrisonburg, Louisiana. I am a native Spanish speaker. I do not speak English.
Synopsis of Past Persecution

2. I was forced to flee Cuba due to political persecution at the hands of the Cuban government. On or about May 1, 2018, the police arrived at my house around 8:00 am. That day was a commemorative holiday with official events that all are expected to participate in. The officers demanded that I leave my house, and they interrogated me about my failure to participate. I responded that I had no interest because I do not believe in politics. In front of my mother, my wife, and my five-year-old daughter, the police began to beat me until my face was bloodied. They handcuffed me and then took me to the police station.

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 3 of 11
3. I was put in a cell, where they continued to brutalize me with a police baton. They hit my body, my stomach, my arms, my feet, and my face. They called me a counter-revolutionary and threatened to disappear me. I was half-conscious when they threw me to the ground, and one police officer proceeded to sexually assault me. They left me on the floor for an hour, traumatized and half-conscious. They kept me detained without medical attention for twenty-five days, until the bruises and cuts had nearly disappeared.
4. Shortly thereafter, my family accompanied me to the police station, and we formally accused the police of mistreatment. However, the corruption in Cuba is pervasive, and because I had no visible cuts or bruises anymore, they said it was just my word against theirs. They refused to look into the incident.
5. After receiving multiple official citations and continued threats of imprisonment and disappearance, I was detained again on or about July 26, 2018, again for failure to participate in political events. Upon my release, three days later, I decided to flee and seek asylum in the United States (U.S.).
Journey to the United States
6. On or about October 16, 2018, I took a flight from Cuba to Guyana. The journey from Guyana to the U.S. was extremely difficult. I traveled by bus and on foot. I experienced physical and sexual abuse on my journey. I passed through nine countries in my search for safety.
7. I first traveled from Guyana to Brazil, and then to Uruguay, where I requested asylum. I was denied asylum, and so I made my way back through Brazil, then to Peru, Colombia, and Panama. I was robbed various times in Peru and Colombia. While traveling through the jungles of Colombia and Panama, I saw the bodies of immigrants that had died on the

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 4 of 11
perilous journey. From Panama, I continued on to Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico. 8. On or around May 10, 2019, I arrived to Ciudad Acuña, Coahuila in Mexico at the border with the U. S. I was assigned a number and forced to wait in a makeshift encampment for over three months until it was my turn to present myself at the port of entry. It was very unsanitary and dangerous in the encampment, and I depended on the donations of churches to survive. On or about August, 22, 2019, I was finally processed at the Del Rio, Texas port of entry, where I asked for asylum. I was immediately detained by border officials and transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original photo-identity documents from Cuba. Frustration of Access to Parole
9. After being detained, I was taken to a very cold cell known as a hielera. I was then transferred to a detention center in Texas. About six days later, I was transferred to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Tutwiler, Mississippi. About a week after arriving to Tallahatchie, I was provided a credible fear interview (“CFI”). About a week after the interview, I was provided a positive determination of my CFI and related paperwork. Soon thereafter, I was provided an English language parole denial letter, before being given the opportunity to submit documents in support of a parole request. The stated reason for the denial was that ICE considered me a flight risk.
10. Since then, I have applied for parole three times at three different ICE detention centers, and all of my requests have been denied. Every denial letter checks off the same “flight risk” box as the stated reason for my denial, without offering any rationale or additional information about how ICE made this determination. My requests included extensive

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 5 of 11
evidence from my sponsor, letters of support from community members residing lawfully in the US, and evidence my good moral character. My cousin, who I have been close with my whole life, eagerly agreed to serve as my sponsor and to support me financially once released from detention. Alongside my cousin, I also have lawful permanent resident friends who have agreed to support me as I try to heal and fight my immigration case. Conditions of Confinement
11. While detained at Tallahatchie, I began experiencing a lot of anxiety and depression as a result of my confinement, poor conditions, and flashbacks to the abuse I experienced in Cuba. At Tallahatchie, I was never provided any medication for my depression or anxiety. I also regularly experienced nausea and claustrophobia, due to poor nutrition and close confinement with other detained immigrants.
12. In or about September 2019, I was transferred to Bossier Medium Security Facility (“Bossier”) in Plain Dealing, Louisiana. Bossier was a living hell. There, I experienced psychological and physical mistreatment. At Bossier, they would keep us indoors without access to the yard for months at a time, and we were not provided adequate nutrition. I was able to speak with a psychologist at Bossier, and they provided me with sleeping medication. However, the medication didn’t help due to the constant abuse by guards like the slamming of doors all night long and waking us up daily at 4:00 am.
13. When we requested medical treatment, we were told to drink water. When we got sick, often ibuprofen was the only medication provided to us. Those who were able to afford it would purchase ibuprofen at the commissary when refused medication. Officials withheld information about our cases, they yelled at us, and they put us in solitary confinement without just cause. Before I arrived at Bossier, some of my bunkmates had been sprayed

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 6 of 11
with tear gas and put in solitary confinement for requesting information about parole and refusing to eat their food. I met immigrants in Bossier who arrived healthy and left Bossier with serious mental health problems. 14. When I first arrived at Bossier, I was provided a small tube of toothpaste and soap that lasted me all of three days. After that, no more soap or toothpaste was provided. Those of us who have family in the U.S. to deposit money into our commissary accounts were able to purchase soap for about two U.S. dollars ($2) at commissary and toothpaste for approximately three U.S. dollars and eighty-five cents ($3.85). For those without money in their commissary account, they had no access to such necessities. 15. At mealtimes, the state and local inmates with whom we were incarcerated at Bossier served us meals, and they never used gloves to serve the food. The temperature at Bossier was also kept very low. At night especially, it was very cold, and sometimes the officers took away our blankets arbitrarily. Once, I was put in solitary confinement at Bossier because I complained that the food was too spicy and that the temperature was too cold in my dorm. In total, I was placed in solitary confinement four times without just cause while detained at Bossier. 16. I never had access to hand sanitizer at Bossier, even when people in the dorm were sick. In the bathrooms, there were no shower curtains. Officers and other detained men could watch me bathe. Weekly, we were each provided with a small roll of toilet paper, which would often not last the week. 17. In or about January 2020, I was transferred to River Correctional Center (“River”), in Ferriday, Louisiana. While detained at River, I had my final asylum hearing on or about January 10, 2020. I cannot afford legal representation, so I presented my case alone. I was

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 7 of 11
denied asylum. I decided to appeal the decision because the decision was not just, and I cannot return to Cuba. The appeal is currently pending. At River, conditions were unsanitary much like at Bossier. Detainees were responsible for cleaning the bathrooms, but we were never provided with adequate cleaning supplies or gloves. 18. In or about February 2020, I was transferred to Catahoula Correctional Center (“Catahoula”) in Harrisonburg, Louisiana. Shortly after arriving at Catahoula, while I was walking back to the dorm from the yard, I fell because the ground was wet from the rain. I fractured my right foot. My foot was very inflamed and in a lot of pain. I requested various times to be taken to the hospital. I was not taken to the hospital until about a week later. 19. When I was transported to the hospital, officers placed metal cuffs on my swollen foot and ankle. Since the hospitalization, I continue to suffer from severe pain. I request pain medication, but I am only provided ibuprofen. I am provided five to six pills of ibuprofen that are supposed to last me two to three days. This is not a sufficient amount to help ease the pain. I have been confined to a wheelchair for over a month. It is very hard for me to bathe, and I have to depend on the kindness of fellow detained men to take me to the dining hall to eat. 20. In recent weeks, my fear for my life has increased with the threat of coronavirus. Especially with my injury, I feel so weak and I worry I will be vulnerable once the virus enters the detention center. Already, someone in Catahoula Parish, where I am detained, has been confirmed to have died from the virus. 21. On the morning of March 24, 2020, officers told me they were taking me to the hospital for a routine check-up on my foot. They did not provide me with a mask, gloves, or any hand sanitizing wipes. I begged them not to take me out of the center without hygienic

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 8 of 11
protection because I am very afraid of being exposed to coronavirus. But they ignored my pleas. 22. During the ride to the hospital, the two officials transporting me were smoking cigarettes. Neither wore gloves or masks. One of the officers was coughing. They were both talking about the coronavirus on the drive. When I arrived at the hospital, I had to wait in a waiting room with ten to twelve patients, many of them coughing. I had a brief visit with the doctor and then was returned to Catahoula in the early afternoon. I am very scared thinking about all the people I was exposed to without any mask or other hygienic protection throughout the day, including officers, doctors, nurses, and sick patients. Such negligence worries me as it poses a great risk to my own health and the health of all of us at Catahoula, including staff. 23. Despite the threat coronavirus poses, ICE continues to transfer people in and out of Catahoula, and right now the dorms are completely full. In my dorm there are over one hundred (100) people, and there is less than a meter (3 feet) of space between each of us at any given time. We all breathe the same air. There are many people here who feel sick, who are coughing, and who have fevers. We are not provided the most basic sanitary supplies to keep ourselves safe. No hand sanitizer, masks, or gloves are provided to us. 24. I am in Dorm I. Everyone here fears that coronavirus has already entered the facility. On my way to the dining area, I have to pass Dorm B, which is under quarantine. Dorm B is not far from the solitary confinement cells. In those cells, we can see people are wearing masks. From Dorm B and from solitary, people yell to us that they are infected with coronavirus. The officers do not provide us information to quell our fears. They also do not provide us education related to coronavirus.

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 9 of 11
25. We are afraid to request medical care, because we are threatened with time in solitary confinement when we request to go to the medical unit. This happened to me about a month ago when I had a sore throat and fever. I requested to go to medical unit, and, as a remedy, I was told to gargle saltwater and provided ibuprofen. Afterwards, officers tried to take me to a solitary confinement cell, but I begged them not to because of my deteriorated mental state. I was allowed to return to the dorm.
26. I cannot remain detained here. As a survivor of sexual and physical abuse in a Cuban jail, being incarcerated in these neglectful facilities across the south has been very traumatic for me. Claustrophobia, flashbacks, depression, anxiety, and insomnia are now all regular parts of my daily life. I have to take daily medication to treat these issues. I live in constant fear of being returned to solitary confinement or deported to Cuba. Each passing day I am more terrified of being infected with coronavirus.
Plans if Granted Release on Parole
27. The most painful part of all of this is that I am aware of my eligibility for parole under ICE’s own directive. It causes me mental anguish to know that ICE has full authority to release me to the care of my proposed sponsor, my cousin who is a lawful permanent resident living in Florida.
28. If released, I plan to live with her and her husband in their home near Tampa, Florida. Upon my release, I plan to self-quarantine in their home to protect myself from COVID-19. I also plan to rely on their financial and emotional support. They plan to help me obtain the medical care I need to heal my fractured foot and to retain legal representation to continue fighting my case before the non-detained court. I am desperate to be released to my family and extended community.

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 10 of 11

VERIFICATION

I, Y

P T am the individual referred to as Y.P.T. in the attached declaration.

I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Jaclyn Cole
On behalf of witness Yudanys Perez Treto

Date: March 26, 2020

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 11 of 11
CERTIFICATION I, Jaclyn Cole, declare that I am proficient in the English and Spanish languages. On March 26, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 26, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-11 Filed 03/31/20 Page 1 of 9
EXHIBIT
9

Case 1:19-cv-01593-JEB Document 61-11 Filed 03/31/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF LAURA G. RIVERA, ESQ.
I, Laura G. Rivera, Esq., make this declaration on my personal knowledge and if called to testify, I could and would do so competently as follows:
1. I serve as the Director of the Southeast Immigrant Freedom Initiative of the Southern Poverty Law Center (“SIFI”). SIFI provides pro bono representation to detained immigrants in proceedings before the Executive Office for Immigration Review (“EOIR”) and U.S. Immigration and Customs and Enforcement (“ICE”). SIFI, established in 2017, has represented hundreds of individuals confined under the jurisdiction of the New Orleans ICE Field Office. Most SIFI cases focus on decarceration.
2. Most of the clients SIFI represents under the jurisdiction of the New Orleans ICE Field Office are confined inside the LaSalle Detention Center (“LaSalle”) in Jena, Louisiana, and Pine Prairie ICE Processing Center (“Pine Prairie”) in Pine Prairie, Louisiana. SIFI has also represented clients at the Adams County Correctional Center in Natchez, Mississippi, the River Correctional Center in Monroe, Louisiana, and the Winn Correctional Center in Winnfield, Louisiana.

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3. Since the outbreak of the novel coronavirus, SIFI staff have visited individuals inside Pine Prairie and LaSalle and spoken by phone to individuals at both detention centers. What SIFI staff have personally witnessed and learned in conversation with people inside these facilities reveals a grossly deficient response by the New Orleans ICE Field Office and private contractors to stem the spread of the virus. ICE has failed to give people inside LaSalle and Pine Prairie adequate information about how to protect themselves from contracting COVID-19. It has stymied their ability to practice social distancing by continuing to confine individuals in groups of dozens or larger. It has failed to increase their access to soap and fresh air. And when detained individuals express collective fear and concern, the New Orleans ICE Field Office and private contractors have responded with force and punishment.
4. The New Orleans ICE Field Office has the power and the duty to make determinations about whether to release non-citizens on parole on a case-by-case basis. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5. ICE has various other mechanisms to release people from its custody, including release on recognizance, conditional release on bond, and release on an order of supervision. These tools are available to ICE during its initial custody determinations or its redeterminations. Over the past two years, however, ICE has detained and denied release to thousands more people than it ever did before. This drastic turn is due to ICE having manipulated an algorithm in a computer risk assessment tool that it uses to generate recommendations about custody determinations.1 The result was the tool always recommended confinement. And while ICE agents may manually override the recommendation, advocates allege in a recent suit that ICE in New York accepted the recommendations more than 99 percent of the time.2
1 Compl. at 2, Velesaca v. Decker, Case No. 1:20-cv-01803 (S.D.N.Y. Feb. 28, 2020). 2 “[T]he full ramifications of the change to the algorithm are likely even broader: It is used nationally, but the FOIA suit only revealed data from New York.” Hannah Bloch-Wehba, “A
2

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5. Not even the COVID-19 pandemic and the attendant danger it poses inside congregates spaces has dampened the New Orleans ICE Field Office’s ironclad commitment to incarceration over sound alternatives to detention. It continues to deny humanitarian parole even to those in its custody who suffer from serious medical conditions.
6. Amid this crisis, ICE has failed to provide adequate legal access for people in its custody, whether in-person, by video teleconference (“VTC”), or by phone. SIFI’s primary mode of contact with confined individuals is through a free and confidential hotline through which they may reach us. Due to technology and staffing restrictions caused by the coronavirus, the hotline is now staffed Mondays and Thursdays instead of Monday through Thursday. It conducts the rest of its communications through a combination of in-person visitation, VTC, and other legal phone calls.
7. ICE’s COVID-19-related restrictions on in-person visitation have made it virtually impossible to conduct in-person visitation at Pine Prairie, where contact visitation is the only option. In “guidance” published on its website on March 23 and March 24, 2020, ICE offered conflicting messages on the type of personal protective equipment legal workers would have to bring for in-person visitation. On March 23, 2020, two subsections presented different requirements. One subsection stated: “non-contact legal visitation…will continue to be permitted. In order to safeguard visitors, detainees, and ICE and facility staff, official visitors may be subject to special screening and procedures. ICE may impose additional requirements, such as mandating that visitors wear protective equipment.” Another subsection stated that “all legal visitors” must “provide and wear personal protective equipment,” including “disposable vinyl gloves, N-95 or surgical masks, and eye protection[] while visiting any detention facility.”
lawsuit against ICE reveals the danger of government-by-algorithm,” The Washington Post (Mar. 5, 2020), available at: https://www.washingtonpost.com/outlook/2020/03/05/lawsuitagainst-ice-reveals-danger-government-by-algorithm/
3

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8. Up until then, I had provided SIFI staff with gloves, disinfectant wipes, and hand sanitizer, but not masks or eye protection. Not knowing which of the two statements would prevail, and out of an abundance of caution, that same day I mailed by overnight delivery several packages containing surgical masks to five SIFI staff members. The masks were not N-95 masks. Despite trying to procure them locally, I had been unable to, given the national shortage of those masks. Even if I had been able to procure them, SIFI’s use of N-95 masks would have taken those masks out of circulation for use by frontline health care providers, in contravention of the priorities urged by public health experts.
9. The next day, on March 24, 2020, ICE issued updated guidance:
10. In essence, then, ICE maintains that contact visitation is not allowed unless legal workers procure and use N-95 masks. Given that SIFI Pine Prairie legal teams or any other SIFI legal representatives cannot obtain N-95 masks for use due to the critical shortage of N-95 masks across the country, this new N-95 mask standard virtually ensures that no legal visitation will occur at Pine Prairie.
LaSalle Detention Center, Jena, LA 11. On March 20, 2020, the New Orleans ICE Field Office denied release on parole to two SIFI clients with medical complications who are confined inside LaSalle. The clients, asylum seekers, have both engaged in a hunger strike for about 140 days. Their strike is rooted in their
4

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frustration with the way the immigration courts have treated their pleas for asylum, and, as the duration of their confinement lengthens, their desperation at being locked up, separated from family. Before the novel coronavirus was declared a pandemic, SIFI filed initial parole requests. They contained evidence from a leading medical expert in detainee health attesting that they are medically vulnerable, and documents showing they pose no risk to public safety and no flight risk, having sponsors willing to host them upon release. ICE denied their parole requests.
12. After the outbreak, SIFI renewed these requests, citing to the COVID-19 pandemic as a changed circumstance, and adding new supporting evidence. Yet, again, ICE denied release. ICE has since begin to force feed them via nasogastric tubes. Given the available data on the high rates of transmission of the novel coronavirus and the most likely method of transmission through droplets entering the mucosa, force feeding medically fragile individuals inside likely contaminated detention center medical wings may compound their risk of infection.
13. Over the past week, SIFI staff have learned that ICE and facility staff have used force to respond to confined individuals’ clamor for their own health and safety. On March 26, 2020, a woman inside LaSalle called SIFI’s hotline and spoke with a SIFI helpline specialist. The day prior, she said, officials used tear gas against people in a different housing unit who protested after hearing rumors that someone was diagnosed with coronavirus. Due to the fumes, those individuals, the caller, and the nearly 80 others in her housing unit had to be evacuated. ICE since acknowledged the use of force incident, but said pepper spray and not tear gas was deployed.3
14. The March 26 caller also reported woefully deficient conditions. Though guards did tell her and others about the coronavirus, they did not provide materials for her and others to disinfect
3 Noah Lanard, “ICE Detainee Were Pepper-Sprayed During a Briefing on Coronavirus,” Mother Jones (Mar. 26, 2020), available at: https://www.motherjones.com/politics/2020/03/icedetainees-were-pepper-sprayed-during-a-briefing-on-coronavirus/.
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or clean their area. All but one toilet is broken, meaning close to 80 people must share one toilet. Staff told them they were out of toilet paper. When soap runs out, she said, it is not replaced until the next day. She also stated that she doubts the staff will tell persons detained if someone at the detention center has been diagnosed with coronavirus because it would be inconvenient for them.
15. The March 26 caller is herself suffering from a serious medical condition. She reported suffering from blood clots in her brain which cause significant pain. Though she requested medical attention about two weeks ago, she still has not been given medication.
16. Another caller from LaSalle reported symptoms consistent with COVID-19. He called on March 19, 2020, and complained of having a fever, chest pain, difficulty breathing while trying to sleep, and of coughing blood. He reported having been tested for the flu and having returned a negative result; however, to his knowledge, he had not been tested for coronavirus. The only treatment he reported receiving inside LaSalle was ibuprofen, syrup, and salt, which had not helped. He reported sharing a unit, HD, with others who had symptoms of coughing, fever, or shortness of breath. None had been removed from the unit. New people were being brought into the unit. Facility staff were not routinely using gloves. He reported that a different housing unit, OD, had been quarantined earlier for two to three weeks. His understanding was that some individuals inside that unit had been infected with the common flu.
Pine Prairie Detention Center, Pine Prairie, LA 17. ICE and its private contractors have also used force in the past week against individuals confined inside Pine Prairie. An SPLC legal worker received a call from a man inside the facility on March 24, 2020 as the incident unfolded. He told her that he could see some eight guards
6

Case 1:19-cv-01593-JEB Document 61-11 Filed 03/31/20 Page 8 of 9
wearing riot gear, and also the assistant warden. As at LaSalle, ICE confirmed the incident in a published report and explained ICE or its agents used pepper spray against those in its custody.4
18. The escalating dangers to people in ICE custody make it all the more important for SIFI staff to maintain contact with clients and potential clients in confinement. A SIFI legal worker conducted in-person visitation with several individuals at Pine Prairie on March 16 and March 20, 2020. She wore a mask and gloves both times. The first time, she observed that none of the facility staff or detained people wore masks or gloves. That day, she met with five individuals, seated a table about six feet from those she visited. The five individuals she visited independently gave her a consistent message: none had received any information about the coronavirus. They also mentioned lacking access to hand soap. When she asked them whether facility staff had changed any protocols in response to the pandemic, they said their conditions had not changed in any noticeable way. The five individuals had engaged in a hunger strike and had been subjected to solitary confinement. Three of them independently told her that while segregated inside one- or two-person cells, they were not given water to drink for almost a week, and they were forced to drink water from the toilet.
19. Her second visit, on March 20, 2020, was with five individuals confined inside a quarantined unit, Charlie Alpha. That time, some staff wore masks; others did not. As before, she sat at a six-foot table in the visitation area. Because the table is located in a common area, the visits were not private or confidential. The five men from the quarantine unit wore masks but no gloves. As they waited in the common area, they sat alongside other detained people awaiting visitation
4 Ben Fox, Philip Marcelo, and Nomaan Merchant, “Trump administration urged to free migrants as virus surges,” Associated Press (March. 25, 2020), available at: http://www.wboc.com/story/41938213/trump-administration-urged-to-free-migrants-as-virussurges.
7

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who did not have masks or gloves. They told her that they were only given masks when they left the dorm, not while they were inside of it. They also told her that detained individuals are still cleaning the dorms, and they are given neither masks nor gloves. Guards and ICE agents sometimes wear masks and gloves when they enter Charlie Alpha and sometimes do not. Several of them also reported to her that ICE continues to bring new people into confinement at Pine Prairie, putting those new people into the Charlie Alpha unit, a known high-risk unit.
20. The same legal worker had a VTC call with someone inside Pine Prairie on March 18, 2020. The man was wearing a mask and gloves. He told her that he and roughly sixty others inside his housing unit, Charlie Alpha, were under quarantine. Guards had told those in Charlie Alpha that someone inside that unit was suspected of having COVID-19. The suspected COVID-19 carrier had been removed from the Charlie Alpha unit. Everyone else remained inside Charlie Alpha. He told her that detained people inside Charlie Alpha were responsible for cleaning their own unit. They had access to some chemicals to clean with. However, they had no access to hand soap or hand sanitizer, only the limited soap given to them for showers. The guards had not taken any measures to space people out inside the unit.
21. Since the onset of this pandemic, SIFI and partner organizations have to date submitted three letters to ICE and facility administrators requesting information about their response plans and urged them to release people from custody. As of now, SIFI has received no response.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on March 29, 2020 in Decatur, Georgia.
___________________________________ Laura G. Rivera, Esq.
8

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 1 of 35
EXHIBIT
10

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 2 of 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro HEREDIA MONS et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF CARLOS FRANCO-PAREDES, M.D., M.P.H.

I, Carlos Franco-Paredes, M.D., M.P.H., declare under penalty of perjury under the laws

of the United States as follows:

I.

Overview of Background and Specializations.

1. My name is Dr. Carlos Franco-Paredes and I am an Associate Professor of Medicine at

the University of Colorado in the Department of Medicine, Division of Infectious

Diseases. I completed my internal medicine residency and infectious diseases

fellowship at Emory University School of Medicine.

2. In addition, I hold a public health degree in global health from the Rollins School of

Public Health at Emory University with a concentration on the dynamics of infectious

disease epidemics and pandemics. I also have twenty years of relevant clinical

experience. I participated in developing international guidelines for pandemic influenza

preparedness and response as well as a global health action plan with the World Health

Organization.

3. As an infectious diseases clinician, I have experience providing care to individuals in

a civil detention centers in the United States (US) and have performed medical forensic

1

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 3 of 35

examinations and medical second opinion evaluations for patients in the custody of the

Department of Homeland Security, Immigration and Customs Enforcement (ICE). I

have also provided direct care for many patients in ICE custody or incarcerated settings

living with HIV-infection at my current academic institution.

4. I present my Curriculum Vitae attached as Exhibit A. I have written and published

extensively on the topics of infectious diseases pandemics and epidemics, particularly

in influenza. I have 196 scientific publications in peer-reviewed scientific journals. I

teach a class at the school of medicine on caring for underserved populations including

immigrants and incarcerated populations.

II.

Overview of Documents Reviewed in Preparation of this Declaration.

5. In preparation for this declaration, I reviewed the following scientific references,

relevant medical documents and public health websites:

a. Johns Hopkins University. Coronavirus Resource Center Available at: https://coronavirus.jhu.edu/map.html. Accessed: March 21, 2020.

b. CDC-Interim Clinical Guidance for Management of Patients with Confirmed

Coronavirus

Disease

(COVID-19)

Available

at:

https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-

management-patients.html). Accessed: March 21, 2020.

c. CDC COVID 19 Response Team. Severe outcomes among patients with

coronavirus disease 2019 (COVID-19) – United States, February 12-March 16,

2020.

Available

at:

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. Accessed: March

21, 2020.

d. Rodriguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, VillamizarPeña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, VillamilGómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R; Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19). Electronic address: https://www.lancovid.org. Clinical, laboratory and imaging features of COVID-19: A systematic review and meta-analysis. Travel Med Infect Dis. 2020 Mar 13:101623. doi: 10.1016/j.tmaid.2020.101623. [Epub ahead of print].

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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 4 of 35

e. Foppian Palacios C, Opensahw JJ, Travassos MA. Influenza in US detention centers- the desperate need for immunization. N Engl J Med 2020; 382(9): 789792.

f. Novel Coronavirus Pneumonia Emergency Response Epidemiology Team. [The Epidemiological Characteristics of an Outbreak of 2019 Novel Coronavirus Diseases (COVID-19) in China]. Zhonghua Liu Xing Bing Xue Za Zhi. 2020;41(2):145–151. DOI:10.3760/cma.j.issn.0254-6450.2020.02.003.

g. Mart M, Ware LB. The long-lasting effects of the acute respiratory distress

syndrome.

Expert

Rev

Respir

Dis

2020;

https://doi.org/10.1080/17476348.2020.1743182.

h. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S, Huang H, Zhang L, Zhou X, Du C, Zhang Y, Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X, Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C, Zheng J, Song Y. JAMA Intern Med. 2020 Mar 13. doi: 10.1001/jamainternmed.2020.0994. [Epub ahead of print].

i. Koh GC, Hoenig H. How should the rehabilitation community prepare for 2019-nCOV? Arch Phys Med Rehabil 2020 Mar 16. Pii: S00039993(20)30153-2. Doi: 10.1016/j.apmr.2020.03.003. (Epub ahead of print].

j. Chen C, Zhou Y, Wen WD. SARS-CoV-2: a potential novel etiology of fulminant myocarditis. Herz 2020; March 5. https://doiorg/10.1007/s00059020-04909-z.

k. Hu H, Ma F, Wei X, Fang Y. Coronavirus fulminant myocarditis saved with glucocorticoid and human immunoglobulin. Eur Heat J 2020; Mar 16. [Epub ahead of print].

l. Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARSCoV2). Science 10.1126/scienceabb3221 (2020).

m. Russell CD, Millar JE, Baillie JK. Clinical evidence does not support corticosteroid treatment for 2019-nCoV lung injury. Lancet Infect Dis 2020; 395: 474-475.

n. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler G, Wu NH, Nitsche A, Müller MA, Drosten C, Pöhlmann S. SARS-CoV-2 Cell Entry Depends on ACE2 and TMPRSS2 and Is Blocked by a Clinically Proven Protease Inhibitor. Cell. 2020 Mar 4. pii: S0092-8674(20)30229-4. doi: 10.1016/j.cell.2020.02.052. [Epub ahead of print]

o. Tian S, Hu W, Niu L, Liu H, Su H, Xiao SY. Pulmonary pathology of early phase 2019 novel coronavirus (COVID-19) pneumonia in patients with lung cancer. J Thorac Oncol 2020; https://doi.org/10.1016;j.tho.2020.02.010.

p. Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J.The incubation period of coronavirus disease 2019 (COVID-19) from publicly reported confirmed cases: estimation and

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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 5 of 35

application. Ann Intern Med 2020; March 10, doi: https://doi/org/107326/M200504.
q. Korean Society of Infectious Diseases; Korean Society of Pediatric Infectious Diseases; Korean Society of Epidemiology; Korean Society for Antimicrobial Therapy; Korean Society for Healthcare-associated Infection Control and Prevention; Korea Centers for Disease Control and Prevention. Report on the Epidemiological Features of Coronavirus Disease 2019 (COVID-19) Outbreak in the Republic of Korea from January 19 to March 2, 2020. J Korean Med Sci. 2020 Mar 16; 35(10):e112. doi: 10.3346/jkms.2020.35.e112.

6. I also reviewed the following legal documents:
a. Declaration of S.U.R., Nicaraguan national detained at the Adams County Correctional Center;
b. Declaration of T.M.F., Cameroonian national detained at the LaSalle Detention Facility;
c. Southern Poverty Law Center webpage related to the instant litigation, available at: https://www.splcenter.org/seeking-justice/case-docket/heredia-mons-et-alv-mcaleenan-et-al;
d. ICE COVID-19 guidance available at: https://www.ice.gov/covid19; e. CDC guidance for correctional-detention facilities available at:
https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html#For_cases; and f. ICE – Detention Management guidance available at: https://www.ice.gov/detention-management.

III.

Formal Analysis.

A. Global and US-Specific Status of the SARS-CoV-2 (COVID-19) Pandemic.

7. The Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) is a newly

emerging zoonotic agent initially identified in December 2019 that as of the date of this

writing, has spread to 173 countries, causing 487,648 confirmed cases and 20,000

deaths. This viral pathogen causes the Coronavirus Disease 2019 (COVID-19).

Infection with COVID-19 is associated with significant morbidity and mortality,

especially in patients above 50 years of age and those with chronic medical conditions.

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8. As of March 26, 2020, there have been 69,246 confirmed cases of COVID-19 with 1,046 deaths reported in the US. There has been reports of confirmed cases in all US states and most states have already reported deaths. The epicenters in the US territory began in the Pacific Northwestern states and then to California and the Northeast, particularly New York City and New Jersey.
9. However, there is an increasing number of cases and deaths reported in the South. For example, as of March 26, 2020, the Louisiana Department of Health reports 2,305 confirmed cases and 83 deaths. (http://ldh.la.gov/Coronavirus/). The Mississippi State Department of Health reports 485 confirmed cases and 6 deaths. (https://msdh.ms.gov/msdhsite/_static/14,0,420.html#Mississippi).
10. Many ICE detention centers are located in the South and the rapid spread of this viral infection among these states is a concern that we need to monitor closely from an epidemiological perspective. Recent reports by the CDC show that 31% of COVID-19 cases, 45% of hospitalizations, and 80% of deaths occurred among adults over 65 years of age. Case-fatality in persons aged over 85 ranged from 10-27%, followed by 3-11% among persons aged 65 to 84, 1% among persons aged 55 to 64, and less than 1% among persons aged 20 to 54. B. Risk of Immigration Detention Centers Fueling the COVID-19 Pandemic.
11. I reviewed COVID-19 guidance by ICE and CDC recommendations for carceral settings. ICE’s proposed plans and interventions to halt the spread of COVID-19 are well delineated and useful. The CDC recommendations provide some guidance that is general and may take into account the realities of some of these detention centers.
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12. Both sets of guidance address social distancing in these centers, which appears to be difficult, if not impossible, in settings where many individuals are living in close quarters with a large number of beds per room or dorm. However, these recommendations and guidance are likely insufficient in case of a large outbreak due to this highly transmissible virus.
13. I have experience providing care to individuals in civil detention centers and I have performed medical forensic examinations and medical second opinion evaluations for patients in the custody of the Department of Homeland Security. Based on my conversations with patients, my own observations, and information that exists regarding the resources available within immigration detention facilities as detailed by the ICE Health Services Corps, it is my professional opinion that the medical care available in immigration detention centers cannot properly accommodate the needs of patients should there be an outbreak of COVID-19 in these facilities. Immigration detention centers are often poorly equipped to diagnose and manage infectious disease outbreaks. Many of these centers lack onsite medical facilities or 24-hour medical care.
14. In summary, I am concerned about the treatment of immigrants inside detention centers, which could make the current COVID-19 epidemic worse in the US by contributing to a high fatality rate among detained individuals and potentially spreading the outbreak into the larger community.
15. Immigration detention centers in the US are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes the Coronavirus Disease (COVID-19). Given the large population density of immigration detention centers, and the ease of transmission of this viral pathogen, the attack rate
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inside these centers may reach exponential proportions consuming significant medical care and financial resources.
C. Populations at Risk of Severe Disease and Death Due to SARS-CoV-2 Infection under ICE Custody.
16. According to the CDC, groups deemed to be at high risk of developing severe disease and dying from COVID-19 include those above 50 years of age and those with underlying medical conditions (regardless of their age). (See Table 1 below). These cases are also amplifiers or hyper-spreaders of the infection since they tend to have high viral concentrations in their respiratory secretions.
17. The clinical experience in China, South Korea, Italy, and Spain; and within the US has shown that 80% of confirmed cases tend to occur in persons 30 to 69 years of age regardless of whether they had underlying medical conditions. Of these, 20% develop severe clinical manifestations or become critically ill. Among those with severe clinical manifestations, regardless of their age or underlying medical conditions, the virus progresses into respiratory failure, septic shock, and multiorgan dysfunction requiring intensive care support including the use of mechanical ventilator support. The overall case fatality rate is 10-14% of those who develop severe disease. In China, 80% of deaths occurred among adults 60 years of age or older.

Table 1. Risk factors for developing severe disease and death

Age groups at high risk of developing severe >50 years (1% CFR)*

disease and dying without underlying medical 60-69 years (3.6% CFR)

conditions

70-79 years (8% CFR)

Groups with underlying medical conditions at -Cardiovascular Disease (congestive heart

high risk of dying regardless of their age

failure, history of myocardial infarction,

history of cardiac surgery)

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-Systemic Arterial Hypertension (high blood pressure) -Chronic Respiratory Disease (asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other pulmonary diseases) -Diabetes Mellitus -Cancer -Chronic Liver Disease -Chronic Kidney Disease -Autoimmune Diseases -Severe Psychiatric Illness ** -History of Transplantation -HIV/AIDS *CFR= Case Fatality Rate. This is an indicator of lethality used during outbreaks to identify the number of individuals who succumb out of those infected. ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020; 35(10): e112).
D. Potential Impact of the COVID-19 Behind the Walls of Immigration Detention Centers in the US.
18. There is a growing number of confirmed cases in the US, increasing numbers of hospitalizations and admissions to intensive care units, and many deaths. In this wave of the pandemic or in subsequent ones, it is likely the number of infected individuals will continue to augment. In the closed settings of immigration detention centers, where there is overcrowding and confinement of a large number of persons, networks of transmission become highly conducive to spread rapidly.
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19. There is evidence of substantial undocumented infection facilitating the rapid dissemination of novel coronavirus SARS-CoV-2 which is responsible for 79% of documented cases of COVID-19 in China. Once an individual is exposed to this virus from either a symptomatic individual (21% of cases) or from asymptomatic individuals (79% of cases), the shortest incubation period is 3 days with a median incubation period of 5.1 (95% CI 4.5 to 5.8 days). Overall, 97.5% of persons who develop symptoms do so within 11.5 days of the initial exposure. Most persons with COVID-19 who develop severe disease do so immediately after admission or within 3-5 days from their initial presentation and represent 53% of those requiring intensive care unit admissions and advanced supportive care. At my current institution, the two confirmed deaths occurred within 48 hours of admission to the hospital.
20. Given the high population density of jails, prisons, and juvenile detention centers, and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, that is shedding the virus enters a facility. For every person with the virus, they will infect more than 2 other people – whether they be incarcerated individuals or staff. Of those infected, one-fifth will get so ill that they require hospital admission, and about 10% will develop severe disease requiring treatment only available in the intensive care unit.
21. To illustrate the magnitude of this threat, a jail or prison that holds 1500 individuals can anticipate that 500-650 individuals may acquire the infection. Of these, 100 to 150 individuals may develop symptoms and may progress to develop severe disease requiring admission to the hospital, potentially to an intensive care unit. Of these, 5-10 individuals may die from respiratory failure, septic shock and multiorgan failure. If the
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approximately 150 individuals are not hospitalized, they will all be at high risk of death without access to proper equipment, such as ventilators. 22. Reducing the number of incarcerated individuals is necessary for effective infection control and sanitization practices that could dramatically reduce the burden COVID-19 will inevitably place on our health system. Urgent action is needed given the predicted shortage of medical supplies such as personal protective equipment, shortage of staff as medical personnel become ill themselves, and limited life-saving resources such as ventilators.
E. A COVID-19 Outbreak in a Detention Center Will Likely Overwhelm Local Healthcare Systems
23. Detention of any kind requires large groups of people to be held together in a confined space and creates the worst type of setting for curbing the spread of a highly contagious infection such as COVID-19. To contain the spread of the disease, infection prevention protocols must be meticulously followed.
24. The number of private rooms in a typical detention facility is insufficient to comply with the recommended airborne/droplet isolation guidelines. Another important consideration that complicates disinfection and decontamination practices is the ability of this novel coronavirus to survive for extended periods of time on materials that are highly prevalent in secure settings, such as metals and other non-porous surfaces. Current outbreak protocols require frequent disinfection and decontamination of all surfaces of the facility, which is exceedingly difficult given the large number of
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incarcerated individuals, frequent interactions between incarcerated individuals and staff, and regularity with which staff move in and out of each facility. 25. Responding to an outbreak requires significant improvements in staffing, upgrading medical equipment, substantial supplies including antibiotics, intravenous infusions, cardiac and respiratory monitors, devices for oxygen supply, and personal protection supplies among persons at high risk of severe COVID-19 disease. Additionally, this outbreak calls for highly trained staff to correctly institute, enforce isolation, quarantine procedures, and have training on the appropriate utilization of personal protective equipment. It is essential that nursing and medical staff be trained in infection control prevention practices, implementing triage protocols, and the medical management of suspected, probable and confirmed cases of coronavirus infection. 26. These same personnel would have to initiate the management of those with severe disease. Since these are closed facilities, the number of exposed, infected, and ill individuals may rapidly overwhelm staff and resources. This is particularly important in rural and semirural settings where many immigration detention centers are located, particularly in Southern States and where they may have contact with a limited number of surrounding medical centers. As a result, many patients would need transfer to hospitals near these facilities, likely overwhelming the surrounding healthcare systems, which are already functioning at full capacity caring for the general non-incarcerated community. 27. A large outbreak of COVID-19 in an immigration detention facility would put a tremendous strain on the medical system to the detriment of patients in the communities
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surrounding these centers. It is reasonable to anticipate that there will be the loss of additional lives that could have otherwise been saved. IV. Expert Opinion. 28. There is an urgent need to consider alternative strategies to dilute the community-based impact of an outbreak inside immigration detention centers. Therefore, it is my professional view, that releasing detainees/asylum seekers on parole from these centers constitutes a high-yield public health intervention that may significantly lessen the impact of this outbreak. In particular, targeting the release of persons in the age groups at risk of severe disease and death; and persons with underlying medical conditions, may lessen the human and financial costs that this outbreak may impose on ICE detention facilities nationwide.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 26th day of March 2020 at 12631 E 17th Ave, Aurora, CO 80045, United States.
______________________________ Carlos Franco Paredes, M.D., M.P.H. Associate Professor of Medicine Division of Infectious Diseases Department of Medicine Division of infectious Diseases Program Director Infectious Disease Fellowship Training Program, University of Colorado
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Exhibit A. Curriculum Vitae – Carlos Franco-Paredes MD, MPH

PERSONAL INFORMATION Carlos Franco-Paredes, M.D., M.P.H. Carlos.franco-paredes@cuanschutz.edu carlos.franco.paredes@gmail.com US Citizen

CURRENT PROFESSIONAL POSITION AND ACTIVITIES:
 Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus and Infectious Diseases (July 2018 - ongoing).
 Fellowship Program Director, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus (March 2019- ongoing).

EDUCATION 1989 -1995 1996-1999 1999-2002 1999-2002
1999 - 2002 2001-2002 2006

M.D. - La Salle University School of Medicine, Mexico City, Mexico Internship and Residency in Internal Medicine, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellowship in Infectious Diseases, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellow in AIDS International Training and Research Program, NIH Fogarty Institute, Rollins School of Public Health, Emory University, Atlanta, GA Masters Degree in Public Health (M.P.H.) Rollins School of Public Health, Emory University, Atlanta, GA, Global Health Track Chief Medical Resident, Grady Memorial Hospital, Emory University School of Medicine, Atlanta, GA Diploma Course in Tropical Medicine, Gorgas. University of Alabama, Birmingham and Universidad Cayetano Heredia, Lima Peru

CERTIFICATIONS 1999-Present Diplomat in Internal Medicine American Board of Internal Medicine (Recertification 11/2010-11/2020) 2001-present Diplomat in Infectious Diseases, American Board of Internal Medicine, Infectious Diseases Subspecialty (Recertification 04/2011-04/2021) 2005-present Travel Medicine Certification by the International Society of Travel Medicine 2007-present Tropical Medicine Certification by the American Society of Tropical Medicine – Diploma in Tropical Medicine and Hygiene (DTMH - Gorgas)

EMPLOYMENT HISTORY:  2002 - 2004 - Advisor to the Director of the National Center for Child and

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Adolescent Health and of the National Immunization Council (NIP), Ministry of Health Mexico; my activities included critical review of current national health plans on vaccination, infectious diseases, soil-transmitted helminthic control programs; meningococcal disease outbreaks in the jail system, an outbreak of imported measles in 2003-2004 and bioterrorism and influenza pandemic preparedness. I represented the NIP at meetings of the Global Health Security Action Group preparation of National preparedness and response plans for Mexico  2005 – 2011- Co-Director Travel Well Clinic, Emory University Emory Midtown Hospital  2004- 8/2009 -Assistant Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  3/2008-10/2009 Consultant WHO, HQ, Geneva, Influenza Vaccine  9/2009- 3/2011 Associate Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  1/2007 – 3/2011 Assistant Professor of Public Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA  4/2011 –5/2013 - Associate Professor of Public Health in Global Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA  2010 - WHO HQ Consultant for a 4-month-period on the Deployment of H1N1 influenza vaccine in the African Region, Jan to March 2010, Switzerland Geneva, WHO HQ 2010 sponsored by John Snow Inc. USAID, Washington, D.C.  2014-2015 - Consultant International Association of Immunization Managers, Regional Meeting of the Middle Eastern and North African Countries and Sub Saharan Africa, held in Durban South Africa, Sept 2014; and as rapporteur of the Inaugural Conference, 3-4 March 2015, Istanbul, Turkey.  3/2011- 5/2017 - Phoebe Physician Group –Infectious Diseases Clinician Phoebe Putney Memorial Hospital, Albany, GA.  5/2015 - 9/2015 - Consultant Surveillance of Enteric Fever in Asia (Pakistan, Indonesia, Bangladesh, Nepal, India) March 2015-October 2015.  June 19, 2017-June 31, 2018–Visiting Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver, Anschutz Medical Campus  June 2004- present - Adjunct Professor of Pediatrics, Division of Clinical Research, Hospital Infantil de México, Federico Gómez, México City, México. Investigador Nacional Nivel II, Sistema Nacional de Investigadores (12/2019); SNI III Sistema Nacional de Investigadores (1/2020-); Investigador Clínico Nivel E, Sistema Nacional de Hospitales
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HONORS AND AWARDS
1995 Top Graduating Student, La Salle School of Medicine
1997 Award for Academic Excellence in Internal Medicine, EUSM 1999 Alpha Omega Alpha (AOA) House staff Officer, EUSM 2002 Pillar of Excellence Award. Fulton County Department of Health and
Wellness Communicable Disease Prevention Branch, Atlanta GA 2002 Emory University Humanitarian Award for extraordinary service in
Leadership Betterment of the Human Condition the Emory University Rollins School of Public Health 2002 Winner of the Essay Contest on the Health of Developing Countries: Causes and Effects in Relation to Economics or Law, sponsored by the Center for International Development at Harvard University and the World Health Organization Commission on Macroeconomics Health with the essay "Infectious Diseases, Non-zero Sum Thinking and the Developing World” 2002 “James W. Alley” Award for Outstanding Service to Disadvantaged Populations, Rollins School of Public Health of Emory University May 2002. Received during Commencement Ceremony Graduation to obtain the Degree of Masters in Public Health 2006 Golden Apple Award for Excellence in Teaching, Emory University, School of Med 2006 Best Conference Award Conference, “Juha Kokko” Best Conference Department of Medicine, EUSM 2007 “Jack Shulman” Award Infectious Disease fellowship, Excellence in Teaching Award, Division of Infectious Diseases, EUSM 2007 Emerging Threats in Public Health: Pandemic Influenza CD-ROM, APHA’s Public Health Education and Health Promotion Section, Annual Public Health Materials Contest award 2009 National Center for Preparedness, Detection, and Control of Infectious Diseases. Honor Award Certificate for an exemplary partnership in clinical and epidemiologic monitoring of illness related to international travel. NCPDCID Recognition Awards Ceremony, April 2009. CDC, Atlanta, GA 2012 The ISTM Awards Committee, directed by Prof. Herbert DuPont, selected the article "Rethinking typhoid fever vaccines" in the Journal of Travel Medicine (Best Review Article) 2012 Best Clinical Teacher. Albany Family Medicine Residency Program 2018 Outstanding Educator Award – Infectious Diseases Fellowship, Division of Infectious Diseases, University of Colorado, Anschutz Medical Center, Aurora Colorado
EDITORSHIP AND EDITORIAL BOARDS 2007-Present Deputy/Associate Editor PLoS Neglected Tropical Disease
Public Library of Science
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2017-2018 2007-2019

Deputy Editor, Annals of Clinical Microbiology and Antimicrobials BMC Core Faculty International AIDS Society-USA -Travel and Tropical Medicine/HIV/AIDS

INTERNATIONAL COMMITTEES 2018- Member of the Examination Committee of the International Society of Travel Medicine.
Developing Examination Questions and Proctoring the Certificate in Traveler’s Health Examination

Proctor Certificate of Traveler’s Health Examination (CTH) as part of the International Society of Travel Medicine– 12th Asia-Pacific Travel Health Conference, Thailand 21-24, March 2019 Proctor Certificate of Traveler’s Health Examination (CTH), Atlanta, GA, September, 2019

PRESENTATIONS AT NATIONAL/INTERNATIONAL MEETINGS 2017- Meeting of the Colombian Society of Infectious Diseases, August 2017: Discussion of Clinical Cases Session, Influenza, MERS-Coronavirus, Leprosy, Enteric Fever 2018 – Cutaneous Mycobacterial Diseases, Universidad Cayetano Heredia, Lima, Peru, Mayo 2018 2018 – Scientific Writing Seminar, ACIN, Pereira, Colombia, August 2-4, 2018 2019 – First International Congress of Tropical Diseases ACINTROP 2019. March 21, 2019, Monteria, Colombia, Topic: Leishmaniasis 2019 – One Health Symposium of Zoonoses, Pereira Colombia, August 16-17, 2019, Topic: Zoonotic Leprosy 2019 – Congress Colombian Association of Infectious Diseases (ACIN), Topic: Leprosy in Latin America, Cartagena, Colombia, August 21-24, 2019 2019 – World Society Pediatric Infectious Diseases, Manila Philippines, November 7-9, 2019 Tropical Medicine Symposium: Diagnosis, Treatment, and Prevention of Leprosy. 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 26, 2019, Oral Transmission of Leprosy Symposium 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 27, 2019, Leprosy Situation in the Americas.

PUBLICATIONS BOOKS
Franco-Paredes C, Santos-Preciado JI. Neglected Tropical Diseases in Latin America and the
Caribbean, Springer-Verlag, 2015. ISBN-13: 978-3709114216 ISBN-10: 3709114217 Franco-Paredes C. Core Concepts in Clinical Infectious Diseases, Academic Press, Elsevier, March 2016. ISBN: 978-0-12-804423-0

RESEARCH ORIGINAL ARTICLES (clinical, basic science, other) in refereed journals: 1. Del Rio C, Franco-Paredes C, Duffus W, Barragan M, Hicks G. Routinely Recommending HIV Testing at a Large Urban Urgent-Care Clinic – Atlanta, GA. MMWR Morbid Mortal Wkly Rep 2001; 50:538-541.

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2. Del Rio C, Barragán M, Franco-Paredes C. Pneumocystis carinii Pneumonia. N Engl J Med 2004; 351:1262-1263. 3. Barragan M, Hicks G, Williams M, Franco-Paredes C, Duffus W, Del Rio C. Health Literacy is Associated with HIV Test Acceptance. J Gen Intern Med 2005; 20:422-425. 4. Rodriguez-Morales A, Arria M, Rojas-Mirabal J, Borges E, Benitez J, Herrera M, Villalobos C, Maldonado A, Rubio N, Franco-Paredes C. Lepidopterism Due to the Exposure of the Moth Hylesia metabus in Northeastern Venezuela. Am J Trop Med Hyg 2005; 73:991-993. 5. Rodriguez-Morales A, Sánchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. White Blood Cell Counts in Plasmodium vivax. J Infect Dis 2005; 192:1675-1676. 6. Franco-Paredes C, Nicolls D, Dismukes R, Kozarsky P. Persistent Tropical Infectious Diseases among Sudanese Refugees Living in the US. Am J Trop Med Hyg 2005; 73: 1. 7. Osorio-Pinzon J, Moncada L, Franco-Paredes C. Role of Ivermectin in the Treatment of Severe Orbital Myiasis Due to Cochliomyia hominivorax. Clin Infect Dis 2006; 3: e57-9. 8. Rodriguez-Morales A, Franco-Paredes C. Impact of Plasmodium vivax Malaria during Pregnancy in Northeastern Venezuela. Am J Trop Med Hyg 2006; 74:273-277. 9. Rodriguez-Morales A, Nestor P, Arria M, Franco-Paredes C. Impact of Imported Malaria on the Burden of Malaria in Northeastern Venezuela. J Travel Med 2006; 13:15-20. 10. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Is anemia in Plasmodium vivax More Severe and More Frequent than in Plasmodium falciparum? Am J Med 2006; 119:e9-10. 11. Hicks G, Barragan M, Franco-Paredes C, Williams MV, del Rio C. Health Literacy is a Predictor of HIV Knowledge. Fam Med J 2006; 10:717-723. 12. Cardenas R, Sandoval C, Rodriguez-Morales A, Franco-Paredes C. Impact of Climate Variability in the Occurrence of Leishmaniasis in Northeastern Colombia. Am J Trop Med Hyg 2006; 75:273-7. 13. Franco-Paredes C, Nicolls D, Dismukes R, Wilson M, Jones D, Workowski K, Kozarsky P. Persistent and Untreated Tropical Infectious Diseases among Sudanese Refugees in the US. Am J Trop Med Hyg 2007; 77:633-635. 14. Rodríguez-Morales AJ, Sanchez E, Arria M, Vargas M, Piccolo C, Colina R, FrancoParedes C. Hemoglobin and haematocrit: The Threefold Conversion is also Non Valid for Assessing Anaemia in Plasmodium vivax Malaria-endemic Settings. Malaria J 2007; 6:166. 15. Franco-Paredes C, Jones D, Rodriguez-Morales AJ, Santos-Preciado JI. Improving the Health of Neglected Populations in Latin America. BMC Public Health 2007; 7. 16. Kelly C, Hernández I, Franco-Paredes C, Del Rio C. The Clinical and Epidemiologic Characteristics of Foreign-born Latinos with HIV/AIDS at an Urban HIV Clinic. AIDS Reader 2007; 17:73-88. 17. Hotez PJ, Bottazzi ME, Franco-Paredes C, Ault SK, Roses-Periago M. The Neglected Tropical Diseases of Latin America and the Caribbean: Estimated Disease Burden and Distribution and a Roadmap for Control and Elimination. PLoS Negl Trop Dis 2008; 2:e300. 18. Tellez I, Barragan M, Nelson K, Del Rio C, Franco-Paredes C. Pneumocystis jiroveci (PCP) in the Inner City: A Persistent and Deadly Pathogen. Am J Med Sci 2008; 335:192-197. 19. Rodriguez-Morales AJ, Olinda, Franco-Paredes C. Cutaneous Leishmaniasis Imported from Colombia to Northcentral Venezuela: Implications for Travel Advice. Trav Med Infect Dis 2008; 6(6): 376-9.
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20. Jacob J, Kozarsky P, Dismukes R, Bynoe V, Margoles L, Leonard M, Tellez I, FrancoParedes C. Five-Year Experience with Type 1 and Type 2 Reactions in Hansen’s Disease at a US Travel Clinic. Am J Trop Med Hygiene 2008; 79:452-454. 21. Delgado O, Silva S, Coraspe V, Ribas MA, Rodriguez-Morales AJ, Navarro P, FrancoParedes C. Epidemiology of Cutaneous Leishmaniasis in Children and Adolescents in Venezuela. Trop Biomed. 2008; 25(3):178-83. 22. Franco-Paredes C, Lammoglia L, Hernandez I, Santos-Preciado JI. Epidemiology and Outcomes of Bacterial Meningitis in Mexican Children: 10-Years' Experience (1993-2003). Int J Infect Dis 2008; 12:380-386. 23. Pedroza A, Huerta GJ, Garcia ML, Rojas A, Lopez I, Peñagos M, Franco-Paredes C, Deroche C, Mascareñas C. The Safety and Immunogenicity of Influenza Vaccine in Children with Asthma in Mexico. Int J Infect Dis 2009; 13(4): 469-75. 24. Museru O, Franco-Paredes C. Epidemiology and Outcomes of Hepatitis B Virus Infection among Refugees Seen at US Travel Medicine Clinic: 2005-2008. Travel Med Infect Dis 2009; 7: 171-179. 25. Rodriguez-Morales AJ, Olinda M, Franco-Paredes C. Imported Cases of Malaria Admitted to Two Hospitals of Margarita Island, Venezuela: 1998-2005. Travel Med Infect Dis 2009: (1): 48-45. 26. Kelley CF, Checkley W, Mannino DM, Franco-Paredes C, Del Rio C, Holguin F. Trends in Hospitalizations for AIDS-associated Pneumocystis jiroveci Pneumonia in the United States (1986-2005). Chest 2009; 136(1): 190-7. 27. Carranza M, Newton O, Franco-Paredes C, Villasenor A. Clinical Outcomes of Mexican Children with Febrile Acute Upper Respiratory Infection: No Impact of Antibiotic Therapy. Int J Infect Dis 2010; 14(9): e759-63. 28. Museru O, Vargas M, Kinyua M, Alexander KT, Franco-Paredes C, Oladele A. Hepatitis B Virus Infection among Refugees Resettled in the US: High Prevalence and Challenges in Access to Health Care. J Immigrant Minor Health 2010; 29. Moro P, Thompson B, Santos-Preciado JI, Weniger B, Chen R, Franco-Paredes C. Needlestick injuries in Mexico City sanitation workers. Revista Panamericana de Salud Pública/Pan American Journal of Public Health 2010; 27 (6): 467-8. 30. Barragan M, Holtz M, Franco-Paredes C, Leonard M. The Untimely Misfortune of Tuberculosis Diagnosis at time of Death. Infect Dis Clin Pract 2010; 18(6):1-7. 31. Hochberg N, Armstrong W, Wang W, Sheth A, Moro R, Montgomery S, Steuer F, Lennox J, Franco-Paredes C. High Prevalence of Persistent Parasitic Infections in Foreign-born HIVinfected Persons in the United States. PLoS Neglect Dis 2011; 5(4): e1034. 32. Larocque RC, Rao SR, Lee J, Ansdell V, Yates JA, Schwartz BS, Knouse M, Cahill J, Hagmann S, Vinetz J, Connor BA, Goad JA, Oladele A, Alvarez S, Stauffer W, Walker P, Kozarsky P, Franco-Paredes C, Dismukes R, Rosen J, Hynes NA, Jacquerioz F, McLellan S, Hale D, Sofarelli T, Schoenfeld D, Marano N, Brunette G, Jentes ES, Yanni E, Sotir MJ, Ryan ET; the Global TravEpiNet Consortium. Global TravEpiNet: A National Consortium of Clinics Providing Care to International Travelers--Analysis of Demographic Characteristics, Travel Destinations, and Pretravel Healthcare of High-Risk US International Travelers, 2009-2011. Clin Infect Dis. 2012; 54(4):455-462. 33. Espinosa-Padilla SE, Murata C, Estrada-Parra S, Santos-Argumendo L, Mascarenas C, Franco-Paredes C, Espinosa-Rosales FJ. Immunogenicity of a 23-valent pneumococcal polysaccharide vaccine among Mexican children. Arch Med Res 2012;
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34. Harris JR, Lockhart SR, Sondermeyer G, Vugia DJ, Crist MB, D'Angelo MT, Sellers B, Franco-Paredes C, Makvandi M, Smelser C, Greene J, Stanek D, Signs K, Nett RJ, Chiller T, Park BJ. Cryptococcus gattii infections in multiple states outside the US Pacific Northwest. Emerg Infect Dis. 2013; 19 (10):1620-6. 35. Franco-Paredes C. Aerobic actinomycetes that masquerade as pulmonary tuberculosis. Bol Med Hosp Infant Mex 2014; 71(1): 36-40. 36. Chastain DB, Ngando I, Bland CM, Franco-Paredes C, and Hawkins WA. Effect of the 2014 Clinical and Laboratory Standard Institute urine-specific breakpoints on cefazolin susceptibility rates at a community teaching hospital. Ann Clin Microbiol Antimicrob 2017; 16(1): 43. 37. Kashef Hamadani BH, Franco-Paredes C, MCollister B, Shapiro L, Beckham JD, HenaoMartinez AF. Cryptococcosis and cryptococcal meningitis- new predictors and clinical outcomes at a United States Academic Medical Center. Mycoses 2017; doi: 10.1111/myc.12742. 38. Chastain DB, Franco-Paredes C, Wheeler SE, Olubajo B, Hawkins A. Evaluating Guideline Adherence regarding Empirical Vancomycin use in patients with neutropenic fever. Int J Infect Dis 2018; Feb 22. pii: S1201-9712(18)30052-3. doi: 10.1016/j.ijid.2018.02.016. PMID: 29477362 39. Parra-Henao G, Amioka E, Franco-Paredes C, Colborn KL, Henao-Martinez AF. Heart failure symptoms and ecological factors as predictors of Chagas disease among indigenous communities in the Sierra Nevada de Santa Marta, Colombia. J Card Fail 2018; Mar 26. pii: S1071-9164(18)30119-2. doi: 10.1016/j.cardfail.2018.03.007. 40. Vela Duarte D, Henao-Martinez AF, Nyberg E, Castellanos P, Franco-Paredes C, Chastain DB, Lacunar Stroke in Cryptococcal Meningitis: Clinical and Radiographic Features. J Stroke and Cerebrovascular Disease 2019; 41. Chastain DB, Henao-Martinez AF, Franco-Paredes C. A clinical pharmacist survey of prophylactic strategies used to prevent adverse events of lipid-associated formulations of amphotericin B. Infect Dis 2019; 42. Henao-Martínez AF, Chadalawada S, Villamil-Gomez WE, DeSanto K, Rassi A Jr, FrancoParedes C. Duration and determinants of Chagas latency: an etiology and risk systematic review protocol. JBI Database System Rev Implement Rep. 2019 Jul 22. doi: 10.11124/JBISRIR-D-1800018.
RESEARCH ORIGINAL ARTICLES AS COLLABORATOR (clinical, basic science, other) in refereed journals: 43. Benator D, Bhattacharya M, Bozeman L, Burman W, Cantazaro A, Chaisson R, Gordin F, Horsburgh CR, Horton J, Khan A, Lahart C, Metchock B, Pachucki C, Stanton L, Vernon A, Villarino ME, Wang YC, Weiner M, Weis S; Tuberculosis Trials Consortium. Rifapentine and Isoniazid Once a Week versus Rifampicin and Isoniazid twice a week for Treatment of Drug-susceptible Pulmonary Tuberculosis in HIV-Negative Patients: a Randomised Clinical Trial. Lancet 2002; 360:528-34. 44. Weiner M, Burman W, Vernon A, Benator D, Peloquin CA, Khan A, Weis S, King B, Shah N, Hodge T; Tuberculosis Trials Consortium. Low INH Concentrations and Outcome of Tuberculosis Treatment with Once-weekly INH and Rifapentine. Am J Rev Crit Care Med 2003; 167:1341-1347.
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45. Jasmer RM, Bozeman L, Schwartzman K, Cave MD, Saukkonen JJ, Metchock B, Khan A, Burman WJ; Tuberculosis Trials Consortium. Recurrent Tuberculosis in the United States and Canada: Relapse or Reinfection? Am J Respir Crit Care Med 2004; 170:1360-1366. Mendelson M, Davis XM, Jensenius M, Keystone JS, von Sonnenburg F, Hale DC, Burchard GD, Field V, Vincent P, Freedman DO; GeoSentinel Surveillance Network. Health risks in travelers to South Africa: the GeoSentinel experience and implications for the 2010 FIFA World Cup. Am J Trop Med Hyg. 2010; 82(6): 991-5. 46. Hagmann S, Neugebauer R, Schwartz E, Perret C, Castelli F, Barnett ED, Stauffer WM; GeoSentinel Surveillance Network. Illness in children after international travel: analysis from the GeoSentinel Surveillance Network. Pediatrics. 2010; 1 25(5): e1072-80. 47. Schlagenhauf P, Chen LH, Wilson ME, Freedman DO, Tcheng D, Schwartz E, Pandey P, Weber R, Nadal D, Berger C, von Sonnenburg F, Keystone J, Leder K; GeoSentinel Surveillance Network. Sex and gender differences in travel-associated disease. Clin Infect Dis. 2010; 50 (6): 826-32. 48. Jensenius M, Davis X, von Sonnenburg F, Schwartz E, Keystone JS, Leder K, Lopéz-Véléz R, Caumes E, Cramer JP, Chen L, Parola P; GeoSentinel Surveillance Network. Multicener GeoSentinel analysis of rickettsial diseases in international travelers, 1996-2008. Emerg Infect Dis. 2009; 15(11):1791-8. 49. Chen LH, Wilson ME, Davis X, Loutan L, Schwartz E, Keystone J, Hale D, Lim PL, McCarthy A, Gkrania-Klotsas E, Schlagenhauf P; GeoSentinel Surveillance Network. Emerg Infect Dis. 2009; 15(11): 1773-82. 50. Nicolls DJ, Weld LH, Schwartz E, Reed C, von Sonnenburg F, Freedman DO, Kozarsky PE; GeoSentinel Surveillance Network. Characteristics of schistosomiasis in travelers reported to the GeoSentinel Surveillance Network 1997-2008. Am J Trop Med Hyg 2008; 79(5): 729-34. 51. Greenwood Z, Black J, Weld L, O'Brien D, Leder K, Von Sonnenburg F, Pandey P, Schwartz E, Connor BA, Brown G, Freedman DO, Torresi J; GeoSentinel Surveillance Network. Gastrointestinal infection among international travelers globally. J Travel Med 2008; 1 5(4):221-8. 52. Davis XM, MacDonald S, Borwein S, Freedman DO, Kozarsky PE, von Sonnenburg F, Keystone JS, Lim PL, Marano N; GeoSentinel Surveillance Network. Health risks in travelers to China: the GeoSentinel experience and implications for the 2008 Beijing Olympics. Am J Trop Med Hyg 2008; 79(1): 4-8. 53. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Vaccine preventable diseases in returned international travelers: results from the GeoSentinel Surveillance Network. Vaccine 2010; 28(46):7389-95. 54. Esposito DH, Han PV, Kozarsky PE, Walker PF, Gkrania-Klotsas E, Barnett ED, Libman M, McCarthy AE, Field V, Connor BA, Schwartz E, MacDonald S, Sotir MJ; GeoSentinel Surveillance Network. Characteristics and spectrum of disease among ill returned travelers
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from pre- and post-earthquake Haiti: The GeoSentinel experience. Am J Trop Med Hyg 2012 Jan; 86(1):23-8. 55. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Latitudinal patterns of travel among returned travelers with influenza: results from the GeoSentinel Surveillance Network, 1997-2007. J Travel Med 2012; 19(1):4-8. doi: 10.1111/j.1708-8305.2011.00579.x.
REVIEW, EDITORIALS, CASE SERIES, CASE REPORT ARTICLES: 56. Franco-Paredes C, Jurado R. Ankylosing Spondylitis Fibrocavitary Lung Disease. Clin Infect Dis 2001; 32:1062. 57. Franco-Paredes C, Evans J, Jurado R. Diabetes Insipidus due to Streptococcus pneumoniae Meningitis. Arch Intern Med 2001; 161; 1114-15. 58. Franco-Paredes C, Blumberg H. Tuberculosis Psoas Abscess caused by Mycobacterium tuberculosis and Staphylococcus aureus: Case Report and Review. Am J Med Sci 2001; 321:415-17. 59. Jurado R, Franco-Paredes C. Aspiration Pneumonia: A Misnomer. Clin Infect Dis 2001;33:1612-3. 60. Del Rio Carlos, Franco-Paredes C. Bioterrorism: A New Public Health Problem. Sal Publ Mex 2001; 43:585-88. 61. Franco-Paredes C, Blumberg H. New Concepts in the Diagnosis of Latent Tuberculosis Infection. Consultant 2001; 41:1105-1121. 62. Franco-Paredes C, Bellehemeur T, Sanghi P, et al. Aseptic Meningitis and Retrobulbar Optic Neuritis Caused By VZV Preceding the Onset of PORN in a Patient with AIDS. AIDS 2002; 16:1045-1049. 63. Franco-Paredes C, Mehrabi D, Calle J, Jurado R. Night Sweats Revisited. Infect Dis Clin Pract 2002; 11:291-293. 64. Franco-Paredes C, Jurado R, Del Rio C. The Clinical Utility of the Urine Gram Stain. Infect Dis Clin Pract 2002; 11:561-563. 65. Franco-Paredes C, Agudelo C. Editorial Response: The Ever Expanding Clinical Spectrum of Tuberculosis. J Clin Rheumatol 2002;8:1-2. 66. Franco-Paredes C, Rebolledo P, Folch E, Hernandez I, Del Rio C. Diffuse CD8 Lymphocytosis Syndrome in HIV-infected Patients. AIDS Reader 2002; 12:408-13. 67. Franco-Paredes C. Human Immunodeficiency Virus Infection as a Risk Factor for Tuberculosis Infection and Clinical Disease. Infect Med 2002; 19:475-479. 68. Franco-Paredes C, Leonard M, Jurado R, Blumberg H. Tuberculosis of the Pancreas. Report of two cases and Review of the Literature. Am J Med Sci 2002; 323(1): 54-58. 69. DiazGranados C, Franco-Paredes C, Steinberg J. A Long Suffering Patient with New Abdominal Pain. Clin Infect Dis 2002; 34(9):1213-1214; 1267-1268. 70. Franco-Paredes C, Martin K. Extranodal Rosai-Dorfman Manifested in the Meninges. Southern Med J 2002; 95(9): 1101-1104. 71. Franco-Paredes C, Workowski K, Harris M. Infective Endocarditis-Endarteritis Complicating Coarctation of the Aorta. Am J Med 2002; 112(7):590-92. 72. Folch E, Hernandez I, Barragan M, Franco-Paredes C. Infectious Disease, Non-Zero Sum Thinking and the Developing World. Am J Med Sci 2003; 326:66-72.
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73. Franco-Paredes C, Santos Preciado JI. Parasitology Resources on the World Wide Web: A Powerful Tool for Infectious Diseases Practitioners. Clin Infect Dis 2003; 37:694-701. 74. Franco-Paredes C, Tellez I, Santos-Preciado JI. Monkeypox Virus Infection Appears in the Americas. Salud Publ Mex 2003; 45:428-430. 75. Franco-Paredes C, Del Rio C, Nava Frías M, Rangel Frausto S, Téllez I, Santos Preciado JI. Confronting Bioterrorism: Epidemiologic, Clinical, and Preventive Aspects of Smallpox. Sal Publ Mex 2003; 45:298-309. 76. Franco-Paredes C, Kuri-Morales P, Alvarez-Lucas C, Zavala E, Betancourt M, Nava-Frias M, Santos-Preciado JI. Severe Acute Respiratory Syndrome: A Global View of the Epidemic. Sal Publ Mex 2003; 45:211-220. 77. Huneycut D, Folch E, Franco-Paredes C. Atypical Manifestations of Infections in Patients with Familial Dysautonomia. Am J Med 2003; 115(6): 505-506. 78. Franco-Paredes C, Sanghi P. Progressive Multifocal Leukoencephalopathy. Infect Med 2003; 20(8):376. 79. Franco-Paredes C, Guarner J, McCall C, Mehrabi D, Del Rio C. Clinical and Pathological Recognition of Leprosy. Am J Med 2003; 114(3):246-7. 80. Franco-Paredes C, Lammoglia L, Santos Preciado JI. Historical Perspective of Smallpox in Mexico: Origins, Elimination, and Risk of Reintroduction due to Bioterrorism. Gac Med Mex 2004; 141:321-328. 81. Santos-Preciado JI, Franco-Paredes C. Influenza Vaccine in Childhood: a Preventive Strategy of National Priority. Salud Publ Mex 2004; 46:498-500. 82. Almeida L, Franco-Paredes C, Pérez LF, Santos JI. Meningococcal Disease: Preventive and Clinical Aspects. Salud Publ Mex 2004; 46(5):438-50. 83. Franco-Paredes C, Téllez I, Del Rio C. The Inverse Relationship between Decreased Infectious Diseases and Increased Inflammatory Disease Occurrence. Arch Med Res 2004; 35:258-26. 84. Arria M, Rodríguez-Morales A, Franco-Paredes C. Galeria Eco-epidemiológica de la Cuenca Amazónica. Rev Peru Salud Publ 2005; 22:236-240. 85. Franco-Paredes C, Lammoglia L, Santos-Preciado JI. The Spanish Royal Philanthropic Expedition to Bring Smallpox Vaccination to the New World and Asia in the 19th Century. Clin Infect Dis 2005; 41:1285-1289. 86. Diaz-Borjon A, Lim S, Franco-Paredes C. Multifocal Septic Arthritis: An Unusual Complication of Invasive Streptococcus pyogenes Infection. Am J Med 2005. 118(8): 924-925. 87. Franco-Paredes C, Rodríguez A. Lepromatous Leprosy. Infect Med 2005 88. Santos-Preciado JI, Franco-Paredes C. Tratamiento Acortado Estrictamente Supervisado (TAES o DOTS) Para Tuberculosis en Poblaciones Con Niveles Moderados de Farmacorresistencia: Perspectiva del Impacto Internacional. Rev Inv Clin 2005; 57:488-490. 89. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Severe Thrombocytopenia, Reply to Spinello et al. Clin Infect Dis 2005; 41:1211-1212. 90. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky P. Reply to Newton et al. Clin Infect Dis 2005;41:1688-1689. 91. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Occurrence of Thrombocytopenia in Plasmodium vivax malaria. Clin Infect Dis 2005;41:130131. 92. Franco-Paredes C, Rodríguez-Morales A, Santos-Preciado JI. Bioterrorism: Preparing for the Unexpected. Rev Inv Clin 2005; 57: 57(5):695-705.
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93. Franco-Paredes C, Tellez I, Del Rio C, Santos-Preciado JI. Pandemic Influenza: Impact of Avian Influenza. Salud Publ Mex 2005; 2: 47(2):107-9. 94. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky D. Neurotoxicity Associated To Misdiagnosis of Malaria. Clin Infect Dis 2005; 40:1710-1711. 95. Rodríguez-Morales A, Benitez J, Franco-Paredes C. Plasmodium vivax Malaria Imported from a rural Area Near Caracas Venezuela? J Trav Med 2006; 13:325-326. 96. Franco-Paredes C, Tellez I, Del Rio C. Rapid HIV Testing. Current HIV/AIDS Reports 2006; 3:169-75. 97. Franco-Paredes C, Hidron A, Steinberg JP. Photo Quiz: An 82-year-old Female from Guyana with Fever and Back pain. Chyluria due to Wuchereria bancrofti Infection. Clin Infect Dis 2006; 42 (9): 1297; 1340-1341. 98. Franco-Paredes C, Kozarsky P, Nicolls D, Dismukes R. Pelvic Echinococcosis in a Northern Iraqi Refugee. J Trav Med 2006. 13 (2): 119-122. 99. Franco-Paredes C, Santos-Preciado JI. Prevention of Malaria in Travelers. Lancet Infect Dis 2006; 6:139-149. 100. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42: 731-732. 101. Franco-Paredes C, Diaz-Borjon A, Barragán L, Senger M, Leonard M. The Ever Expanding Association between Tuberculosis and Rheumatologic Diseases. Am J Med 2006; 119:470-477. 102. Franco-Paredes C, Rouphael N, Del Rio C, Santos-Preciado JI. Vaccination Strategies to Prevent Tuberculosis in the New Millennium: From BCG to New Vaccine Candidates. Int J Infect Dis 2006; 10:93-102. 103. Tellez I, Calderon O, Franco-Paredes C, Del Rio C. West Nile Virus: A Reality in Mexico. Gac Med Mex 2006; 142:493-9. 104. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42:731-732. 105. Kieny MP, Costa A, Carrasco P, Perichov Y, Franco-Paredes C, Santos-Preciado JI, et al. A Global Pandemic Influenza Vaccine Action Plan. Vaccine 2006; 24:6367-6370. 106. Franco-Paredes C, Anna Von, Alicia Hidron, Alfonso J. Rodríguez-Morales, Ildefonso Tellez, Maribel Barragán, Danielle Jones, Cesar G. Náquira, Jorge Mendez. Chagas Disease: An Impediment in Achieving the Millennium Development Goals in Latin America. BMC Int Health Hum Rights 2007; 7:7. 107. Von A, Zaragoza E, Jones D, Rodriguez-Morales A, Franco-Paredes C. New Insights into Chagas Disease: A Neglected Disease in Latin America. J Infect Developing Countries 2007; 1:99-111. 108. Tellez I, Franco-Paredes C, Caliendo A, Del Rio C. Rapid HIV Test: A Primer for Clinicians. Infect Med 2007; 24:381-385. 109. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 1. General Aspects and Immunopathogenesis. Clin Cardiol 2007; 30:195-199. 110. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 2. Myocardial Manifestations of Parasitic Diseases. Clin Cardiol 2007; 30:218-222.
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111. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 3. Pericardial Manifestations of Parasitic Diseases and Other Cardiopulmonary Manifestations. Clin Cardiol 2007; 30:277-280. 112. Rouphael N, Talati N, Franco-Paredes C. A Painful Thorn in the Foot: Eumycetoma. Am J Med Sci 2007; 334:142-144. 113. Zimmer S, Franco-Paredes C. Efficacy of Nitazoxanide in the Treatment of Cyclospora cayetanensis in a Patient Allergic to Sulfas. Clin Infect Dis 2007; 44(3):466-7. 114. Kaplan R, Rebolledo P, Gonzalez E, Franco-Paredes C. An Unexpected Visitor: Mycobacterium kansasii Cutaneous Infection. Am J Med 2007; 120(5):415-6. 115. Seybold U, Blumberg H, Talati N, Franco-Paredes C. Hematogenous Osteomyelitis Mimicking Osteosarcoma due to Community Associated Methicillin-Resistant Staphylococcus aureus. Infect 2007; 35(3): 190-3. 116. Liff D, Kraft C, Pohlel K, Sperling L, Chen E, Franco-Paredes C. Nocardia Nova Aortitis Following Coronary Artery Bypass Surgery. J Am Soc Echo 2007; 20(5):537:e7-8. 117. Rodriguez-Morales AJ, Franco-Paredes C. Paracoccidiodomycosis (South American Blastomycosis) of the Larynx Mimicking Carcinoma. Am J Med Sci 2008; 335:149-150. 118. Franco-Paredes C. Filariasis due Loa loa is also a cause of Angioedema. Am J Med 2008; 121(10): e29. 119. Rodriguez-Morales A, Benitez J, Tellez I, Franco-Paredes C. Chagas Disease Screening among Latin American Immigrants in Non-endemic Settings. Travel Medicine and Infectious Disease 2008; 6:162-3. 120. Talati N, Rouphael N, Kuppali K, Franco-Paredes C. Spectrum of Central Nervous System Manifestations due to Rapidly Growing Mycobacteria. Lancet Infect Dis 2008; 8:390-8. 121. Rifakis P, Rodríguez-Morales A, Franco-Paredes C. Atypical Plasmodium vivax Malaria in a Traveler: Bilateral hydronephrosis, Severe Thrombocytopenia, and Hypotension. J Trav Med 2008; 15(2): 119-21. 122. Osorio-Pinzon J, Carvajal C, Sussman O, Buitrago R, Franco-Paredes C. Acute liver failure due to dengue virus infection. Int J Infect Dis 2008; 12: 444-445. 123. Jacob J, Franco-Paredes C. The Stigmatization of leprosy in India and its Impact on future approaches to elimination and control. PloS Neglected Tropical Diseases 2008; 30:e113. 124. Difrancesco L, Mora L, Doss M, Small J, Williams M, Franco-Paredes C. Short of Breath: Not short of diagnosis. J Hosp Med 2009; 4(1):60-7. 125. Whitaker JA, Edupuganti S, Del Rio C, Franco-Paredes C. Rethinking Typhoid Fever Vaccines: Implications for travelers and those living in endemic areas. J Travel Med 2009, 16(1): 46-52. 126. Franco-Paredes C, Hidron A, Lesesne J, Tellez I, Del Rio C. HIV-AIDS: Pretravel recommendations and health-related risks. Topics in HIV 2009; 17(1): 2-11. 127. Franco-Paredes C, Jacob JT, Stryjewska B, Yoder L. Two patients with leprosy and the sudden appearance of Inflammation in the skin and new sensory loss. PLoS Negl Trop Dis 2009; 3(9): e425. 128. Franco-Paredes C, Hidron A, Jacob J, Nicolls D, Kuhar D, Caliendo A. Transplantation and Tropical Infectious Diseases. Int J Infect Dis 2009; 14(3): e189-96. 129. Parker S, Vogenthaler N, Franco-Paredes C. Leishmania tropica Cutaneous and Presumptive Concomitant Viscerotropic Leishmaniasis with Prolonged Incubation. Arch Dermatol 2009; 145(9): 1023-6.
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130. DiazGranados C, Franco-Paredes C. HIV and Chagas Disease Co-Infection: An Evolving Epidemiologic and Clinical Association. Lancet Infect Dis 2009; 9:324-330. 131. Hidron A, Franco-Paredes C, Drenkard C. A rare opportunistic infection in a woman with systemic lupus erythematous and multiple skin lesions. Lupus 2009; 18 (12): 1100-3. 132. Franco-Paredes C, Kozarsky P. The Bottom Line. Am J Med 2009; 122(12): 1067-8. 133. Franco-Paredes C, Bottazzi ME, Hotez PJ. The Unfinished Agenda of Chagas Disease Control in the Era of Globalization. PLoS Negl Trop Dis. 2009 Jul 7; 3(7): e470. 134. Franco-Paredes C, Carrasco P, Del Rio C, Santos Preciado JI. Respuesta al Brote de Influenza A H1N1. Salud Publ Mex 2009; 51 (3): 183-186. 135. Franco-Paredes C. An Unusual Clinical Presentation of Posttraumatic Stress Disorder in a Sudanese Refugee. Journal of Immigrant and Minority Health 2009; 12(2): 267-9. 136. Kempker R, DiFrancesco L, Gorgojo A, Franco-Paredes C. Xantogranulomathous pyelonephritis caused by Community-Associated MRSA. Cases Journal 2009; 2: 7437. 137. Franco-Paredes C, Carrasco P, Santos-Preciado JI. The First Influenza Pandemic in the New Millennium: Lessons Learned Hitherto for Current Control Efforts and Overall Pandemic Preparedness. Journal of Immune Based Therapies and Vaccines 2009, 7:2. 138. Livorsi D, Qureshi S, Howard M, Franco-Paredes C. Brainstem Encephalitis: An Unusual Presentation of Herpes Simplex Virus Infection. J Neurol 2010; 257(9): 1432-7. 139. Del Rio C, Franco-Paredes C. The Perennial threat of influenza viruses: The Mexican Experience during the Influenza A (H1N1) 2009 Pandemic. Arch Med Res 2010; 40(8):641-2. 140. Santos-Preciado JI, Franco-Paredes C, Hernandez-Ramos MI, Tellez I, Del Rio C, Roberto Tapia-Conyer R. What have we learned from the Novel Influenza A (H1N1) Influenza Pandemic in 2009 for strengthening Pandemic Influenza Preparedness? Arch Med Res 2010; 40(8): 673-6. 141. Franco-Paredes C, Hernandez-Ramos MI, Del Rio C, Alexander KT, Tapia-Conyer R, Santos-Preciado JI. H1N1 Influenza Pandemics: Comparing the Events of 2009 in Mexico with those of 1976, and 1918-1919. Arch Med Res 2010; 40(8): 6730-6. 142. Graham A, Furlong S, Owusu K, Margoles L, Franco-Paredes C. Clinical Management of Leprosy Reactions. Infect Dis Clin Pract 2010; 18: 234-7. 143. Hidron A, Vogenthaler N, Santos-Preciado JI, Rodriguez-Morales AJ, Franco-Paredes C, Rassi A. Cardiac Involvement with Parasitic Diseases. Clin Microb Rev 2010; 23 (2): 1-27. 144. Franco-Paredes C, Zeuli J, Hernandez-Ramos I, Santos-Preciado JI. Preserving Idealism in Global Health. Global Health Prom 2010; 17(4): 57-60. 145. Franco-Paredes C. Reconstructing the Past of Poliovirus Eradication. Lancet Infect Dis 2010; 10(10): 660-1. 146. Franco-Paredes C, Ko AI, Aksoy S, Hotez PJ. A New Clinical Section in PLoS Neglected Tropical Diseases: NTD Photo Quiz. PLoS Neglect Trop Dis 2010; 4(9): e760. 147. Tellez I, Franco-Paredes C. Actinomycetoma. PLoS Neglect Trop Dis 2010; 4(9): e772. 148. Franco-Paredes C, Hernandez I, Santos-Preciado JI. Equidad en inmunizaciones en las poblaciones más vulnerables en Mesoamérica: Plan Regional del Sistema Mesoamericano de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S323-32.
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149. Santos-Preciado JI, Rodriguez MH, Franco-Paredes C. Equidad en Salud en America Latina: De la Oficina Panamericana de Salud Pública a la Iniciativa de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S289-94. 150. Rassi A Jr., Rassi A, Franco-Paredes C. A Latin-American woman with palpitations, a right bundle branch block, and an apical aneursym. PLoS Neglect Trop Dis 2011; 5(2):e852. doi: 10.1371/journal.pntd.0000852. 151. Gupta D, Green J, Franco-Paredes C, Lerakis S. Challenges in the Clinical Management of Blood-Culture Negative Endocarditis: the case of Bartonella henselae infection. Am J Med 2011; 124(3):e1-2. doi: 10.1016/j.amjmed.2010.09.022. 152. Franco-Paredes C. Health Equity is not only Healthcare Delivery. Lancet 2011; 377: 1238. 153. Franco-Paredes C, Santos-Preciado JI. Freedom, Justice, and the Neglected Tropical Diseases. PLoS Neglect Trop Dis 2011; 5(8):e1235. 154. Sellers B, Hall P, Cine-Gowdie S, Hays AL, Patel K, Lockhart SR, Franco-Paredes C. Cryptococcus gattii: An Emerging Fungal Pathogen in the Southeastern United States. Am J Med Sci. 2012; 343(6):510-1. doi: 10.1097/MAJ.0b013e3182464bc7. 155. Franco-Paredes C. Poliovirus eradication. Lancet Infect Dis 2012; 12(6):432-3. doi: 10.1016/S1473-3099(12)70102-0. 156. Franco-Paredes C, Ray S. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2012; 125(12):e3-4. doi: 10.1016/j.amjmed.2012.03.002. 157. Franco-Paredes C. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2013: 126(7):e17. doi: 10.1016/j.amjmed.2013.03.001. 158. Franco-Paredes C. Illness and Death in the Universe. Perm J. 2013; 17(4):90-1. 159. Hare A, Franco-Paredes C. Ocular Larva Migrans: A Severe Manifestation of an Unseen Epidemic. Curr Trop Med Rep 2014; 1: 69-73. 160. Franco-Paredes C. Recovering our Human Story. J Cosmology and Philosophy 2014;12: 210-213. 161. Powell DR, Patel S, Franco-Paredes C. Varicella-Zoster virus vasculopathy: The growing association between herpes zoster virus and strokes. Am J Med Sci 2014; 350(3):243-5. 162. Franco-Paredes C. The growing threat of leishmaniasis in travelers. Trav Med Infect Dis 2014; 12(6 Pt A):559-60. doi: 10.1016/j.tmaid.2014.10.020. 163. Franco-Paredes C, Sellers B, Hayes A, Chane T, Patel K, Lockhart S, Marr K. Management of Cryptococcus gattii meningoencephalitis. Lancet Infect Dis 2014; 15(3):348-55. 164. White C, Franco-Paredes C. Leprosy in the 21st Century. Clin Microb Rev 2014; 28(1): 80-94. 165. Carrasco P, Franco-Paredes C, Andrus J, Waller K, Maassen A, Symenouh E, Hafalia G. Inaugural conference of the International Association of Immunization Managers (IAIM), Istanbul Turkey, 3-4 March 2015; Vaccine 2015; 33(33):4047-50. 166. Franco-Paredes C, Rodriguez-Morales AJ. Unsolved matters in leprosy: a descriptive review and call for further research. Ann Clin Microbiol Antimicrob 2016; 15(1):33.
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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 28 of 35
167. Rodriguez-Morales AJ, Banderia AC, Franco-Paredes C. The expanding spectrum of modes of transmission of Zika virus: a global concern. Ann Clin Microbiol Antimicrob 2016; 15:13. doi: 10.1186/s12941-016-0128-2. 168. Khan MI, Katrinak C, Freeman A, Franco-Paredes C. Enteric Fever and Invasive Nontyphidal Salmonellosis – 9th International Conference on typhoid and Invasive NTS Disease, Bali, Indonesia, April 30-May 3, 2015. Emerg Infect Dis 2016; 22(4): doi: 10.3201/eid2204.151463. 169. Franco-Paredes C, Khan MI, Santos-Preciado JI, Gonzalez-Diaz E, Rodriguez-Morales AJ, Gotuzzo E. Enteric Fever: A Slow Reponse to An Old Plague. PLoS Negl Trop Dis 2016; 10(5):e0004597. doi: 10.1371/journal.pntd.0004597. 170. Rodriguez-Morales AJ, Villamil-Gomez WE, Franco-Paredes C. The arboviral burden of disease caused by co-circulation and co-infection of dengue, chikungunya and Zika in the Americas. Trav Med Infect Dis 2016; 14(3):177-9. doi: 10.1016/j.tmaid.2016.05.004. 171. Alvarado-Socarras JL, Ocampo-Gonzalez M, Vargas Soler JA, Rodriguez-Morales AJ, Franco-Paredes C. Congenital and neonatal Chikungunya in Colombia. J Pediatric Infect Dis Soc. 2016;5(3): e17-20. 172. Franco-Paredes C, Chastain DB, Ezigbo C, Callins KR. Reducing transmission of HIV in the Southeastern US Lancet HIV 2017; 4(3):e101-e102. 173. Franco-Paredes C, Chastain D, Marcos LA, Rodriguez-Morales AJ. Cryptococcal meningoencephalitis in AIDS: When to start antiretroviral therapy? Ann Clin Microbiol Antimicrob 2017; 16:9. 174. Khan MI, Franco-Paredes C, Ochiai RL, Mogasale V, Sushant S. Barriers to typhoid fever vaccine access in endemic countries. Research and Reports in Tropical Medicine; 2017; 8:37-44. 175. Franco-Paredes C, Chastain D, Taylor P, Stocking S, Sellers B. Boar hunting and brucellosis caused by Brucella suis. Trav Med Infect Dis 2017; S1477-8939(17): 30037-6. 176. Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcal Antigen Negative Cryptococcal Meningoencephalitis. Diagn Microbiol Infect Dis 2017; 89(2): 143-145. 177. Chastain DB, Henao-Martinez A, Franco-Paredes C. Opportunistic invasive fungal infections in HIV/AIDS: Cryptococcosis, Histoplasmosis, Coccidioidomycosis and Talaromycosis. Current Infect Dis Rep 2017; 19(10): 36. 178. Chastain DB, Kayla Stover, Franco-Paredes C. Adressing Antiretroviral TherapyAssociated Drug-Drug Interactions in Patients Requiring Treatment for Opportunistic Infections in Low-Income and Resource-Limited Settings. J Clin Pharmacol 2017; 57(11):1387-1399. 179. Franco-Paredes C. The Harmony of Disequilibrium. Permanente J. 2017; 22. doi: 10.712/TPP/17-067. 180. Franco-Paredes C, Henao-Martinez A, Chastain DB. A 27-year-old male with blurry vision, oral and nasal mucosal lesions, and a skin rash. Clin Infect Dis 2018; 181. Henao-Martinez AF, Olague N, Franco-Paredes C. Spontaneous Mycobacterium bolletti skin abscesses —an under recognized zoonosis from raw bovine milk. Trav Med Infect Dis 2018 Jan 29. pii: S1477-8939(18)30003-6. doi: 10.1016/j.tmaid.2018.01.003. PMID: 29477362.
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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 29 of 35
182. Franco-Paredes C, Henao-Martinez AF, Mathur S, Villamil-Gomez W. A Man Who Harvest Peanuts with Verrucous Lesions in his Right Index Finger. Am J Med Sci 2018; Mar; 355(3):e7. doi: 10.1016/j.amjms.2017.11.010. Epub 2017 Nov 22. No abstract available. PMID: 2954993 183. Henao-Martinez AF, Franco-Paredes C, Palestine A, Montoya G. Symptomatic acute toxoplasmosis in returning travelers. Open Forum Infect Dis 2018;5(4):ofy058. doi: 10.1093/ofid/ofy058. eCollection 2018 Apr. PMID: 29644250. 184. Steele GM, Franco-Paredes C, Chastain DB. Non-infectious causes of fever in adults. Nurse Pract 2018Apr 19; 43(4):38-44. doi: 10.1097/01.NPR.0000531067.65817.7d. 185. Henao-Martinez AF, Chastain DB, Franco-Paredes C, Treatment of cryptococcosis in nonHIV immunocompromised patients. Curr Opin Infect Dis 2018; PMID 29738314. 186. Chastain DB, Sam JI, Steele GM, Lowder LO, Franco-Paredes C. Expanding Spectrum of Toxoplasmosis gondii: Thymoma and Toxoplasmic encephalitis. Open Forum Infect Dis 2018; Jul 7;5(7):ofy163. doi: 10.1093/ofid/ofy163. eCollection 2018 Jul. 187. Kleinschmidt-DeMasters B, Hawkins K, Franco-Paredes C. Non-tubercular mycobacterial spinal cord abscesses in an HIV plus male due M. haemophilum. J Neuropathol Experim Neurol 2018; 77(6): 532-532. 188. Bruner KT, Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcus gattii complex infections in HIV-infected patients, Southeastern United States. Emerg Infect Dis 2018; 24(11): 1998-2002. 189. José A. Suárez, Lolimar Carreño, Alberto E. Paniz-Mondolfi, Francisco J. Marco-Canosa, Héctor Freilij, Jorge A. Riera, Alejandro Risquez, Andrea G. Rodriguez-Morales, Evimar Hernández-Rincón, Jorge Alvarado-Socarras, Gustavo Contreras, Maritza Cabrera, Rosa M. Navas, Fredi Díaz-Quijano, Tamara Rosales, Rosa A. Barbella-Aponte, Wilmer E. VillamilGómez, Marietta Díaz, Yenddy Carrero, Anishmenia Pineda, Nereida Valero-Cedeño, Cesar Cuadra-Sánchez, Yohama Caraballo-Arias, Belkis J. Menoni-Blanco, Giovanni Provenza, Jesús E. Robles, María Triolo-Mieses, Eduardo Savio-Larriera, Sergio Cimerman, Ricardo J. Bello, Carlos Franco-Paredes, Juliana Buitrago, Marlen Martinez-Gutierrez, Julio Maquera-Afaray, Marco A. Solarte-Portilla, Sebastián Hernández-Botero, Krisell Contreras, Jaime A. CardonaOspina, D. Katterine Bonilla-Aldana, Alfonso J. Rodriguez-Morales. Infectious Diseases, Social, Economic and Political Crises, Anthropogenic Disasters and Beyond: Venezuela 2019Implications for public health and travel medicine. Rev Panam Enf Inf 2018; 1(2):73-93. 190. Gharamati A, Rao A, Pecen PE, Henao-Martinez AF, Franco-Paredes C, Montoya JG. Acute Disseminated Toxoplasmosis with Encephalitis. Open Forum Infect Dis 2018; Oct 17; 5 (11):ofy259. doi: 10.1093/ofid/ofy259. 191. Franco-Paredes C, Rodriguez-Morales AJ, Luis A. Marcos, Henao-Martinez AF, VillamilGomez WE, Gotuzzo E, Bonifaz A. Cutaneous Mycobacterial Diseases. Clin Microb Rev 2018; 14; 32(1). pii: e00069-18. doi: 10.1128/CMR.00069-18.
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192. Henao-Martínes AF, Pinto N, Henao San Martin V, Franco-Paredes C, Gharamati A. Successful Treatment of Gonococcal Osteomyelitis with One Week of Intravenous Antibiotic Therapy. Int J STDs HIV 2019; 193. Reno E, Foster G, Franco-Paredes C, Henao-Martinez AF. Fatal fulminant hepatitis A in a US traveler returning from Peru. J Trav Med 2019. 194. Canfield G, C, Mann S, Zimmer S, Franco-Paredes C. A 31-Year-Old Micronesian Man with Shoulder Fungating Mass. Clin Infect Dis 2019; 195. Parra-Henao G, Oliveros H, Hotez PJ, Motoa G, Franco-Paredes C, Henao-Martínez AF. In Search of Congenital Chagas Disease in the Sierra Nevada de Santa Marta, Colombia. Am J Trop Med Hyg. 2019;101(3):482-483. doi: 10.4269/ajtmh.19-0110. PMID: 31264558. 196. Bonilla-Aldana DK, Suárez JA, Franco-Paredes C, Vilcarromero S, Mattar S, GómezMarín JE, Villamil-Gómez WE, Ruíz-Sáenz J, Cardona-Ospina JA, Idarraga-Bedoya SE, GarcíaBustos JJ, Jimenez-Posada EV, Rodríguez-Morales AJ. Brazil burning! What is the potential impact of the Amazon wildfires on vector-borne and zoonotic emerging diseases? - A statement from an international experts meeting. Travel Med Infect Dis. 2019:101474. doi: 10.1016/j.tmaid.2019.101474. 197. Henao-Martinez AF, Archuleta S, Vargas D, Franco-Paredes C. A Latin American patient with a left ventricular pseudoaneurysm presenting with progressive dyspnea and palpitations. Am J Med 2019; doi: 10.1016/j.amjmed.2019.10.006 198. Canfield GS, Henao-Martinez AF, Franco-Paredes C, Zhelnin K, Wyles D, Gardner EM. Corticosteroids for post-transplant Immune reconstitution syndrome in Cryptococcus gattii Meningoencephalitis: Case report and literature review. Open Forum Infect Dis 2019; 6(11): ofz460. Doi: 10.1093/ofid/ofz460. PMID: 31737740. 199. Kon S, Hawkins K, Franco-Paredes C. Intramedullary Spinal Cord Lesions in an Immunocompromised Host due to Mycobacterium Haemophilum. ID Cases 2019; 200. Franco-Paredes C, Rodriguez-Morales AJ, Henao-Rodriguez AJ, Carrasco P, SantosPreciado JI. Vaccination Strategies to prevent paralytic poliomielitis due to cVDPV2. Lancet Infect Dis 2019; 201. Motoa G, Pate A, Franco-Paredes C, Chastain D, Henao-Martinez Aj, Hojat L. Use of procalcitonin to guide discontinuation of antimicrobial therapy in patients with persistent intraabdominal collections: A case series. Case Rep Infect Dis 2019; 202. Murillo-Garcia D, Galindo J, Pinto N, Motoa G Benamu E, Franco-Paredes C, Chastain D, Henao-Martinez AF. Anaerobic bacteremias in left ventricular assist devices and advanced heart failure. Case Rep Infect Dis 2019; 203. Pate A, Franco-Paredes C, Henao-Martinez A. Cryptococcal meningitis: A comparison of clinical features and outcomes by HIV Status. Open Forum Infect Dis 2019; Oct 6 (Suppl 2): S629-S630. PMC6809090. 204. Franco-Paredes, C, Villamil-Gómez Wilmer E., Schultz, J, Henao-Martínez AF, ParraHenao, G, Rassi Jr. A, Rodriguez-Morales AJ, Suarez JA. A Deadly Feast: Elucidating the
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Burden of Orally Acquired Acute Chagas Disease in Latin America - Public Health and Travel Medicine Importance. Trav Med Infect Dis 2020; 205. Reno E, Quan N, Franco-Paredes C, Chastain DB, Chauhan L, Rodriguez-Morales AJ, Henao-Martinez A. Prevention of Yellow Fever in Travelers: An Update. Lancet Infect Dis 2020; 206. Franco-Paredes C, Griselda Montes de Oca Sanchez, Cassandra White. Global Leprosy Status 2020: Still Losing Touch. Ann Acad Med Singapore 2020; 206. Rodriguez-Morales AJ, Gallego V, Escalera-Antezana JP, Mendez CA, Zambrano LI, Franco-Paredes C, Suarez JA, Rodriguez-Enciso HD, Balbin-Ramon GH, Savio-Larriera E, Risquez A, Cimerman S. COVID-19 in Latin America: The implications of the first confirmed case in Brazil. Travel Med Infect Dis 2020; doi: 10.1016/j.tmaid.2020.101613. 207. Rodríguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, FrancoParedes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R, On behalf of the Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19) (www.lancovid.org). Clinical, Laboratory and Imaging Features of COVID-19: A systematic review and metaanalysis. Travel Med Infect Dis 2020;
BOOK CHAPTERS: Franco-Paredes C, Albrecht H. Anisakiasis (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C, Albrecht H. Visceral Larva Migrans (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Franco-Paredes C. The Post-travel Period. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 20092010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-34817. Franco-Paredes C. General Approach to the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7.
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Franco-Paredes C, Santos-Preciado JI. Introduction of Antimicrobial Agents in Poor-Resource Countries: Impact on the Emergence of Resistance. In: Antimicrobial Resistance in Developing Countries. Ed. Byarugaba DK, Sosa A. Springer Science & Business Media, 2010. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012. Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C, Hochberg N. General Approach to the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Hochberg N, Franco-Paredes C. Emerging Infections in Mobile Populations. In: Emerging Infections 9. Ed. Scheld WM, Grayson ML, Hughes JM. American Society of Microbiology Press 2010. ISBN. 978-1-55581-525-7. Franco-Paredes C, Chagas Disease (American Trypanosomiasis). In: Farrar J, Hotez P, Junghanss T, Kang G, Lalloo D, White NJ. Manson’s Tropical Medicine 23rd Edition, Elsevier, London, U.K., 2014. Franco-Paredes C, Keystone J. Fever in the Returned Traveler. In: Empiric, Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2014. Franco-Paredes C. Mycobacterium leprae (Leprosy). In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015 Franco-Paredes C, Albrecht H. Anisikasis In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015. Franco-Paredes C. Illness and Death in the Universe. In: Narrative Medicine Anthology. Ed: Tom Janisse. The Permanente Press, Oakland, California, Portland Oregon,
2016, pp. 23-25. ISBN: 978-0-9770463-4-8. Villamil-Gomez W, Reyes-Escalante M, Franco-Paredes C. Severe and complicated malaria due to Plasmodium vivax. In: Current Topics in Malaria. Ed: Rodriguez-Morales AJ. ISBN 978953-51-2790-1, Print ISBN 978-953-51-2789-5. InTechOpen 2016. Franco-Paredes C. Mycobacterial Infections of the Central Nervous System. In: The Microbiology of the Central Nervous System Infections. Ed. Kon K, Rai M. Elsevier 2018. ISBN 978-0-12-813806-9 Franco-Paredes C. Leprosy. In: Neglected Tropical Diseases. Drug Discovery and Development. Ed: Swinney D, Pollastri. Wiley-VCH Verlag GmbH & Co. KGaA, 2019. Franco-Paredes C, Henao-Martinez AJ. Legal Perspectives in Travel Medicine. In: Eds: Kozarksy P, Weinberg M. Yellow Book: Health Information for Travelers 2019-2020, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Prevención de la transmisión. In: Guerrero MI, Hernández CA y Rodríguez G Editores La lepra: una enfermedad vigente. Centro Dermatológico Federico Lleras Acosta Bogotá DC, Colombia. Panamericana Formas e Impresos. 2019. p. 309-322.
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FORMAL TEACHING Medical Student Teaching 2001 - 2002 Clinical Methods, Emory University School of Medicine

2001 - 2002 Clinical Instructor Harvey Cardiology Course, Emory University School of Medicine

2001 - 2002 Problem-Based Learning for Second year Medical Students, EUSM

2005 - 2011 Clinical Methods Preceptor, ECLH

2006 - 2008 Medical Spanish - Instructor for M2, EUSM

2006 - 2007 Directed Study on Social Determinants of Infectious Diseases for M2 students

(Lindsay Margolis and Jean Bendik), EUSM

2007 - 2011 Instructor - Global Health for M2 Students, EUSM

2007 - 2008 Presentation-Case Discussion – Social Determinants of Diseases – Coordinated

by Dr. Bill Eley – Emory School of Medicine New Curriculum.

2018-

Small Group: Parasitic Diseases, Microbiology Course for First Year Medical

Students, University of Colorado, Anschutz Medical Center.

2019-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz

Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

2019-

Class Global Health and Underserved Populations of the New SOM CU

Curriculum. Course Co-Director. Pilot Class (Jan 6-Jan 17, 2020).

2020-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz

Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

Graduate Program:

Training programs

2006-2011 Professor - GH511 (Global Health 511) International Infectious Diseases

Prevention and Control, Rollins School of Public Health

2009-2011 Professor – GH500 D – Key Issues in Global Health, Career MPH Program

2006-2011 Thesis Advisor to students Global Health Track – Hubert Department of Global

Health, Rollins School of Public Health of Emory University

2008-2011 Coordinator International Exchange between Rollins School of Public Health and

National Institute of Public Health, Cuernavaca, Mexico – Supported by the

Global Health Institute of Emory University

Residency and Fellowship Program:

2004-2011 Resident Report – Noon Conferences Emory Crawford Long Hospital and Grady

Memorial Hospital

2004-2011 Didactic Lectures on Parasitic Diseases and Non-tuberculous mycobacterial

diseases for Internal Medicine Residents and Infectious Disease Fellows

2005-2008 Coordinator Journal Club Infectious Disease Division

2005-2011 Travel Medicine Elective, Internal Medicine Residents (2 internal residents per

month)

2005

Grand Rounds – EUH - Department of Medicine: “Travel Medicine”

2006

Grand Rounds – ECLH – Department of Medicine: “Malaria”

2008

Grand Rounds - ECLH – Department of Medicine: “Leprosy”

2008-2011 Journal Club Coordinator, Internal Medicine Residency Program – ECLH

32

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 34 of 35

2009

Grand Rounds - EUH – Department of Medicine: “Leprosy a Modern Perspective

of an Ancient Disease”

2009

Grand Rounds – Pulmonary and Critical Care Division – Neglected Tropical

Diseases of the Respiratory Tract, June 16, 2009

2017

Grand Rounds – Leprosy, University of Colorado, Anschutz Medical Center,

Division of Infectious Diseases, December 2017

2017

Grand Rounds – Infections associated with Secondary Antiphospholid Syndrome,

University of Colorado, Anschutz Medical Center, Division of Rheumatology,

2018

Didactic Session – Travel Medicine (Pretravel and Postravel) Infectious Diseases

Fellowship Anschutz Medical Center, Division of Infectious Diseases

2017

Infectious Diseases Fellows Clinic, University of Colorado, Anschutz Medical

Center, IDPG.

2019

Invited Speaker: Travel Medicine, Pretravel/Postravel Care, Physician Assistant

Program, September 12, 2019, University of Colorado, Anschutz Medical Center

Other categories:

2000-2002 Physician Assistant Supervision during Fellowship/Junior Faculty, Emory

University

2004-2007 Mentoring of four College Students to enter into Medical School (Emory,

Southern University, and Dartmouth):

Lindsay Margolis 2004-Emory University

Michael Woodworth 2005 – Emory University

Peter Manyang 2007 – Southern University

Padraic Chisholm 2007 – Southern University/Emory University

2009-2011 Project Leader. Partnership – Emory Global Health Institute – University-wide -

Emory Travel Well Clinic and is titled Hansen’s disease in the state of Georgia: A

Modern Reassessment of an Ancient

Disease”. http://www.globalhealth.emory.edu/fundingOpportunities/projectideas.

php. Students: 5 MPH students (RN/MPH, MD/MPH)

2017-

Infectious Diseases Fellowship Program, University of Colorado, Anschutz

Medical Center. Teaching activities, Inpatient and outpatient (ID Fellows Weekly

Clinic)

2019-

Infectious Diseases Fellowship Program Director, University of Colorado, Aurora

Colorado

Supervisory Teaching: Ph.D. students directly supervised: Global Health, Rollins School of Public Health - PhD Task Force Member – 2007-2009 Residency Program: Emory University: Internal Medicine Residents and Infectious Disease Fellows Supervision – Inpatient Months – 3-4 months per year on Grady Wards. I participated in the presentation and discussion of clinical cases, and discussion of peer-reviewed journal with medical students, residents, and fellows. Overall evaluations: Outstanding Teacher. (Anna Von 2005-2006; Seth Cohen 2008, Susana Castrejon 2007; Lindsay Margoles 2007-2008; Jean Bendik 2006-2008; Meredith Holtz 2007-2008) University of Colorado, Anschutz Medical Center (since June 2017- present). Case discussion in infectious diseases during clinical rounds inpatient services (ID Gold, ID Blue, ID Orthopedics).

33

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 35 of 35 2004-2009 Thesis advisor – MPH Students – Hubert Department of Global Health – Concentration Infectious Diseases: Brenda Thompson 2004; Katrina Hancy 2004; Trina Smith 2006; Melissa Furtado 2007-2008; Oidda Museru 2008-2009; Hema Datwani 2010; Ruth Moro 2010; Talia Quandelacy 2010 2015 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins Schoolf of Public Health, Emory University, Atlanta GA 2017 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins School of Public Health, Emory University, Atlanta GA 2019 - Project Mentorship – Diffuse lepromatous leprosy. Undergraduate Student, University of Colorado, Boulder. Mikali Ogbasselassie. Project was carried out in Collaboration with the Dermatology Center of the Hospital General de Mexico. Poster presentation by Mikali Ogbasselassie September 22, 2019, UMBC, Baltimore, Maryland.
34

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 1 of 33
EXHIBIT
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Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 2 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro HEREDIA MONS et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF DR. PETER SCHARF I, Dr. Peter Scharf, declare under penalty of perjury under the laws of the United States as follows:     I. Overview 1. The instant expert declaration,1 executed after reviewing evidence-based materials regarding infectious disease contagion in correctional and detention facilities, concludes that the risks of COVID-19 infection are so substantial in facilities where Heredia Mons class members are detained, (particularly Louisiana centers), that release is required to ensure their protection from infection by the COVID-19 virus and its grave aftermaths. II. Professional background 2. My name is Dr. Peter Scharf. I am currently employed at the LSU School of Public Health as Professor of Public Health.2 I received my doctorate in l973 from Harvard University. Since then, I have pursued a career in criminal justice research, practice, and teaching at the University of California, Seattle University, American University, the University of

1 The contributions of Elizabeth Kitty and Carolyn Lilly are gratefully acknowledged. 2 Curriculum Vitae of Dr. Peter Scharf attached as Appendix A.

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New Orleans, Texas State University, Tulane University School of Public Health and Tropical Medicine, and currently, at the Louisiana State University School of Public Health.   3. I have experience working with (and publishing results about) several nationally visible cases including the Chicago Police Department Burge Case and the Crown Heights Civil Disorder Report, which directly involved the use of foreseeable risk concepts and ideas. Additionally, I have written about policing ethical standards and have authored a book on the use of deadly force, “The Badge and the Bullet,” which has been regarded by reviewers as a standard in the field, as well as seven other books and dozens of book chapters and journal articles.    4. At the National Police Foundation in Washington, D.C., I supervised the development of a police foreseeable risk management and prediction system (RAMS); supervised a national community policing project; initiated a project that integrated correctional and police policies; and helped assess the Crown Heights Civil Disorders. I founded the Center for Society, Law and Justice (“CSLJ”) at the University of New Orleans in l995. CSLJ evolved into a nationally prominent, criminal justice, technical-assistance provider supported by eight different cooperative agreements related to cyber-crime, ethics, correctional policies, technology integration, assessment of new technologies, performance metrics, and criminal justice integrity policies.    5. I was employed at Tulane University School of Public Health and Tropical Medicine as a Research Professor of Public Health and Tropical Medicine in the Global Systems and Development Department from June 2008 to August 2014. I conducted research on issues related to juvenile correctional reform (TYC), prison rape (PREA), homicide trends, and

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 4 of 33
assessments of efforts to avert violent crime trends through prevention and early intervention. I was named the Undergraduate Public Health Teacher of the Year in 2012 and 2013. Previously I was the Foundations of Excellence Award Winner at Texas State University (2008).    6. I am currently (since August 2014) a Professor of Public Health at the LSU School of Public Health. I have received funding from the United States Department of Justice for three major correctional initiatives working in cooperation with the Louisiana Department of Public Safety and Corrections regarding high-risk offenders in New Orleans, cooccurring disorders (project was winner of ACA innovation award) and a statewide recidivism study. I was the keynote speaker at the Educational Testing Service Conference in December 2016 in San Francisco regarding Education and Corrections. I teach courses at LSU School of Public Health related to public health perspectives related to Ethics, Violence, Foundations of Public Health, and a Doctoral Public Health Research seminar.   7. I serve as facilitator and analyst for the public safety team of New Orleans Mayor LaToya Cantrell’s public safety working group.  I conduct research and facilitate meetings with criminal justice leaders chosen by then Mayor Elect LaToya Cantrell, and I co-authored much of the final recommendations regarding the status of the New Orleans Police Department (“NOPD”), facilitated meetings with experts on the sub-committee team, and helped  develop NOPD leadership key performance indicators.   8. I testified before the U.S. House Judiciary Crime Subcommittee on four occasions (2007, 2012, 2014, and 2015) regarding violent-crime prevention.   I have had expert testimony accepted in U.S. District Court in three l983 (42) cases and have written expert reports related to the issue of foreseeability and crime in three recent cases (Hunter, Stuart,

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 5 of 33
Williams and Grant County jail). I have been qualified to present testimony in three 42 U.S.C. Section 1983 cases.  9. I authored a report which contributed to a favorable opinion by Seventh Circuit Judge Richard Posner in a case (Wittmer vs. Peters) regarding correctional officer hiring policies. I have testified or provided information, depositions, or reports on more than a dozen legal cases regarding correctional policies. I have worked for the Louisiana Department of Public Safety & Corrections regarding the assessment of five different cooperative agreements regarding recidivism reduction, co-occurring disorders, and statewide correctional policy. III. Case Issues 10. The present case involves a question as to whether the New Orleans Immigration and Customs Enforcement (“ICE”) Field Office should use its authority and discretion to release detained asylum-seekers in order to protect them from health risks caused by potential and actual exposure to the novel Coronavirus (COVID-19). 11. In preparing this declaration, I reviewed witness declarations, ICE procedures regarding parole, ICE COVID-19 guidance, evidence-based research regarding infections in corrections, and statistics related to parole out of the New Orleans ICE Field Office. IV. Factual and Evidentiary Basis for Expert Declaration 12. Under the authority of the New Orleans ICE Field Office, approximately 8,000 (8066) immigrants are detained in often former or newly constructed correctional facilities and managed by private correctional contractors, including GEO, CoreCivic, and La Salle

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Corrections:3 Below is a list of facilities where detained immigrants are held under the custody of the New Orleans ICE Field Office along with an estimate of their available capacity.
a. Adams County Detention Center Natchez, MS – 2,232; b. Allen Parish Detention – 200; c. Bossier Parish Medium Security Facility – 240; d. Catahoula Correctional Center – 835; e. Etowah County Detention Center – 360; f. Jackson Parish Correctional Center – 1,000; g. LaSalle ICE Processing Center –1,200; h. Natchitoches Parish Detention Center – 563; i. Pine Prairie ICE Processing Center – 1,094; j. Richwood Correctional Center – 1,000; k. River Correctional Center – 500; l. South Louisiana ICE Processing Center – 1,000; m. Tallahatchie County Correctional Facility – 575; and n. Winn Correctional Center – 1,500.
3 Hannah Gaber, Under Trump, private prisons are cashing in on ICE detainees, USA TODAY (Dec. 20, 2019), available at: https://www.usatoday.com/in-depth/news/nation/2019/12/19/ice-detention-privateprisons-expands-under-trump-administration/4393366002/ (accessed March 29, 2020).

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13. Parole probabilities are widely variable in the New Orleans ICE Field Office centers as suggested by the government’s data from Defendants’ March 2020 report4 below:

Facility

Grant/Total (Grant Rate %)

 ACDC  JACKSON  WINN  RICHWOOD  BASILE  RIVER  PINE PRAIRIE  LA SALLE  CATAHOULA  ALLEN PARISH

7/55 4/47 47/145 14/40 14/75 13/38 5/12 0/4 0/3 0/1

(12%) (30%) (32%) (35%) (19%) (34%) (41%) (0%) (0%) (0%)

14. It should be noted that in 2016 about 75 percent of parole applications were successful. In 2018, fewer than 2 percent were granted. In 2020, successful applications began to rise as indicated above.5 It should be noted that there is missing data in explaining differences in ICE detention parole outcomes, particularly in describing regional and detention center patterns of ICE risk assessment data.
15. The private corrections ICE contract detention vendors who manage ICE detention centers in the region work on contracts that retain them at fixed ratesapproximately $50.00 per day per detainee (more than twice the reimbursement rate paid to Louisiana parishes to house Louisiana Department of Public Safety & Corrections inmates). The facilities are crowded and staffed by employees who are paid from about $11.00 to $18.00 per hour. Many of the facilities are located in Central and Western Louisiana and are characterized by limited vocational, educational, and healthcare resources.

4 Data received from SPLC counsel on March 27, 2020, taken from Defendants’ most recent report. 5 Data estimates from CBS News, Plaintiffs’ Complaint and as provided by SPLC counsel.

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16. The research related to infectious disease and correctional facilities has built an evidence base regarding the epidemiological risks of allowing infectious disease processes to spread in the confined space of detention centers.
17. Research based upon the experience of correctional facilities faced with a range of infections suggests: a. The physical plant of most correctional facilities, including detention facilities is conducive to the spread of infectious disease.6 b. Forced correctional “sociation” (eating, counts, recreation, searches, holding cells, etc.) are often mechanisms of contagion7 along with risks of violence and disorder. c. Correctional Officers, staff, and visitors present inadvertent risks of infection to inmates.8 d. Commonly used mechanisms to control infection are difficult to implement given the constraints of almost all correctional facilities.9 e. Residents of correctional and detention centers have been found to present preconditions for prolonged and severe COVID-19 illness or death compared with other populations.10 f. Research using proven scientific methods related to detention centers has identified several documented underlying conditions among detained persons, and these comorbidities make detention center detainees especially vulnerable to severe COVID-19 disease and death.
6 Lauren-Brooke Eisen, How Coronavirus Could Affect U.S. Jails and Prisons, Brennan Center For Justice (March 13, 2020), available at: https://www.brennancenter.org/our-work/analysis-opinion/howcoronavirus-could-affect-us-jails-and-prisons (accessed March 29, 2020). 7 Scharf P. and Holt, N., “Empty Bars” Prison Journal, 1983. 8 American Correctional Association, http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Healthcare_Professional_Interest_Section/Copy_of _Coronavirus_COVID.aspx (accessed March 29, 2020). 9 See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (accessed March 29, 2020). 10 Lea Skene and Matt Sledge, Visits suspended at Louisiana prisons as advocates warn of spreading virus behind bars, THE ADVOCATE (March 13, 2020), available at: https://www.theadvocate.com/baton_rouge/news/coronavirus/article_fbdc7af8-64a4-11ea-bb780b1346e36acc.html (accessed March 29, 2020).

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g. Epidemiological research suggests the potential for increased mortality and prolonged mortality in correctional facilities compared with less dense and controlled environments.11
h. Louisiana has the highest per capita rate of COVID-19 incidence in the world.12 i. The areas in which the Louisiana ICE Detention Centers are located are
characterized by low medical access and public citizen health literacy.13 j. The managers hired by the region’s ICE contractors (The GEO Group and LaSalle
Corrections) have little training to cope with infectious disease.14 18. Several recognized health authorities have initiated “warnings” to correctional and
detention managers related to the health risks in correctional and detention facilities. a. The Brennan Center on March 13, 2020 outlined15 from the point of view of correctional research that the risks of widespread risks of COVID-19 infection in correctional and detention centers were substantial: i. Prisons and Detention Centers are often unhygienic environments. ii. Special populations (e.g. older inmates) within detection center and correctional environments have unique risks to avoid risks of infection and severe medical aftermaths following COVID-19 infection. iii. Separation of correctional and State healthcare systems pose unique risks to inmates and detainees. iv. Action strategies to reduce COVID-19 risks to inmates and detainees include release of individuals who are at risk. v. Comprehensive agency planning to reduce risks.
11 See footnote 5, supra. 12 See Andrew Capps, Louisiana experiences fastest COVID-19 case increase in the world in first few weeks, LAFAYETTE DAILY ADVERTISER (March 24, 2020), available at: https://www.theadvertiser.com/story/news/local/2020/03/24/covid-19-cases-louisiana-coronavirusspreading-faster-than-anywhere-world/2907504001/ (accessed March 29, 2020). See also Louisiana Governor’s Office of Homeland Security and Emergency Preparedness, COVID-19 Louisiana Case Info, https://gov.louisiana.gov/assets/docs/covid/govCV19Brief-2.pdf.. 13 Louisiana Public Health Briefing, 2019. 14 Site Visit with Geo regarding program effectiveness, October 2016. 15 See footnote 5, supra.

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b. The Centers for Disease Control and Prevention (CDC) on March 23, 2020, initiated a Guidance statement16 to Correctional and Detention facilities regarding the risks of COVID-19 infection in these settings suggesting: i. Residents live in settings where people are forced to eat, sleep, and have recreation in common areas. ii. Infection risks for COVID-19 infection include unmonitored staff entrance, visitors, health worker contact, etc. iii. Detention Centers with populations from all over the world present unique risks of COVID-19 infection. iv. There are limited opportunities for COVID-19 infection in many correctional facilities. v. Many residents in detention and correctional facilities have existing conditions that may exacerbate infections that occur.
19. ICE guidance defines standards for healthcare and wellness, applicable to contract detention centers, which offer some protections.17 However, the health services described fall short of needs anticipated in the advent of a COVID-19 infection affecting ICE contract detention centers in the New Orleans ICE Field Office region, particularly Louisiana.
V. Expert Opinions
A. First Opinion: There is an obvious, foreseeable risk of COVID-19 and the health threats it poses to people detained in these ICE facilities.
20. The current widespread outbreak of COVID-19 in the region, particularly Louisiana, combined with the unsanitary conditions in ICE detention centers, may result in a threat of irreparable harm, such as serious, prolonged illness and death, to the health and safety of detained individuals.
16 See footnote 8, supra. 17 https://www.ice.gov/doclib/detention-standards/2011/4-3.pdf

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21. The first U.S. case of COVID-19 was reported on January 20, 2020 in Washington State, which provided New Orleans ICE authorities with more than five weeks to put into place a prevention and control plan for COVID-19.18
22. In addition, past influenza outbreaks within the U.S. and other countries showcase the vulnerability of prison populations to disease and virus outbreaks. Thus, demonstrating a well-established and commonly known need for detention centers to take extra precautions to protect detained persons from disease.19
B. Second Opinion: The characteristics of the detention centers present a risk of serious illness and death from the contraction and transmission of COVID-19, including the fact that Louisiana has the highest rate per capita of infections, and that the populations inside these facilities have a heightened risk due to the density of population, heavy use, and unsanitary conditions. In addition, staff and in some situations, newly detained persons, who have been outside of the detention center, may serve as vectors for spreading the virus to the existing detained population who have limited ability to take necessary precautions.
23. Louisiana reported its first case of COVID-19 on March 9, 2020. Since then, the State has experienced among the worst outbreaks in the country and, as of March 27, 2020, Louisiana had 2,746 cases of novel coronavirus statewide including 119 deaths, with a corresponding case fatality rate of 4.3 percent.20 Per capita, this is one of the highest COVID-19 incidence rates in the U.S., a fact which further emphasizes the significant threat of serious illness or death that the disease poses to the public, and especially to vulnerable populations such as people who are held in detainment facilities.
18 Michelle Holshue, Michelle, First case of 2019 Novel Coronavirus in the United States, N. ENGL. J. MED.. (2020). 19 Stuart Kinner, Prisons and custodial settings are part of comprehensive response to COVID 19, The Lancet (March 17, 2020) 20 https://wgno.com/news/health/coronavirus/louisiana-covid-19-cases-jump-to-2746-119-deaths/

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24. Government-advised precautionary steps from the CDC to prevent the spread of COVID19 including “know how it spreads,” “avoid being exposed to this virus,” and “clean your hands often” are impossible for detained persons to follow within a carceral setting. There is little evidence that detention center management identified and implemented effective strategies to implement these precautionary steps.21
25. The ubiquitous warnings about COVID-19 infections and the tragic aftermaths that are foreseeable in confined environments with limited healthcare resources and public health training, should have raised concerns among DHS and ICE leaders and contract detection center managers.
26. Confined settings may have a higher reproduction number for the coronavirus. Detention centers, like early outbreaks in nursing homes and on cruise ships, are characterized by significant numbers of people in small, confined spaces. Early studies suggest22 that the reproduction numbers of COVID-19 in confined settings are significantly higher than community-level transmission, thus suggesting detention centers need to take extra precautions to ensure the safety of the detained population, staff and visitors.
C. Third Opinion: Contract detention center management and ICE-run detention facilities do not have the adequate medical care and cannot ensure reasonable safety, to the detained population, resulting in an increased vulnerability to COVID19 impacts. In addition, detained persons with underlying chronic conditions who experience an even greater risk of the consequences of COVID-19 are not segmented from the rest of the detained population.
21 See footnote 8, supra. 22 Kenji Mizumoto at al., Estimating the asymptomatic proportion of coronavirus disease 2019 (COVID19) cases on board the Diamond Cruise ship, Yokahama, Japan (2020), available at: https://www.eurosurveillance.org/content/10.2807/1560-7917.ES.2020.25.10.2000180

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27. The 2011 Operations Manual ICE Performance-Based National Detention Standards (PBNDS) and the 2019 National Detention Standards Update (NDS)23 define the standards for ICE detention centers. In both, standards detail the need for an emergency protocol, including a process for preventing infectious diseases and providing necessary medical care for detainees that are tailored to the detainees’ underlying medical conditions. Thus, not developing and enacting an emergency plan embodies a failure to fulfill the standards set forth by ICE for its detention centers.24
28. According to PBDNS, within two weeks of arrival at a detention center, all detainees should receive a comprehensive health assessment. This assessment identifies underlying risks, including chronic health challenges both physical and mental. Thus, the medical staff at ICE detention centers would be able to identify detainees who are more vulnerable to COVID-19 and more at risk of death.
29. There are existing standards and precedents for how detention centers decrease the negative impacts within detention centers of diseases like tuberculosis that have a high transmission rate. For example, under PBDNS standards, Tuberculosis (TB) Management includes working with state and local health departments and keeping detainees with suspected TB in isolated rooms with negative pressure ventilation. This suggests that detention centers are already familiar with a protocol that could have been enacted for COVID-19.25
30. From the information and documents that I have reviewed, the New Orleans Field Office does not appear to have implemented a protocol to deal with the COVID-19 pandemic.
23 See https://www.ice.gov/detention-standards/2011 and https://www.ice.gov/detentionstandards/2019#wcm-survey-target-id 24 Id. 25 Assumes tier with Randomized Controlled Trial procedures as described in www.CrimeSolutions.Gov.

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D. Fourth Opinion: There are foreseeable risks in terms of further outbreak and negative health impacts of COVID-19 on the detained population, unless efforts to release people are immediately undertaken.
31. The best epidemiological models available, based on valid scientific research, suggest widespread COVID-19 contagion in this region’s ICE facilities, which will lead to broad contagion unless release efforts are initiated in a rapid timeframe.
32. Regional practices involving the outsourcing of detention and jail services to contractors provide disincentives to release detainees even in the face of imminent and documented medical risks to people held in the custody of ICE subcontractors in the New Orleans ICE Field Office region.
33. The risks of this practice of outsourcing are widely known and should have been known by DHS and ICE leaders who had a duty to supervise sub-contractors in terms of their management of health risks and healthcare response duties.
34. The local community benefits of contract ICE detention centers, in this region with few resources, appear to result in political dynamics, along with national political sentiment, that likely contributed to low rates of ICE parole grants.
35. The reality that this region’s ICE facilities are located in remote or rural areas with limited resources and that medical resources proximate to the relevant ICE detention facilities leads to the conclusion that, were a COVID-19 infection to occur, widespread, long-term morbidity and mortality are more probable than not people detained by the New Orleans ICE Field Office.
E. Summary Opinion: Despite explicit guidelines and standards mandating proactive efforts to reduce disease in the facilities, the ICE has failed to respond to obvious warnings, risk factors and direct information to reduce the risks COVID-19 posed to people detained in their custody. The risks of irreparable harm posed to these individuals, including the more probable than not consequence of long-term illness

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and death, is in my opinion substantial and avoidable if appropriate release mechanisms are adopted in a rapid timeframe.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 29th day of March at New Orleans, Louisiana, United States.
_______________________________________ Dr. Peter Scharf Louisiana State University Health Sciences Center 2020 Gravier Street, 3rd Floor New Orleans, Louisiana pschar@lsuhsc.edu (504) 509-9800

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Appendix A – Curriculum Vitae of Dr. Peter Scharf
Profile
• Nationally recognized leader in corrections, criminal justice research, field
assessments, performance metrics, police deadly force training, and public health aspects of crime
• Founding Director of the Center for Society, Law and Justice • Noted media interviewee on topics ranging from education for at risk youth, ethics and
integrity, law enforcement and forensics, use of force, criminal violence and criminal justice technologies
• Certified as an expert witness in U.S. District Court in the police use of force • Demonstrated success in multi-million-dollar grant funding and execution • Worked with White House (Stuart Baker) assessment of Hurricane Katrina criminal
justice aftermath
• Testified before House Judiciary Crime Sub-Committee Four times( 2007; 2012; 2013;
2015)
• Foundations of Excellence Award Winner at Texas State University (2008) • Named President N.O. Schweitzer Fellowship Board of Directors • Winner of Tulane Public Health Outstanding Teaching Award (2012 and 2013) • Serve as facilitator and analyst for the Public Safety Transition team of New Orleans
Mayor LaToya Cantrell.
• Helped Organized and facilitated a national Opioid Conference in New Orleans (2019) • Presented a series of lecture on violent crime at the University of Alabama Medical
School
Dr. Peter Scharf Institute of Public Health and Justice
LSU School of Public Health 504-509-9800 (cell) 504-568-5703(office) Pschar@lsuhsc.edu

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Career Overview Dr. Peter Scharf is a nationally recognized leader in public health-focused criminology with
a specialized focus upon violent gun crimes. He was an invited speaker to the Nobel Public Service Seminar in Stockholm, Sweden. He has innovated new undergraduate course offerings related to public health perspectives related to violence and change processes related to public health. Multiple national media have interviewed him about his expertise related to violent crime. From 1992-95, Dr. Scharf served as Director of Training and Technical Assistance for the Police Foundation in Washington, DC. He assumed responsibility for the funding and management of a celebrated risk management technology and led a training and technical assistance unit that was dedicated to improving law enforcement practices in civil disorders, diversity training, ethics, the use of force, community policing and effective management practices. He participated in two major investigations: the Chicago Police Department Burge Torture Case, and the New York City Crown Heights Disorder Investigation. He was the founder of the Center for Society, Law and Justice (CSLJ) at the University of New Orleans. He led the creation of one of the highest quality criminal justice technology training, research, and implementation entities in the United States. Additionally, Dr. Scharf played an integral role in attracting several multi-million-dollar grants to CSLJ and its partner, the University of New Orleans. The Center for Society, Law and Justice won national recognition for its innovative programs supporting law enforcement and correctional professionals. From 19982008, the Center managed a $2.8 million-dollar national Bureau of Justice (DOJ) Assistance Cooperative Agreement to assist national law enforcement in implementing computer technologies. CSLJ completed several major cooperative agreements with DOJ/ODP including a national “Managing Law Enforcement Integrity” project, the “Art of Performance Measures”, a multi-million-dollar project related to Forensic Digital investigations, and a PSN project, which focused upon research related to the targeting of guns in high crime neighborhoods.
While at Texas State University and later Tulane University, he managed a PREA risk management project designed to identify and manage the risk of rape in prisons. He was the 2008 Foundations of Excellence Award Winner at Texas State University. While at Tulane University, Dr. Scharf was the named the Outstanding Public Health Teacher in both 2012 and 2013.

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Dr. Scharf testified four times before the House Judiciary Committee regarding murder trends and worked with Stuart Baker of the White House on an assessment of the federal Response to Hurricane Katrina. He is the author of several books, including Readings in Moral Education (1978), Growing Up Moral (1979), Towards a Just Correctional System (1980), Badge and the Bullet (1983), A Guide to Computer-Age Parenting (1984), Understanding the Computer-Age (1988), Law Enforcement Integrity: The state of the art (2006), and the Justice Information Sharing Performance Measures Guide (2008), each of which has had a strong impact on educational, public health and criminal justice practice. He has appeared in a number of national media entities in the past five years including NPR (6), NBC Evening News (3), PBS (3), Nightline, BBC (2) and CNN (3) and has been interviewed by the New York Times (4), Washington Post (2), and Wall Street Journal, Houston Chronicle (2), USA Today (6) and other national news entities. He was both treasurer and secretary of the FBI Citizen’s Academy Alumni Association since 2004. He was asked to testify four times before the House of Representatives (5/10/07; 6/24/12, 1/23/13 and 7/22/15.)
He recently was named a facilitator and analyst for the Public Safety (N.O.P.D. subcommittee) developing policies for Mayor Latoya Cantrell. Dr. Scharf Facilitates meetings with City Leaders charged with formulating law enforcement policy. He recently helped organized and helped facilitate a national Opioid Crisis conference in New Orleans (October 31, 2019) and will be presenting a series of lectures at the University of Alabama Medical School in November 2019.

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Professional Experience: University Employment
• 1992-1995: Police Foundation, Washington, D.C.: Director of Technology and Technical
Assistance: Managed and developed major service lines for leading police identified nonprofit organization in US. Directed community-based police training programs. Organized contacts with funding and other governmental agencies. Directed national technology, technical assistance, and training programs.
• 1995-2006: University of New Orleans, New Orleans, LA: Director, Center for Society,
Law and Justice: Directed funding, training, and research efforts of consortium working with major New Orleans and national law enforcement and correctional entities.
• 2006-2008: Texas State University, Research Professor Department of Criminal Justice:
Executive Director, Center for Society, Law and Justice at Texas State: Directed all operations of the Center, working with Texas State Criminal Justice faculty and U.S. Department of Justice.
• 2008-2014 Tulane University Research Professor of Public Health and Tropical Medicine,
Global Health Systems Department: Conducted research related to correctional reentry and public health, homicide trends and assessments of efforts to avert violent crime trends through prevention and early intervention.
• 2014-Current: Professor of Public Health, Institute of Public Health and Justice, LSU
School of Public Health: Conduct research regarding nationally-funded projects regarding jail reduction (MacArthur), status of 17-year-old offenders, co-occurring disorders, and evidence-based reentry.
Consulting:
• 1970 to 1979: Harvard University: Co-Project Director, Just Community Prison Project.
Managed innovative correctional rehabilitation program.
• 1973-1976: Biological Sciences Curriculum Study, Policy Board, Human Sciences,
Author, Rules (Human Sciences Curriculum).

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• 1976-1980: CBS Publishing: Acquisitions Editor, Trade and Education Titles: Acquired
human development, criminal, education justice and trade book manuscripts.
• 1979-1982: Public Policy Research Organization: Director, Police Uses of Deadly Force
Project. Directed use of deadly force research program.
• 1980-1986: Mc Graw Hill Book Company: Senior Acquisitions Editor for Computer-Based
Educational and Training Programs. Acquired and developed major computer-based training projects.
• 1986-1988: Institute for Scientific Information: Project Director. Director and author of
major tool-based middle school curriculum: Micro Works.
• 1989-1991: Wasatch Education Systems: National Manager for Criminal Justice Technical
Products. Managed market and product efforts for highly profitable computer market segment.
• 1994-Present: Civigenics: Founding Partner. Wrote Venture Plan document and developed
drug treatment mode for company with more than $80 million dollars in annual recurring revenue and sites in 30 states.
• 1996-1999: Simon and Schuster/Viacom-Invest: Consultant. Facilitated development of
web and criminal justice technologies and marketing of adult education materials.
• 1997-Present: Digital Concepts, Inc. (DCI): Partner. Wrote venture plan in a high-tech
company in late venture stage.
• 1999-2000: Institute for Forensics (Seattle, WA): Consultant. Helped design new web-
based technology to analyze homicide cases.
• 2001: California Peace Officers and Standards: Consultant related to values and policing.
• 2002-2003: State of Washington: Design of new parole risk assessment technology.

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• 2003-2005: Sierra Systems: Consultant for Criminal Justice Programs.
• 2003: FBI Citizen’s Academy Alumni Association: Secretary, Treasurer, Board Member.
• 2004: Achieve3000: Curriculum Subject Matter Expert for on-line moral curriculum
development.
• 2004-2007: International Association of Chiefs of Police Community Policing Consultant:
SMART Program-Juvenile Services Program.
• 2005-2006: White House (Stuart Baker): Assessment of federal response to Hurricane
Katrina.
• 2007-2012: International Association of Chiefs of Police Corrections:
Consultant on Law Enforcement Information Sharing.
• 2007-2008: Eckerd Youth Services: Consultant on Performance Measures Implementation.
• 2007: Developed Testimony for House Judiciary Committee-Crime Subcommittee-Bobby
Scott, Chair.
• 2008-2010: Texas Youth Commission Consultant on the evaluation of innovative
programming.
• 2010: Named to New Orleans Mayor Landrieu’s Criminal Justice Transition Team.
• 2011- 2012: Consultant to AMI kids (Tampa FLA).
• 2012-2013: Consultant to Hilliard Heintze (Chicago, Ill.)

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• 2012-4- Consultant to SAFY of America, (Delphos, Ohio)

• 2015-Developed testimony for Youth Violence Congressional Briefing
• 2016-17-Educational Testing Service Developed assessment strategy for longitudinal
HiSet prison research.

• 2019-Named National Communications Director for the National Prevention Science
Collaborative

2017-19: Facilitator and analyst for the Public Transition team/Working Group of New Orleans Mayor LaToya Cantrell. I conduct research and facilitate meetings with criminal justice leaders chosen by the Mayor Elect La Toya Cantrell and was named at prime facilitator for the NOPD sub-committee.
Consultant for the following Educational Police and Criminal Justice Agencies: White House Homeland Security Council, Seattle Police Department, FBI Academy, Mason County Sheriffs, King County Police, New York State Criminal Justice, Delaware River, Oregon State Police, AF, Austin Police, Gretna Police Department, Detroit Police Department, and IACP, CAL POST, LAPD, JPSO, Recovery School District, among others.

Education 1963 to 1967
1970 to 1973

University of Rochester A.B. (Honors) English
Harvard University
Ed. D. Learning Environments( Human Development and Sociology) Dissertation Advisor: Lawrence Kohlberg Dissertation: “Moral Atmosphere of the Prison”

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 23 of 33

Academic Appointments: 1973 to 1981 1982 to 1986 1986 to 1988 1989 to 1992 1994-1995 1995-2007 2006-2008
2008-2014

University of California at Irvine Assistant Professor of Social Ecology
Seattle University Associate Professor of Sociology
University of Pennsylvania Faculty Member in Computer Education/Criminal Justice
City University Faculty Member in Education, Business and Criminal Justice
American University, Society And Justice Program Adjunct Professor Law and Justice Program
University of New Orleans Associate Professor, Director CSLJ Department of Sociology
Texas State University, Research Professor, Criminal Justice, Foundations of Excellence Award
Tulane University

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 24 of 33

2014-current Selected Books

School of Public Health and Tropical Medicine, Global Health Systems and Development Department Research Professor of Public Health,
Secretary to Faculty Senate (20102011)
Outstanding Undergraduate Teacher (2012 and 2013))
LSU School of Public Health Professor of Public Health (Adjunct) Teach doctoral seminar, Ethics and Public Health, Violence, Doctoral Research Coordination, Grant Development, Research

Scharf, Peter, Readings in Moral Education, Minneapolis, Minnesota; Winston Press, 1978.
Scharf, Peter and William McCoy, Growing Up Moral, Minneapolis, Minnesota:
Winston Press, 1979.
Hickey, Joseph, and Peter Scharf, Towards a Just Correctional System, San Francisco, California: Jossey-Bass, 1980.
Scharf Peter and Arnold Binder, Badge and the Bullet, New York, New York:
Praeger Books, 1983.
Scharf, Peter, a Guide to Computer-Age Parenting, New York, New York: Mc Graw Hill, 1984.
Scharf, Peter, Understanding the Computer-Age, New York, New York: Macmillan, 1990.
Scharf, Peter: Law Enforcement Integrity: the state of the art. Washington, DC: Bureau of Justice Assistance, 2006.
Scharf, Peter, Geerken, Michael, et. al. Guide to Justice Information Systems Performance Measures Washington, DC: Bureau of Justice Assistance, 2008.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 25 of 33
Selected Journal Titles
Scharf, P. "Inmates Conception of Legal Justice," Journal of Criminal Justice and Behavior, 1976, 3, 101-123. Scharf, P. "Scoring Moral Reasoning," Journal of Contemporary Psychology, 1981, 26, 1, 23-26. Binder, A. and P. Scharf, "Police-Citizen Violent Encounters,” Annals of the American Academy of Political and Social Sciences, 1981 (2) 82-103. Scharf, P. "Prison Violence" Prison Journal, 1983, 51(2). Binder, A., and P. Scharf, "Deadly Force in Law Enforcement," Crime and Delinquency, 1982 (1) 1-18. Scharf, P. “Keeping Faith: Counseling in Correctional Settings," Counseling Psychologist, 1983, (9) 83-94. Scharf, Peter. "Kohlberg's Development as the Aim of Education, “Current Contents, 1987, 22, 31, 4. Scharf, Peter and Stone, William.” Examining the Correctional Technology Paradox,” Journal of the Institute of Justice, and International Studies (11), 2011. Scharf, Peter: “Perils of Policing Reform,” The Crime Report, October 2012. Scharf, Peter and Calderon, Jose, “After New Town: Controlling Gun Violence,” The Crime Report, January 2013. Scharf, Peter and Philippi, Stephen, 2015, “The New Orleans Police Department was Troubled Long before Hurricane Katrina.” The Conversation.
Selected Published Chapters
Scharf, P. "Police Officer Decision-Maker." In Baker, F. Ed. Determinants of Law Enforcement Policies, Lexington, Mass, Lexington Books, 1980.
Scharf, P. "Violence and Moral Values." In Hays, Solway and Roberts, Eds.
Violence and Society, Garden City, NY: Spectrum Press, 198.5.
Scharf, P. "Moral Education of the Juvenile Delinquent." In Manly-Casmir and Cochrane, Eds. Moral Education: The Practical-Domain, New York, NY: Praeger Books, 1986.
Scharf, P. "Law and the Child's Legal Conscience." In Sprague, Ed. Advances in Law and Child Development, Greenwich, Connecticut: JAI Press, 1986. Scharf, P. "Justice and the Criminal Offender's Moral Claim to Justice,” L. Morain Correctional Education, Ottawa, NJ: Canada Press, 1992.
Scharf, P. Foreword, in Osofsky, J. Children and Violence, Princeton, NJ: Alblex, 1997; 2003.
Scharf, P. Foreword to Unter, K. Melding Police and Policy to Dramatically Reduce Crime in the City of New Orleans: A Study of the New Orleans Police Department, 2009.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 26 of 33
Technical Reports, Published Presentations, Training Research, Policy Publications
Rules: Interdisciplinary module Biological Sciences Curriculum Study (1982). Police Use of Deadly Force-UC Irvine (1982). "Shoot/Don’t Shoot” HBO Video-DBA (1984).
Creating a Correctional Just Community-Harvard U (1985). Micro Works: Tools for Learning-Institute for Scientific Information (1990).
At Risk Life skills: Computer Based Module-Wasatch Educational Systems (1992). Burge Torture Case Analysis- Police Foundation-Chicago PD.
Report to the Governor Regarding the Crown Heights Civil Disorder-NY State (1993). * US Customs Cultural Diversity Curriculum- Police Foundation (1994). Ethics and Oregon State Police-Police Foundation (1995). * Risk Assessment Management System-Police Foundation (1995). * Framework for Community Policing-BJA (1995). * BJA Goals and Directions-BJA (1997). * Managing the Use of Force-LA P.O.S.T (1997). Community Policing Training-CSLJ (1996). Police Leadership and Management-CSLJ (1997). Managing Criminal Justice Technologies Training Curriculum-Bureau of Justice Assistance (l999; 2003). * Technical Assistance for Integrating Criminal Justice Technologies-Bureau of Justice Assistance (1999). Technical Assistance Needs for Homicide Investigators-Institute for Forensics with Robert Keppel Bureau of Justice Assistance (2000). Power Users Criminal Justice Training Curriculum-Bureau of Justice Assistance (l999). * Crack Pipe Study-New Orleans Police Foundation (2001). *
Bail Study-New Orleans Police Foundation (2002). *
Privacy and Criminal Justice Databases Bureau of Justice Assistance (2002). * Assessing Integrated Criminal Justice Systems-Bureau of Justice Assistance (2003). *
Technology in Small Agencies –Bureau of Justice Assistance (2003).
Forensic Digital First Responders-National Institute of Justice (2004). *
Assessment of Austin SECURES® Implementation National Institute of Justice (2004). * SECURES Training Guide, National Institute of Justice (2004). *
N.O.P.D. Retention Study, CSLJ-Police Foundation (2004). *
Consequences of Partially Integrated Information Systems, Bureau of Justice Assistance (2004). *

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 27 of 33
Performance Measure in Information Technology, Bureau of Justice Assistance (2005). * Assessment of EDLA PSN Project, PSN (2005). * The Art of IT Performance Measures, Bureau of Justice Assistance (2006). *
Managing Law Enforcement Integrity, Bureau of Justice Assistance (2006). *
Business Process Re-Engineering, Bureau of Justice Assistance-White Paper
(2006). *
Crime and Education, Project Inkwell (2007). *
Assessment of Hampton and Newport News SECURES® Implementation, National Institute of Justice (2007). *
Technology and Murder: U.S. DOJ Global IJIS Institute, George Washington
University (2007). *
PREA Final Report, Bureau of Justice Assistance (2008).
Assessing the Potential of Correctional Technologies, Moelis and Company (2009). Between Corrections and Law Enforcement: The International Association of Chiefs of Police (2010).
Youth Focused Policing: The International Association of Chiefs of Police (2011) Assessment of the Circle of Courage Mentoring Program: Tulane University School of Public Health and Tropical Medicine (2010).
At Risk Youth Strategic Plan for the NO (LA) Recovery School District: Tulane University School of Public Health and Tropical Medicine (2011).
An Analysis of N.O.P.D. Police Attitudes and Values: Tulane University School of Public Health and Tropical Medicine (2012).
Assessment of the CPI Project- LSU School of Public Health (2014)
Study of Correctional Population Trends in St. Tammany Parish LSU School of Public Health (2014). Performance Measures for Child Welfare Services: Tulane University School of Public Health and Tropical Medicine (2012).
Predicting Murder Trends: US House Judiciary Committee: (2012). *
After New Town Presentation to House Crime Sub-committee (2013). * Incarceration Rates in St. Tammany Parish (Presented to the St. Tammany Leadership Council (2014).
School Mass Shootings: Presented to the National Associates of School Safety Executives (2014). *
The Social Ecology of Youth Violence: US House Judiciary Committee: 2015*

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 28 of 33
NO Macarthur Jail Reduction Manuscript (2015) LSU School of Public Health (2015). *
Raise the Age: a report to the LA Legislature with Dr. Stephen Philippi, et. al. (2016), *
Education and Violent Crime, Educational Testing Service (2017). * Briefings to Mayor Elect Cantrell Transition Team, (2018). Facilitation of City in Crisis Opioid Forum LSUHSC (2019) The Costs and Consequences of Gun Violence, University of Alabama Medical School (2019) *Available through www.cslj.net; www.nicic.org www.ojp.org or through Google
Recent Selected Expert Witness Activity Cleary vs. Smith (1986) - constitutional rights of offenders (consent decree in effect) Davis vs. Mason County (1991) - use of force (reviewed by Supreme Court): qualified in US District Court Wittmer vs. Peters (1996) - race and correctional hiring policies: opinion commended by Louis Posner 7th Circuit Appeals Waldron vs. Mc Millan (1996) – injury in pursuit of subject Riley vs. New Castle (1996) - false imprisonment and technology Brooks vs. Pryor Creek (1996) - use of force Terel vs. Fort Worth (1997) - use of force Benton vs. Woodward (1998) – US District Court (Section: 1983-42) Evivie vs. Landreneau (1999) - police use of force-qualified in US District Court (Section: 198342) Castillo vs. Round Rock (2000) – Texas positional asphyxia and wrongful death (under review US Supreme Court) Jones vs. Grand Prairie (2001) - Texas-investigative procedures in child rape Marshall vs. Wal-Mart (2002) – alleged “4473” negligence of retailer in Fort Worth gun sale People vs. Wright (2004) - capital murder of a police officer St. Clair vs. WA DOC (2006) – use of force/ correctional officer-retention State (TX) vs. Michael Scott (2008-2009) –murder of four teen-age girls (ICBY Murder case, Austin Texas) Burley vs. Harvey (2008)-defamation re allegations of criminal activity and racketeering State vs. Spearman (2010)-Frye qualification of gunshot detection technology USA vs. Italiano (2011)-civil rights trial re actions following Hurricane Katrina Brandt vs. CSX Rail (2012)-liability related to murder of a train conductor Ryan vs. Southwest Labs (2014)-Testing error by drug identification lab State of La vs. Brian Smith- Capital Punishment in death of patrol Deputies Preston Hunter vs. Wind Run Apartments(2017)- liability for gun assault in an Apartment Complex in New Orleans East Breon Stewart vs. Wind Run Apartments (2018)-liability for murder in an Apartment Complex

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 29 of 33
Schiro v. Walgreen’s- Liability(2019) for kidnapping robbery in a drug store Roslynn Bienemy et. Al vs. Chateau D Orleans Apartments (2019) Liability of an Apartment Complex for Foreseeable Murder of a resident. Zena Nelson, et.al vs. Allen Borne et. al. (2019) Liability for shooting of four young men at social event Gwendolyn Williams vs. Carrolton Trace Apartment (2019) Liability of an Apartment Complex for Foreseeable Murder of a resident.
Selected Invitational Presentations (past 20 years) Louisiana Association of Computer-Using Educators "Computer Instruction for High-Risk Youth," New Orleans LA. (1992) International Association of Chiefs of Police "Community Policing," St. Louis, MO (1993) National Organization of Black Law Enforcement Officers "Use of Deadly Force Revisited-Debate with Johnny Cochrane," Richmond, VA (1994) National Institute of Corrections "Corrections and Law Enforcement," Washington, DC (1995) Alaska Alternative Education Conference" Crime and Learning" Wasilla, AK (1996) National Firearms Meeting "Computer-Based Firearms Control," Washington, DC (1997) Southern Policing Institute" Law Enforcement Ethics," Gretna, LA (1998) National Sheriff’s Association "Law Enforcement Technologies,” Columbus, OH (1999) Mapping Law Enforcement Technologies," Portland, ME, Miami (FLA). Palm Springs, CA, Cleveland, OH (2000) Correctional Technology Association (NIC)," Mega trends in Correctional Technologies" Raleigh, NC (2001) Bureau of Justice Assistance (“Criminal Justice Data Bases, Privacy and Ethics”) New Orleans (2001) Correctional Technology Association," Technology Innovation in Correctional Technologies" New Orleans, LA (2002) National Governor’s Association," “Performance Measures” Washington, DC (2003 National Association for Justice Integration Systems “Solving Serial Crime through Technology” Fort Worth, Texas (2003) National Institute of Justice “Gunshot Detection” Washington DC (2004) National Association for Justice Integration Systems “Business Process Change” Boston, MA (2004)

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 30 of 33
IJIS Institute “Technology and Organizational Change” Dulles, VA (2005) NCJA “Performance Based Criminal Justice”, Dana Point, CA (2005)
SEARCH “Organizational Perspectives and Accountability, Washington, DC (2006) NCJA/IJIS Institute “Performance Measures, Baltimore, MD (2006) NAIJS “Change and Performance Measures” Boca Raton FLA (2006) ACA-NJ “Evacuation of Orleans Parish Prison during Hurricane Katrina” Atlantic City, NJ (2006) Project Inkwell “Education and Crime” Seattle, WA (2006) George Washington University” Technology and Murder” Ashburn, VA (2007) IJIS Institute/NCJA “Murder Trends” Phoenix, AZ (2007) IIJIS “Performance Metrics and Violent Crime” Springfield, Ill. (2007) US House of Representatives Judiciary Committee “Early Interventions re: managing violent crime risks” NOLA (2007) US House of Representatives Judiciary Committee “What Works/What Does Not? Re: control of violent crime” Washington, DC (2007) Alliance for Good Government “Murder in New Orleans” New Orleans, LA (2007) IACP “Murder and the Media, New Orleans, LA (2007) BJA “Information Sharing Summit” Washington, DC (2008)
Nobel Public Service Presentation “Crime and the Knowledge Economy” Stockholm Sweden (2008)
Corrections Technology Association (Keynote) “Can Correctional Technology Save Costs?” Albany, NY (2009)
American Public Health Association” Performance Measure for Public Health Technologies” Philadelphia PA (2009)
American Public Health Association” Mentoring to Reduce Violent Crime Risks” Philadelphia PA (2009) National at-Risk Youth Conference” Violent Crime prevention” Joliet, Ill. 2010
Correctional Technology Association (Roundtable facilitator), Daytona Beach, FLA (2011)
LA Probation and Parole” Can we Afford Prisons-Now What? New Iberia, LA
(2011)
Correctional Technology Association (Roundtable facilitator and Major Session re:
Correctional Reentry), Daytona Beach, FLA (2012) US House Crime Sub-Committee: “Gun Violence after Newtown,” Congressional Violence Summit Washington DC (2013)

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 31 of 33
New Orleans Roundtable Club, “Murder in New Orleans,” New Orleans, LA (2013) Louisiana State University Medical School” Murder viewed from public health perspective” (2013) Bureau of Justice Assistance Second Chance National Conference” Reducing Recidivism Risks, National Harbor, MD (2014) National Association of School Safety and Law Enforcement Officers, New Orleans (2014) Educational Testing Service HI SET Conference-Between Education Crime Prevention”-Keynote, New Orleans, LA (2015) US House Congressional Briefing, Social Ecology of Youth Violence, Washington, DC (2015) Educational Testing Service HI SET National Conference, -Between Education, Vocations and Crime Control”-Keynote, San Francisco, CA (2016) Tulane School of Medicine Gun Violence in New Orleans, (2017) Tulane School of Medicine Gun Violence and Medical Interventions: Tulane School of Medicine (2018) Louisiana State University Health Science Center a City in Crisis- Opioid Epidemic Facilitation (2019) University of Alabama Medical School, the Costs and Consequences of Gun Violence Control (2019)
Media Interviews & Grant Funding Dr. Scharf has received broad media exposure as an expert in the field of criminal justice and has demonstrated strong success in obtaining criminal justice funding. National Media interviews/presentations 2010-2019
• Washington POST • USA Today • New York Times • CBS TV • NBC Evening News-Lester Holt

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 32 of 33
• Fox TV • ABC Nightline • Clear Channel Radio • Associated Press • PBS • NPR • CNN • Le Figaro • BBC • NY Times • Associated Press • Christian Science Monitor • Reuters • WWL Radio • NBC News
Federal Department of Justice/DHS Cooperative Agreements/Grants
• Bureau of Justice Assistance “Performance Measures for IT Systems” –
$150,000.00 (2002)
• National Institute of Justice/ FBI “Gulf Coast Computer Forensics Lab -
$1,200,000 (2002)
• Bureau of Justice Assistance “Executive Technical Briefings for Information
Technologies”-$220,000.00 (2002)
• Bureau of Justice Assistance “Managing Criminal Justice Technologies”-
$650,000.00 (2003)
• Bureau of Justice Assistance “Managing Law Enforcement
Integrity”, $349,000.00 (2003)
• BJA “Project Safe Neighborhood” - $150 00 (2002-2006) • National Institute of Justice “Secures® Assessment-Gunshot Detection”-
$400,000 (2001-6)

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 33 of 33
• Bureau of Justice Assistance, “Art of IT Performance Measures” $150,000
(2006-8)
• Office of Domestic Preparedness USAA-NIMS/WMD Training
“$600,000.00 (2005-10)
• Bureau of Justice Assistance PREA “Risk Assessment”-
$527,000.00 (2006-7)
• Bureau of Justice Assistance PREA “Change Experiment”-
$950,000.00(2007-9)
• Bureau of Justice Assistance-Assessment of Pegasus Local to
Local Sharing Initiative -$3,500,000.00 (total) with Pegasus
Research Foundation, Phase 1 and 2 :( 2009-11)
• Recovery School District, Designing an Alternative School for High Risk
Students (2012-3)
• Bureau of Justice Assistance-Assessment of BJA Co-Occurring Disorder
Initiative with LA DOC-$640,000- 2011-2014
• Bureau of Justice Assistance-Statewide Recidivism Reduction- With LA
DOC, $ 982,000.00-2012-14
• Bureau of Justice Assistance-Statewide Re-Entry Implementation- With LA
DOC, $ 700,000.00-2015-17
• Bureau of Justice Assistance- Phase II Assessment of BJA Co-Occurring
Disorder Initiative with LA DOC-$640,000- 2014-2017 Winner of ACA innovation award (2017)
• Mac Arthur Foundation-Assessment of Jail Reduction Initiative $43,000.00
(2016-8)
• Gretna Police Department-Race Relations and Social Media (2019)
Personal: Father of Adria, Sage, Razi and Tessa.
Grandfather of Sahara, Owen, Levi, Sedona, Deni, Hannah Cora, and Melia.

 Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al., Plaintiffs,
v. Chad Wolf, et al.,
Defendants.

)

)

)

)

No. 19-cv-1593 (JEB)

)

)

)

)

)

DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Defendants Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security (“DHS”); Matthew T. Albence, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”); Nathalie Asher, Acting Executive Associate Director of ICE Enforcement and Removal Operations; and George Lund III, Director of ICE’s New Orleans Field Office, in their official capacities (collectively, “Defendants”), file this opposition to Plaintiffs’ motion for preliminary injunction.
SUMMARY OF ARGUMENT Plaintiffs profess that they “are not seeking to challenge the outcome of the individualized parole assessments” themselves, but only to obtain an order from the Court requiring ICE to “immediately administer to all present and future class members individualized parole assessments, in a method consist[ent] with the applicable regulations and standards of the [2009 Parole] Directive.” (ECF No. 61-1, Pl. Mem. at 16) But this Court already issued a preliminary injunction on September 5, 2019, directing ICE to conduct individualized assessments of parole requests made by asylum seekers who have obtained a credible fear
1

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 2 of 36
determination and who are detained at facilities within the New Orleans Field Office. Thus, if Plaintiffs’ assertion is to be credited, there is no need for the Court to issue another preliminary injunction that is duplicative of the one already in place. Nor could Plaintiffs establish irreparable harm from the absence of an additional order that would be redundant of the existing one.
Although Plaintiffs contend as the basis for seeking duplicative relief that Defendants “continue to defy this Court’s injunction” (ECF No. 61-1, Pl. Mem. at 16; ECF No. 61, Pl. Mot. at 1), they have failed to support that contention. They acknowledge that recent monthly reports by the agency reflect parole grant rates approaching 40 percent at some facilities, which is an increase from near zero at the time Plaintiffs’ original motion for preliminary injunction was filed. (ECF No. 61-1, Pl. Mem. at 31-32) Based on this Court’s prior analysis, which considered the near-zero parole grant rate to be indicative of non-compliance with the Parole Directive, this substantial increase in grant rates demonstrates that individualized determinations are occurring consistent with the Court’s September 5, 2019 order.1 Moreover, it is likewise telling that, of the hundreds of parole determinations and re-determinations that have occurred since the Court’s September 5, 2019 preliminary injunction order, Plaintiffs proffer declarations of only eight detainees. And those declarants fail to identify any recent instances of noncompliance with the Parole Directive, but instead reference a few, isolated instances of alleged

1

Defendants continue to maintain that the use of grant rates as a benchmark for

compliance with the Parole Directive is improper, but, as that is something that this Court (and

Plaintiffs) have previously relied on as being indicative of non-compliance over Defendants’

objection, consistency demands that the Court likewise recognize that a substantial increase in

grants necessarily is evidence of compliance.

2

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 3 of 36

non-compliance that allegedly occurred months ago, with some even pre-dating the Court’s September 5, 2019 order. Thus, Plaintiffs’ suggestion that their motion is necessitated by noncompliance with the Court’s existing order is an obvious pretext, particularly given that other mechanism are available to Plaintiffs for bringing isolated issues of alleged non-compliance to the Court’s attention as they have done previously. (see, e.g., ECF No. 53)2
Thus, what is at issue here is Plaintiffs’ attempt to shoehorn the COVID-19 situation into this narrowly framed Administrative Procedure Act (“APA”) case. Indeed, when Plaintiffs met and conferred with undersigned counsel regarding this motion by email dated March 20, 2020 (as referenced in ECF No. 61, Pl. Mot. at 2, “Local Rule 7(m) Statement”), they advised that they would be filing an entirely different motion from what actually has been filed. At that time, they described the motion as one for “a Temporary Restraining Order seeking release of Heredia Mons class members, and enjoining the New Orleans ICE Field Office from detaining any future class members, until the abatement of this pandemic.” (Ex. 1 hereto)
In response to Plaintiffs’ March 20, 2020 email, undersigned counsel observed that “[t]he TRO motion that you have outlined below goes well beyond the limited scope of this lawsuit and, in effect, would be asking the Court to make parole adjudications – i.e., to, in effect, order the granting of parole to all members of the Mons class. The court, however, already has

2

At the status conference on January 7, 2020, the Court also discussed with the parties

possible recourse for Plaintiffs in the event Defendants’ statistics failed to improve, and

renewing their preliminary injunction motion was not an option that the Court identified. (Tr. at

23-24) Defendants’ statistics, of course, have improved significantly since that time. And, in

the recent status report, Plaintiffs have opposed Defendants’ request for a summary judgment

briefing schedule on the basis that more monthly reports are needed “for this Court to reach a

sound, well-informed conclusion regarding Defendants’ compliance with the Parole Directive.”

(ECF No. 63 at 4)

.

3

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 4 of 36

recognized that it has no jurisdiction over the parole determinations themselves. See Damus, 313 F. Supp. 3d at 327 (observing that “[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”).” (Id.)
Having abandoned asking this Court to order the release of all detainees outright, Plaintiffs now are asking this Court to order automatic re-determinations under the 2009 Parole Directive for all detainees within the New Orleans Field Office who fall within the broadly defined Mons class that take into consideration the detainee’s age and medical conditions – and, indeed, “favor” those factors over others – in light of the COVID-19 situation. (ECF No. 61, Pl. Mot. at 2) This Court, however, lacks jurisdiction to entertain a requested injunction that exceeds the scope of the narrow framework of this lawsuit as pled in the Complaint, which is confined to the four corners of the 2009 Parole Directive and alleged non-compliance with that directive based on allegations wholly unrelated to COVID-19.
Aside from this threshold jurisdictional defect, Plaintiffs misunderstand the limited scope of the Parole Directive and the resulting narrow scope of their APA claim in this lawsuit.3 Although the Parole Directive sets forth certain procedures to be followed in evaluating individual parole requests, including making individualized determinations, nothing in the Parole Directive or the overarching regulation, 8 C.F.R. § 212.5(b), requires the granting of parole based on any one, or combination, of the factors Plaintiffs identify. Nor does the Parole

3

Much of Plaintiffs’ motion re-iterates arguments already addressed by the Court in

connection with briefing on Defendants’ motion to dismiss and Plaintiffs’ prior motion for

preliminary injunction. Recognizing that the Court already has resolved those arguments in its

prior order, Defendants are not reiterating their position here, but incorporate their prior filings in

that regard by reference and reserve all rights in that regard.

4

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 5 of 36
Directive dictate how such factors should be balanced against other competing factors that are relevant to any particular parole determination. Such decisions and balancing of competing factors remain within ICE’s discretion under the Parole Directive. As the applicable regulations make clear, parole is to be assessed on a “case-by-case basis,” 8 C.F.R. § 212.5(b), and whether a medical condition warrants parole in any specific individual situation is a determination entirely within ICE’s discretion. Id. § 212.5(b)(1).
Thus, Plaintiffs cannot establish a likelihood of success on their claim that ICE has violated the Parole Directive by allegedly failing in its individualized determinations to afford greater weight to an individual’s age or medical condition in the context of the current COVID19 situation than to other factors. Plaintiffs have likewise failed to proffer any evidence that detainees with medical conditions placing them at high-risk for COVID-19 have not received individualized parole determinations. Indeed, of the eight individuals who submitted declarations in support of Plaintiffs’ motion, only two could be considered high-risk based on the CDC criteria – O.M.H. (HIV positive and Hepatitis C) and S.U.R. (60 year old with hypertension and a heart murmur) – and both recently have been released from detention. (Hartnett Decl. ¶ 26 and Ex. B thereto)
Plaintiffs, moreover, cannot establish irreparable harm if they are not afforded the relief that they seek, namely, an order from the Court directing ICE to conduct new parole determinations for all detainees within the Mons class, regardless of whether a re-determination is requested, and without regard to a detainee’s age or medical situation. The Parole Directive already permits a detainee to request a re-determination of a prior denial and affords ICE discretion in how to conduct that re-determination. (2009 Parole Directive ¶ 8.9) Accordingly,
5

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 6 of 36

detainees who are concerned about COVID-19 based on their age or medical condition can request a re-determination under the directive and thus would suffer no irreparable harm if the relief requested by Plaintiffs (court-ordered re-determinations) is not granted.
Finally, the order that Plaintiffs request is not in the public interest. It is not narrowly tailored to those detainees who may fall within high-risk categories identified by the CDC, but would cover all detainees regardless of their age, medical condition or whether they even want a re-determination. Accordingly, it would require the unnecessary expenditure of resources by ICE that could otherwise be used to fulfill ICE’s mission at a particularly challenging time.
Ultimately, it appears that Plaintiffs may be using the vehicle of a preliminary injunction motion as a means of inviting this Court to assume a role in monitoring the conditions of the detention facilities within the New Orleans Field Office. This Court, however, lacks jurisdiction to assume such a role based on the narrowly pled APA claims that are before this Court, which rest entirely on the so-called Accardi doctrine as their legal basis.4 Those claims are limited to the four corners of the 2009 Parole Directive, and the procedures established by that directive on ICE’s otherwise unfettered discretion in making parole determinations. Because that directive does not speak to the conditions of the detention facilities, and the conditions at the facilities did not form the basis for Plaintiffs’ APA claims under the Accardi doctrine as pled in the Complaint, any attempt by Plaintiffs to ask this Court to assume a role outside the scope of this lawsuit should be summarily rejected.

4

Defendants are aware that this Court has sought information from ICE regarding the

conditions at certain Family Residence Centers at issue in O.M.G. v. Wolf, Case No. 20-786

(JEB), but the Complaint in that case asserted claims specifically based on the conditions at those

facilities. Those claims as pled were not narrowly tailored as here to the four-corners of the

Parole Directive.

6

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 7 of 36
ARGUMENT I. This Case As Pled Is Limited To The Four Corners Of The Parole Directive.
This case as pled by Plaintiffs is limited to two claims under the APA based on ICE’s alleged categorical denial of parole for asylum seekers who have been issued a credible fear determination and who are detained at facilities within ICE’s New Orleans Field Office. Specifically, Plaintiffs alleged that, at the time the Complaint was filed in May 2019, DHS had “effectively rescinded the 2009 Parole Directive” in the New Orleans ICE Field Office and that the parole determinations pertaining to them, as well as to members of the putative class, were denied categorically without an individualized determination. (Compl. ¶¶ 129-137) In support of these claims, they allege that parole was denied in “virtually all cases in 2018” (Compl. ¶ 48) and also cite to a statement made in November 2018 by the Assistant Field Office Director for the New Orleans Field Office, Brian Acuna, that they view as an admission that the New Orleans Field Office was not following the directive at that time.5
Plaintiffs argued that the alleged “categorical denial” of parole violates the provisions of the 2009 Parole Directive, which Plaintiffs contends imposes certain requirements on ICE in the manner by which it exercises its discretion in making parole determinations that are subject to that directive. Importantly, of the five categories of aliens who may meet the parole standards as set forth in 8 C.F.R. § 212.5(b), the Parole Directive seeks to interpret only one of those five categories, specifically, subsection (b)(5), which refers to “[a]liens whose continued detention is
5 Mr. Acuna has clarified that he misspoke in connection with the response that he provided in November 2018, and confirms that all offices within the New Orleans area of responsibility are adjudicating parole requests in accordance with the 2009 parole directive.” (ECF No. 26-3, Acuna Decl. ¶ 14) In any event, this allegation does not speak to whether ICE currently is complying with the Parole Directive.
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not in the public interest.” The Parole Directive explains how the term “public interest” is to be interpreted to “guide” the exercise of the agency’s discretion with respect to this specific subsection and also “mandate[s] uniform record-keeping and review requirements” for parole decisions under section 212.5(b). (Parole Directive ¶ 4.4) The factors that the Parole Directive identifies for consideration in evaluating the “public interest” specifically include the individual’s potential as a flight risk and the individual’s potential danger to the community. Issues pertaining to an individual’s medical condition are not specified as considerations under the “public interest” assessment. Instead, under 8 C.F.R. § 212.5(b)(1), an individual’s “serious medical condition” may be considered as a basis for parole on a “case-by-case” basis.
As this Court has previously recognized, by statute the decision whether or not to grant parole under any of the subsections of 8 C.F.R. § 212.5(b) is a discretionary one that is not subject to judicial review under the APA. See Damus v. Nielsen, 313 F. Supp. 3d 317, 327 (D.D.C. 2018) (“[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”). This Court, however, has permitted Plaintiffs’ APA claims here to proceed because Plaintiffs purportedly are not challenging individual parole determinations but instead challenge more narrowly the agency’s alleged failure to comply with the procedures of the Parole Directive based on the alleged practice of categorically denying all parole requests (and thus allegedly not engaging in individualized determinations).
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Plaintiffs’ APA claims6 thus survived Defendants’ motion to dismiss solely on the basis of the “Accardi doctrine,” which, as applied by this Court,7 can form the basis for an APA claim when an agency allegedly fails to following guidelines that it has established to govern the agency’s discretionary decisionmaking. (ECF No. 32, Mem. Op. at 18) Relying on the Accardi doctrine, this Court found the Parole Directive to constitute binding guidance over the agency’s discretionary decisionmaking in parole determinations, and thus permitted Plaintiffs to proceed with their APA claim based on Plaintiffs’ allegations that ICE failed to conduct individualized parole determinations and instead followed a practice of categorically denying parole contrary to the directive. (ECF No. 32, Mem. Op. at 19)
On September 5, 2019, this Court also granted Plaintiffs’ motion for preliminary injunctive relief and ordered ICE to conduct individualized parole determinations in accordance with the provisions of the Parole Directive. Since that order, ICE has been providing monthly reports to the Court reflecting the rate at which parole is now being granted at its facilities within the New Orleans Field Office. In that regard, the report filed on February 24, 2020 reflected a 36 percent grant rate for both re-determinations and initial parole determinations, and the report field on March 23, 2020, reflected a 29% grant rate for re-determinations and a 13.6% grant rate for initial determinations. In contrast, at the time this lawsuit was filed, the grant rate was near

6

Plaintiffs also asserted a claim for violation of due process under the Fifth Amendment

for alleged non-compliance with the procedures of the Parole Directive, but the Court dismissed

that claim without prejudice by order dated September 5, 2019. (ECF No. 33)

7

Defendants continue to reserve their position that the Accardi doctrine is not applicable to

the Parole Directive, and are simply discussing above this Court’s ruling on Defendants’ motion

to dismiss.

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zero according to Plaintiffs’ allegations, evidence that figured prominently in their Complaint and this Court’s granting of preliminary injunctive relief.
II. This Court Lacks Jurisdiction To Issue Injunctive Relief Based On Allegations That Fall Outside The Narrow Scope Of This Lawsuit.
“As a general rule, ‘a preliminary injunction may not issue when it is not of the same character as that which may be granted finally and when it deals with matter outside the issues in the underlying suit.’” Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 9 (D.D.C. 2014). Thus, a preliminary injunction that “deals with a matter lying wholly outside the issues in the suit” or would provide relief that could not be provided “in any final injunction that may be entered” would not be proper. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945).
This established rule “cuts to the subject matter jurisdiction of the court.” Sai, 54 F. Supp. 3d at 9. “Thus, just as a court lacks jurisdiction over a motion for a preliminary injunction in the absence of a complaint . . ., the court also lacks jurisdiction over a motion when it ‘raises issues different from those presented in the complaint.’” Id.; see also Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002); accord Stewart v. U.S. Immigration and Naturalization Serv., 762 F.2d 193, 198-99 (2d Cir. 1985).
Plaintiff purports to bring this preliminary injunction motion based on ICE’s failure to provide individualized parole determinations in accordance with the procedures set forth in the Parole Directive. But this Court already has entered a preliminary injunction providing that relief and, as discussed below, Plaintiffs have failed to support with competent evidence their contention of non-compliance by ICE with the existing injunction. Indeed, were the Court to
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find non-compliance with its existing order, the proper remedy would not be for the Court to issue a duplicative preliminary injunction.
The preliminary injunction order that is actually being requested is one that would require ICE to conduct re-determinations of parole for all detainees within the New Orleans Field Office who fall within the broadly defined Mons class based on the COVID-19 situation. (ECF No. 61-2) But nothing in the existing Complaint supports that relief. The allegations are limited to narrowly pled APA claims based on the Accardi doctrine that allege (1) a policy and practice of “ignoring the Parole Directive” (Count I) and (2) a failure to provide individualized determinations in accordance with the Parole Directive and to instead categorically deny parole in virtually all cases (Count II). (Compl. ¶¶ 129-137)
In their motion for preliminary injunction, Plaintiffs state that they are re-asserting these two claims “but now make[] these assertions as the basis for injunctive relief requested to enjoin Defendants from acting in a manner specifically harmful to Plaintiffs’ during the COVID-19 pandemic.” (ECF No. 61-1, Pl. Mem. at 23) This assertion is an admission that Plaintiffs are seeking relief outside the scope of the existing Complaint and attempting, by motion, to advance new claims. That Complaint, which was filed in May 2019, pre-dates the COVID-19 situation and does not allege a violation of the 2019 Parole Directive based on any individual’s particular health status, age or conditions of detention. Plaintiffs’ attempt to assert by motion what amount to new claims based on events that had not arisen at the time that Complaint was filed is improper and fails to afford jurisdiction to this Court to consider a requested injunction based on such unpled claims.
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When Plaintiffs’ narrowly pled Complaint is compared to recent lawsuits against ICE filed by other litigants based on the COVID-19 situation, the limited nature of this lawsuit as pled is even more apparent. Those lawsuits assert constitutional challenges to the living conditions at certain ICE facilities based on COVID-19 and seek injunctive relief on the basis of allegations specifically raised in the Complaints filed in those actions. See, e.g., Dawson v. Asher, Case No. 20-409 (W.D. Wash.).8 In one recent example, 17 detainees in five facilities within the New Orleans Field Office (LaSalle, Richwood, Etowah, Adams and Winn) recently filed such a lawsuit in the Eastern District of Louisiana, alleging that they are high-risk to COVID-19 either by age or health conditions (i.e., diabetes, chronic lung condition, kidney disease, and hypertension) and that the conditions at the facilities are unsafe for them for that reason and that they should be released. See Dada, et al. v. Witte, Case No. 20-1093 (E.D. La.).9
What is relevant here for purposes of this Court’s jurisdiction is not the outcome of the motion in Dada (dismissal for lack of jurisdiction) and similar lawsuits, but the different character of such lawsuits as compared to the narrowly pled Complaint here. The Complaint here does not plead facts pertaining to the COVID-19 situation or attempt to base any claim for relief on the living conditions at facilities within the New Orleans Field Office relative to any individual’s particular age or medical condition. Indeed, standing in this lawsuit was derived from a putative class that is defined in a manner entirely unconnected to any class member’s age or medical condition.

8 The motion for temporary restraining order was denied in the above-cited case.

9

At least one of the plaintiffs in Dada appears to fall within the Mons class as that class

has been defined by this Court.

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Yet, Plaintiffs base their motion for preliminary injunction on conditions in the detention facilities, which they contend render them unsafe in light of COVID-19 and thus, in their view, require ICE to conduct automatic, across-the-board re-determinations of parole for all detainees. But the APA claims as pled in the existing Complaint are not based on alleged unsafe living conditions or any detainees’ age or medical condition, nor does the Complaint present the Court with a claim that would require it to assess those conditions. As pled, this lawsuit is limited to the four corners of the Parole Directive and that directive does not in any way purport to limit ICE’s discretion in weighing such issues in parole determinations. Nor does it require that ICE conduct automatic, across-the-board re-determinations of parole in the event of a health crisis. Under the directive, individual detainees can request a re-determination of a prior denial of parole and ICE has discretion in how that is conducted. (2009 Parole Directive ¶ 8.9) Moreover, while the regulations governing parole recognize “serious medical conditions” and “humanitarian reasons” as a potential basis for parole, that is to be assessed in ICE’s discretion on a “case-by-case” basis. 8 C.F.R. § 212.5(b).
This Court already has issued a preliminary injunction that falls within the scope of the allegations as narrowly pled in the Complaint. Plaintiffs’ instant motion would be redundant were it to seek relief that this Court already has granted. Instead, it is properly understood as seeking relief related to the COVID-19 situation based on the conditions at the facilities within the New Orleans Field Office, matters over which this Court lacks jurisdiction in this narrowly framed lawsuit. As such, Plaintiffs’ motion goes beyond the scope of this lawsuit and should be denied on that basis.
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III. Plaintiffs Have Failed To Meet Their Burden To Establish An Entitlement To Preliminary Injunctive Relief.
Even were the Court to find that it has jurisdiction over Plaintiffs’ motion despite the limited nature of this lawsuit, Plaintiffs have failed to meet their burden to obtain preliminary injunctive relief. A “preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). A party seeking preliminary relief must make a “clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016). The moving party bears the burden of persuasion and must demonstrate, “by a clear showing,” that the requested relief is warranted. Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 197 (D. D.C. 2010).
Before the Supreme Court’s decision in Winter, courts weighed these factors on a sliding scale, allowing an unusually strong showing on one of the factors to overcome a weaker showing on another. Davis v. PBGC, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) This Circuit has suggested, without deciding, that Winter—which overturned the Ninth Circuit’s “possibility of irreparable harm” standard— “should be read to abandon the sliding-scale analysis in favor of a ‘more demanding burden’ requiring Plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm.” Bartko v. Dep’t of Justice, 2015 WL 13673371, at *1 (D.D.C. 2015) (citing Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011), and Davis, 571 F.3d at 1292); see also League of Women Voters, 838 F.3d at 7 (declining to address whether “sliding scale” approach is valid after Winter).
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Even before Winter, courts in this Circuit consistently stressed that “a movant must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting CityFed Fin. Corp. v. OTS, 58 F.3d 738, 747 (D.C. Cir. 1995)). Thus, “if a party makes no showing of irreparable injury, the court may deny the motion without considering the other factors.” Henke v. Dep’t of Interior, 842 F. Supp. 2d 54, 59 (D.D.C. 2012) (quoting CityFed Fin. Corp., 58 F.3d at 747); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (“A movant’s failure to show any irreparable harm is … grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.”).
A movant alleging “speculative injuries” cannot meet the “‘high standard for irreparable injury’ sufficient to warrant the extraordinary relief” of a preliminary injunction and “the Court need not reach the other factors relevant to the issue of injunctive relief.” United Farm Workers v. Chao, 593 F. Supp. 2d 166, 171 (D.D.C. 2009) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297); see Bartko, 2015 WL 13673371 at *2 (“[t]he Court need not grant injunctive relief ‘against something merely feared as liable to occur at some indefinite time’”) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). “[T]he movant must demonstrate the injury is of such ‘imminence’ that there is a clear and present need to equitable relief to prevent irreparable harm.” Id. (quoting Judicial Watch, Inc. v. Dep’t of Homeland Security, 514 F. Supp. 2d 7, 10 (D.D.C. 2007). And where a party seeks to change the status quo through action rather than merely to preserve the status quo—typically the moving party must meet an even higher standard than in the ordinary case: the movant must show ‘clearly’ that [it] is entitled
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to relief or that extreme or very serious damage will result.” Farris v. Rice, 453 F. Supp. 2d 76, 78 (D.D.C. 2006) (citing authorities).
As discussed below, Plaintiffs have fallen far short of meeting their burden to establish that they have met any of the four factors by either the “clear showing” standard or the somewhat higher standard applicable when the injunction would alter the status quo. Dunlap v. Presidential Advisory Comm’n on Election Integrity, 319 F. Supp. 3d 70, 81 (D.D.C. 2018); Farris, 453 F. Supp. 2d at 78.
A. Plaintiffs Have Not Demonstrated A Likelihood Of Success On The Merits Plaintiffs have not shown that they have a strong likelihood of success on the merits. Plaintiffs nominally contend that their motion is necessary on the basis that Defendants are in violation of this Court’s existing preliminary injunction order, and they devote most (if not all) of their discussion of the likelihood of success factor to essentially re-litigating their earlier motion. (ECF No. 61-1, Pl. Mem. at 31-42) However, as discussed below, Plaintiffs have failed to proffer to the Court competent evidence sufficient for this Court to find Defendants currently to be in violation of the September 5, 2019 order. Indeed, if alleged non-compliance with the existing order were the true basis for Plaintiffs’ motion, the requested injunction would be redundant of relief already granted by the Court and unnecessary in light of other potential remedies available to Plaintiffs. What is at issue instead is Plaintiffs’ contention that automatic, across-the-board redeterminations of parole are necessary in light of COVID-19. As already discussed above, this Court lacks jurisdiction to consider that claim since it goes beyond the scope of this lawsuit as narrowly framed in the Complaint. But even if the Court had jurisdiction, Plaintiffs
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mischaracterize the Parole Directive in making this argument. They contend that “Defendants should . . . be required to fully comply with all applicable regulations delineated in the Parole Directive, including those that favor the granting of parole to class members who ‘have serious medical conditions, where continued detention would not be appropriate,’ and class members ‘whose continued detention is not in the public interest.’” (ECF No. 61, Pl. Mot. at 2)
However, the referenced regulations do not “favor” granting parole on any specific basis, but simply identify categories in which parole may be justified based on the exercise of ICE’s discretion. Neither the Parole Directive nor the referenced regulation, 8 C.F.R. § 212.5(b), dictates how ICE is to weigh competing factors in evaluating parole on a case-by-case basis. Nor have Plaintiffs identified any provision of the Parole Directive that would entitle them to automatic, across-the-board re-determinations based on these factors. And their limited evidence fails to demonstrate that ICE is not conducting individualized determinations of individuals who have requested re-determinations in light of COVID-19. For all of these reasons, Plaintiffs cannot establish a likelihood of success on the merits of their new, unpled claim.
1. Plaintiffs Have Proffered Insufficient Evidence Of Non-Compliance As a basis for contending that ICE is in violation of this Court’s September 2019 preliminary injunction order, Plaintiffs cite to the current grant rates at facilities within the New Orleans Field Office, which they acknowledge approach 40 percent at some facilities but still characterize as “abysmal”. (ECF No. 61-1, Pl. Mem. at 32) They also cite to what they characterize as testimony by their declarants reflecting “egregious behavior” by Defendants regarding their compliance with the existing order. (Id.) Neither argument has merit.
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In terms of the grant rates, Plaintiffs appear to take the position that the 75 percent grant rate allegedly existing several years ago somehow constitutes the benchmark for what constitutes compliance with the Parole Directive. Not only is that a baseless assertion, but it overlooks the underlying premise of the APA claims in their Complaint and in their original motion for preliminary injunction. Both focused on the near-zero grant rate existing at the time this lawsuit was filed. In that regard, the Complaint asserted claims under the APA on the basis that ICE had a “policy and practice of ignoring the Parole Directive” that is arbitrary and capricious (Count I) and that ICE is failing to make individualized parole determinations and instead is “issuing denials on a categorical basis.” (Count II) (Compl. ¶¶ 129-137)
These are the only claims currently at issue in this case, and the only claims on which a request for injunctive relief can be based. Clearly, a recent grant rate approaching 40 percent at some facilities (and over 30 percent across all facilities as reflected in the recently-filed monthly reports) conclusively establishes that individualized parole determinations are occurring, that the Parole Directive is not being “ignor[ed],” and that denials are not being issued on a “categorical basis.” See, e.g., R.I.LR. v. Johnson, 80 F. Supp. 3d 164, 174 (D.D.C. 2015) (JEB) (“Although these materials certainly do not reflect a large body of favorable release determinations, the Court is reluctant to find an across-the-board No-Release Policy when it appears that — at least in some small number of cases — ICE does grant bond on the basis of individualized considerations.”) While Plaintiffs may prefer a higher grant rate, that preference is not a basis for contending that Defendants are failing to conduct individualized determinations in violation of this Court’s September 2019 order.
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Most of Plaintiffs’ discussion concerns sweeping assertions regarding Defendants alleged non-compliance with this Court’s September 5, 2019 order (ECF No. 61-1, Pl. Mem. at 32-41) that are untethered from the supporting “evidence” that Plaintiffs have proffered. But the assertions made by counsel in a legal brief are not evidence. A close review of the referenced declarations submitted with Plaintiffs’ motion – the only “evidence” presented – reveals the exaggerated nature of these assertions.
Defendants discuss below each of the purported fact declarations submitted with Plaintiffs’ motion to the extent they purport to address ICE’s alleged non-compliance with the 2009 Parole Directive. As that discussion reflects, to the extent these declarations even allege non-compliance with the 2009 Parole Directive (as opposed to dissatisfaction with the outcome of their parole determinations), they are limited to isolated acts that occurred several months ago and, in some instances, prior to this Court’s September 5, 2019 preliminary injunction order. And, to the extent these declarants take issue with the amount of information on their denial letters explaining the basis for the decisions, this Court’s September 5, 2019 order did not require ICE to provide any more detail than provided on its form denial letter (indeed, the Parole Directive requires nothing more than a “brief” explanation (Parole Directive § 6.5)). Thus, although Plaintiffs make sweeping assertions of non-compliance in their preliminary injunction motion, their supporting declarations fail to support those contentions.
A discussion of the eight declarations submitted with Plaintiffs’ motion follows and demonstrates the dated nature of the allegations of alleged non-compliance in these declarations. The dated nature of the allegations is significant in two ways. First, it demonstrates that there is no alleged imminent need for Plaintiffs’ motion to the extent it is based on alleged non-
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compliance. See, e.g., Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989) (delay of four months indicates a lack of imminence sufficient to support preliminary injunctive relief). Second, Plaintiffs’ near complete reliance on dated, isolated examples reflects the absence of any present issue regarding compliance. Indeed, since the Court’s preliminary injunction order, hundreds of parole determinations have been made. Against that backdrop, Plaintiffs identification of only a few isolated instances of alleged non-compliance from months ago falls far short of Plaintiffs’ burden to establish a present violation of this Court’s September 5, 2019 order. A close review of Plaintiffs’ declarations reveals the following:
B.A.E.: B.A.E. identifies one act of alleged non-compliance that allegedly occurred in November 2019 when parole was denied before B.A.E. submitted an application, and one isolated comment in November 2009 that is contradicted by recent grant rate statistics. (ECF No. 61-3 at ¶¶ 8-9) B.A.E.’s dissatisfaction with the outcome of the parole determinations and the absence of a more detailed explanation for the denials (which is not required by this Court’s preliminary injunctive order or the Parole Directive) is not evidence of non-compliance. According to ICE’s records, B.A.E.’s most recent parole denial was March 29, 2020. (Ex. B to Hartnett Decl.) K.S.R.: K.S.R. identifies one act of alleged non-compliance at the S. Louisiana facility when, in December 2019, K.S.R. was denied parole as a flight risk without being interviewed. (ECF No. 61-4 at ¶ 7) According to K.S.R.’s declaration, K.S.R. requested re-determinations of that denial on three occasions and was denied each time. (Id. ¶ 8) K.S.R. does not identify any issues of non-compliance associated with any of those denials. (Id.) According to ICE’s records, K.S.R.’s most recent parole denial was
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March 12, 2020. (Ex. B to Hartnett Decl.) L.P.C.: L.P.C. identifies one instance in November 2019 at the S. Louisiana facility where an officer allegedly refused to accept the parole application and stated that parole is not granted in Louisiana (a contention contradicted by recent parole grant statistics). (ECF No. 61-5 at ¶¶10-12) L.P.C. asserts that “over the last four months” other parole requests were made and were denied, with the flight risk box checked on the denial letter and no further explanation. (Id.) L.P.C. does not identify any issues of non-compliance regarding these requests and neither this Court’s preliminary injunction order nor the Parole Directive require any explanation beyond what was included in these denial letters. According to ICE’s records, L.P.C.’s last parole denial was January 30, 2020. (Ex. B to Hartnett Decl.) O.M.H.: O.M.H. identifies an issue with a parole denial occurring in or about July 2019, prior to the Court’s September 5, 2019 preliminary injunction order. (ECF No. 616 at ¶ 5) O.M.H. also makes a generic assertion that ICE officers at Richwood would not accept parole requests, but the timeframe when this allegedly occurred appears to have been some time prior to December 2019. (Id. at ¶ 9) O.M.H. filed a parole request on March 26, 2020, but does not assert any issues of non-compliance with respect to that request. (Id. at ¶ 10) According to ICE’s records, that request was denied on March 30, 2020, but O.M.H. was subsequently released on his own recognizance on April 2, 2020. (Hartnett Decl. ¶ 26 and Ex. B thereto)
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R.P.H.: R.P.H. allegedly applied for parole four times and all of her requests have been denied. R.P.H. identifies no issues of non-compliance with respect to any of those requests, but simply expresses the belief that the requests should have been granted. (ECF No. 61-7 at ¶ 14) According to ICE’s records, R.P.H.’s last request was denied March 12, 2020. (Ex. B to Hartnett Decl.) S.U.R.: S.U.R. was transferred to the River Correctional Facility in April 2019 and apparently requested parole shortly thereafter. (ECF No. 61-8 at ¶¶ 8-9) Although S.U.R. alleges that there was no interview in connection with that application or any decision on that request, that application apparently occurred prior to this Court’s September 5, 2019 order based on the chronology provided in S.U.R.’s declaration. (Id.) In November 2019, S.U.R. was transferred to the Adams facility where a parole request was made and denied. (Id. ¶ 10) S.U.R. does not identify any issues of non-compliance with that request. (Id.) According to ICE’s records, S.U.R. was granted parole on April 3, 2020. (Hartnett Decl. ¶ 26 and Ex. B thereto) T.M.F.: T.M.F. alleges that, while in the Tallahatchie facility for approximately one week in late November/early December 2019, officers told him parole was not granted in Louisiana and that his parole request was denied. (ECF No. 61-9 at ¶¶ 8-9) On December 10, 2019, T.M.F. was transferred to River Correctional Facility and in early January 2020 was transferred to LaSalle, where T.M.F. allegedly had difficulty contacting a deportation officer. (Id. ¶ 11) According to ICE’s records, T.M.F. was last denied parole on January 31, 2020. (Ex. B to Hartnett Decl.) T.M.F. claims to have been denied parole several times, but does not identify any issue of non-compliance with
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respect to any of those denials. (ECF No. 61-9 at ¶¶ 9-10) T.M.F. expresses dissatisfaction with the outcome of his parole requests and the absence of a detailed explanation for the denials. (Id.) According to ICE’s records, an Immigration Judge issued a ruling in T.M.F.’s favor on March 10, 2020, and ICE has reserved appeal. (Ex. B to Hartnett Decl.) Y.P.T.: Y.P.T. identifies one issue of alleged non-compliance that occurred either before, or around the time of, this Court’s September 5, 2019 order based on the chronology presented in Y.P.T.’s declaration. (ECF No. 61-10 at ¶¶ 8-9) Specifically, Y.P.T. alleges that parole was denied while at the Tallahatchie facility in late August or early September 2019 without Y.P.T. having the opportunity to submit documents in support of parole. (Id.) Y.P.T. alleges that there have been three other parole requests which have been denied. (Id. ¶ 10) Y.P.T. does not identify any issues of noncompliance with the Parole Directive in connection with any of those requests. (Id.) Instead, like T.M.F., Y.P.T. expresses dissatisfaction with the outcome of the determinations and the lack of a more detailed explanation for the denials. (Id.) According to ICE’s records, an Immigration Judge ordered Y.P.T. removed on January 10, 2020, and Y.P.T.’s appeal to the BIA remains pending. (Ex. B to Hartnett Decl.) Y.P.T.’s last parole denial was February 28, 2020. (Id.) Rivera Declaration: Plaintiffs’ motion also is accompanied by a declaration of Laura Rivera, one of the attorneys representing Plaintiffs in this action. (ECF No. 61-11) That declaration is focused mainly on the COVID-19 situation, recent guidelines at the facilities within the New Orleans Field Office placing restrictions on visitation, and
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hearsay regarding the conditions at two facilities (LaSalle and Pine Prairie). To the extent parole is referenced in that declaration, Ms. Rivera discusses two clients who were denied parole before the COVID-19 situation, and also denied parole again after the onset of COVID-19. (ECF No. 61-11 at ¶¶ 11-12) Although Ms. Rivera disagrees with those determinations, Ms. Rivera does not identify any issues of alleged non-compliance with the Parole Directive with respect to those determinations. (Id.) Thus, these declarations fail to establish any current, ongoing violation of this Court’s September 5, 2019 order. Instead, they at most reflect dated, isolated instances of alleged non-compliance that arose several months ago. Accordingly, Plaintiffs have failed to meet their burden of establishing the likelihood of success factor to the extent it is premised on alleged noncompliance with this Court’s existing order.
2. Plaintiffs Have Failed To Establish A Lack Of Individual Determinations For Individuals At High Risk Of COVID-19
Plaintiffs other apparent basis for filing this motion for preliminary injunction is their speculation that ICE is failing to consider in its parole determinations whether individuals requesting parole are at high risk for complications from COVID-19. Plaintiffs state that they are re-asserting the two counts of their Complaint “as the basis for injunctive relief requested to enjoin Defendants from acting in a manner specifically harmful to Plaintiffs’ during the COVID19 pandemic.” (ECF No. 61-1, Pl. Mem. at 23) Indeed, one of the two “expert” declarations submitted with Plaintiffs’ filing frames the question this way: “The present case involves a question as to whether the New Orleans Immigration and Customs Enforcement (“ICE”) Field Office should use its authority and discretion to release detained asylum-seekers in order to protect them from health risks caused by potential and actual exposure to the novel Coronavirus
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(COVID-19).” (ECF No. 61-13 at ¶ 10)
Plaintiffs insist that they “are not seeking to challenge the outcome of the individualized
parole assessments itself.” (ECF No. 61-1, Pl. Mem. at 16) Instead, Plaintiffs are asking this
Court to require ICE to emphasize certain factors over others in conducting individual parole
assessments. In their motion, they explain the basis for this contention as follows:
Defendants should also be required to fully comply with all applicable regulations delineated in the Parole Directive, including those that favor the granting of parole to class members who “have serious medical conditions, where continued detention would not be appropriate,” and class members “whose continued detention is not in the public interest.” Parole Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b). As required by the Parole Directive, Defendants should incorporate into their individualized assessment of class members’ parole eligibility, the danger that COVID-19 poses to those in detention, especially those with serious medical conditions; and should weigh whether the continued detention of parole-eligible class members is in the public interest, given the danger posed by the COVID-19 outbreak.
(ECF No. 61, Pl. Mot. at 2)
Defendants already have established that this contention reflects a new claim that has not
been pled in the Complaint and that therefore is outside the scope of this lawsuit. But even were
the Court to consider it, Plaintiffs have failed to establish a likelihood of success of prevailing on
the merits of this contention for two reasons. First, nothing in the Parole Directive or referenced
regulation “favor[s] the granting of parole to class members who ‘have a serious medical
condition’” or states that continued detention is not in the public interest when a detainee has a
serious medical condition. Although the Parole Directive explains the meaning of “public
interest” in 8 C.F.R. § 212.5(b)(5) (Parole Directive § 4.4), the factors that the Parole Directive
identifies in making that determination are set forth in section 8.3 of the Parole Directive and do
not directly reference medical issues. And, while the regulation addressing parole, 8 C.F.R. §
212.5(b), refers to a “serious medical condition” as a potential basis for parole, id. § 212.5(b)(1), 25

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 26 of 36
that subsection is distinct from the “public interest” subsection, id. § 212.5(b)(2), that is specifically addressed in the Parole Directive. (Parole Directive § 4.4)
Ultimately, whether to grant parole based on the existence of a “serious medical condition” or “public interest” – in the context of COVID-19 or otherwise – is subject to ICE’s discretion based on a weighing of various factors that might be at issue in any given “case-bycase” analysis. Thus, neither the Parole Directive, nor 8 C.F.R. § 212.5(b), requires ICE to “favor” a requester’s age or medical condition over any other factor that ICE might consider in evaluating a parole request. Accordingly, Plaintiffs cannot state a claim based on the Accardi doctrine – which is the basis for their APA claims as pled in the Complaint – for ICE’s alleged failure to “favor” such factors in its individualized determinations. Nor does this Court have jurisdiction to direct ICE to do so. See Damus, 313 F. Supp. 3d at 327 (observing that “[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”); see also 8 U.S.C. § 1182(d)(5)(A) (“The [DHS Secretary] may … in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States…”); 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,” except for asylum determinations).
26

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 27 of 36
Second, Plaintiffs have failed to proffer any evidence that ICE has failed to consider an individual’s medical condition in its case-by-case analysis of parole requests in any event. The only “evidence” that Plaintiffs offer to contend that persons who suffer from medically serious conditions are not afforded individualized assessments are the outcomes of a limited number of parole determinations that Plaintiffs have identified since the onset of COVID-19 in Louisiana.10 In light of the discretionary nature of a parole determination, and the other factors that are weighed in such determinations, that exceedingly small sample size is not evidence that individualized determinations are not occurring.
Not only is the sample size too small to draw any such conclusion, but Plaintiffs proffered declarations reflect that most, if not all, of the declarants who were denied parole within the last 30 days are not within the high-risk categories identified by the CDC, which are consistent with the categories identified in the declaration accompanying Plaintiffs’ motion (ECF No. 61-12 at 7-8).11 Of the eight individuals who have proffered declarations, only four (B.A.E., K.S.R., O.M.H. and R.P.H.) were denied parole within the last 30 days and none are 65 years of age or older (the ages are: B.A.E. (no age stated); R.P.H. (50); K.S.R. (27) and O.M.H. (32))
10 The first presumptive case of COVID-19 in Louisiana was announced on March 9, 2020. See https://www.wwltv.com/article/news/health/coronavirus/coronavirus-timeline/2899204d79c-2ac6-4b27-971b-3f32be49d134. 11 Those categories include individuals 65 years and over, individuals with chronic lung disease or severe asthma, individuals with serious heart conditions, conditions that can cause a person to be immunocompromised, severe obesity, diabetes, chronic kidney disease and those undergoing dialysis, and liver disease. See https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-at-higher-risk.html.
27

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 28 of 36
In addition, of the four denied parole within the last 30 days, only two identify a specific
underlying medical condition – R.P.H. (breast cancer survivor) and O.M.H. (HIV positive and Hepatitis C) – and, of those, only O.M.H. arguably falls within a recognized high risk category.12
Notably, O.M.H. was released on his own recognizance on April 2, 2020. (Hartnett Decl. ¶ 26
and Ex. B thereto) Of the remaining two, one (K.S.R.) claims to have had the flu in early March
and the other (B.A.E.) references a muscle injury in his chest, neither of which constitutes a
high-risk category.
As regards the other four of the eight declarants, only one – S.U.R. – potentially falls
within a high-risk category as a 60 year old with hypertension and a heart murmur. (Id.) The other three do not.13 S.U.R. was granted parole on April 3, 2020. (Hartnett Decl. ¶ 26 and Ex.
B thereto)
12 R.P.H.’s assertion that she is a breast cancer survivor does not place her within a highrisk category absent evidence that R.P.H. is undergoing treatment that makes her immunecompromised, which is not asserted in her declaration. O.M.H.’s contention of suffering from Hepatitis C may place O.M.H. in a high-risk category of having liver disease. Being HIV positive, however, is not listed by the C.D.C. as a high-risk category provided the condition is being controlled. See https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html. 13 The remaining three declarants age and medical conditions are as follows according to their declarations: L.P.C (26 years old, no current medical condition identified) (ECF No. 615); T.M.F. (44 years old, no current medical condition identified other than pain from unidentified chronic injuries) (ECF No. 61-9); Y.P.T. (30 years old, fractured foot, claustrophobia, nausea, anxiety and depression) (ECF No. 61-10). To the extent these and the other declarants make representations about the medical conditions of other detainees, those statements are hearsay and should not be considered by the Court. These declarants do not purport to be medical professionals or to have access to other detainees’ medical records. Their statements, therefore, are either based on speculation or information provided to them by others. Under either scenario, the statements are inadmissible.
28

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Thus, of the eight declarants supporting Plaintiffs’ motion, the two with potentially highrisk medical conditions (O.M.H. and S.U.R.) have been released.14 The remaining six do not
claim to have medical conditions that would place them in a high-risk category, nor are they of
an age that would place them in a high-risk category. To the extent they make representations
about the medical conditions of other detainees, those assertions are inadmissible hearsay. See
supra note 13. Thus, when their conclusory assertions are set aside and their declarations are
closely examined, Plaintiffs have offered no competent evidence that individuals with serious
medical conditions are not receiving individualized determinations under the Parole Directive.
3. Plaintiffs Have Not Pled Any Claim Challenging Their Conditions Of Confinement Under The APA And Thus Their Assertions Regarding Such Conditions Fall Outside The Scope Of This Lawsuit
Although Plaintiffs have not asserted a claim in their narrowly pled Complaint challenging the conditions of their confinement under the APA,15 a large portion of their motion
for preliminary injunction and supporting evidence focuses on those conditions in the context of
the COVID-19 situation. Those allegations fall outside the scope of this narrowly framed
14 As regards O.M.H.’s recent denial of parole prior to his subsequent release, it bears mentioning that O.M.H. had received an adverse ruling by an Immigration Judge (Ex. B to Hartnett Decl.), thus increasing his potential as a flight risk as this Court previously recognized. (Mem. Op. at 13, “[a]s the Government argues, an alien facing an order of removal from an IJ presents a fundamentally different flight risk from one who is merely awaiting a hearing before an IJ”). 15 Although Plaintiffs have not brought a claim under the APA challenging the conditions of their confinement, Defendants nonetheless observe that Plaintiffs have not identified a specific final agency action, much less demonstrated exhaustion of remedies as would be necessary to assert such a claim. Vetcher v. Sessions, 316 F. Supp. 3d 70, 78-79 (D.D.C. 2018) (dismissing a challenge to the conditions of confinement under the APA because plaintiff failed to identify the policies plaintiff was challenging and how he had administratively exhausted any grievance about those policies).
29

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 30 of 36
lawsuit and should not be considered by the Court. Defendants nevertheless note the following. First, Plaintiffs’ declarants most recent
place of confinement is at four of the 23 facilities within the New Orleans Field Office, specifically, Adams, S. Louisiana, Catahoula and LaSalle. (Ex. A-B to Hartnett Decl.) Although Plaintiffs assert that there is overcrowding at the referenced facilities, none in fact are operating over capacity and many are operating under capacity. (Hartnett Decl. ¶¶ 4-23 and Ex. A thereto) Moreover, contrary to Plaintiffs’ contentions, ICE provides a sanitary environment, including by providing detainees with soap for the shower and hand soap for sink handwashing. (Hartnett Decl. ¶ 41) As described in the accompanying declaration, ICE also provides soap and paper towels that are present in bathrooms and work areas within the facilities. Everyday cleaning supplies such as soap dispensers and paper towels are routinely checked and are available for use. Detainees are encouraged to communicate with local staff when additional hygiene supplies or products are needed. (Id.)
Additionally, comprehensive protocols are in place for the protection of staff and detainees, including the appropriate use of personal protective equipment (PPE), in accordance with CDC guidance. ICE also instituted screening guidance for new detainees who arrive at facilities to identify those who meet CDC’s criteria for epidemiologic risk of exposure to COVID-19.16 ICE Health Services Corps (“IHSC”) isolates detainees with fever and/or
16 As of the time of the preparation of the accompanying declaration, there have been two confirmed cases of COVID-19 among the detainee population or staff in the facilities within the New Orleans Field Office. (Hartnett Decl. ¶ 27) On April 1, 2020, a detainee at the Pine Prairie ICE Processing Center (PPIPC), Pine Prairie, Louisiana tested positive for COVID-19. That detainee remains in isolation in a negative pressure cell within the PPIPC medical clinic. On April 5, 2020, a detainee at LaSalle Correctional Cener tested positive for COVID-19. The detainee remains under medical observation and in an isolation cell. (Id.)
30

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 31 of 36
respiratory symptoms who meet these criteria and observe them for a specified time period. IHSC staff consult with the local health department, as appropriate, to assess the need for testing. Detainees without fever or respiratory symptoms who meet epidemiologic risk criteria are monitored for 14 days. (Hartnett Decl. ¶ 38)
As explained in the accompanying declaration, detainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 are housed separately from the general population. ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as COVID-19. (Hartnett Decl. ¶ 39) ICE also transports individuals with moderate to severe symptoms, or those who require higher levels of care or monitoring, to appropriate hospitals with expertise in high-risk care. Detainees who do not have fever or symptoms, but meet CDC criteria for epidemiologic risk, are housed separately in a single cell, or as a group, depending on available space. (Id.)
As explained in the accompanying declaration, ICE has reviewed its “at risk population” to include the elderly, pregnant detainees, and others with compromised immune systems to ensure that detention is appropriate given the circumstances. Custody determinations are made on a case-by-case basis at each detention facility and include, among other factors, the public safety risk that such release could create and the requirement to detain certain aliens under law. ICE will continue to review its “at risk population” in the days and weeks ahead when deciding whether any detainees should be released from custody. (Hartnett Decl. ¶ 42)
Thus, even if the conditions at the facilities were relevant to this lawsuit as narrowly pled in the Complaint, which Defendants dispute, Plaintiffs’ limited contentions are insufficient to
31

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 32 of 36
establish that conditions at the specific facilities they discuss in their declarations, or at other facilities within the New Orleans Field Office, are unsafe in the current environment.
B. Plaintiffs Have Not Shown Irreparable Injury “Regardless of how the other three factors are analyzed, it is required that the movant demonstrate an irreparable injury.” Mdewakanton Sioux Indians of Minnesota, 255 F. Supp. 3d 48, 51 (D.D.C. 2017) (footnote omitted). “The basis of injunctive relief in the federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974); see also CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). The Supreme Court’s “frequently reiterated standard requires Petitioners seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original). Moreover, conclusory or speculative allegations are not enough to establish a likelihood of irreparable harm. Henke, 842 F. Supp. 2d at 59; see Bartko, 2015 WL 13673371 at *2 (“[t]he Court need not grant injunctive relief ‘against something merely feared as liable to occur at some indefinite time’”). “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22; Northeastern Fla. Chapter of Ass’n of Gen. Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (irreparable injury must be neither remote nor speculative, but actual and imminent). Petitioners cannot make this showing. Here, the Parole Directive permits detainees to request re-determinations of a parole denial and does not set any limit on how many such re-determinations can be requested. (2009 Parole Directive ¶ 8.9) Accordingly, to the extent any detainee has a concern about COVID-19
32

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as it pertains to their specific medical situation, the detainee can seek a re-determination without the need of an order from this Court. As this Court can neither dictate the outcome of that determination nor the factors that ICE must consider in any such re-determination, the relief requested in this motion – that ICE conduct re-determinations of all detainees – would afford detainees a procedure that already is available to them. Accordingly, Plaintiffs have failed to establish that any detainee would suffer irreparable harm if the injunction request is denied.
In asserting the existence of irreparable harm, Plaintiffs resort to speculation and arguments that fail to account for the limited relief that they seek. They contend that, “[w]ithout injunctive relief, present and future class members are likely to become infected with COVID-19.” (ECF No. 61-1, Pl. Mem. at 43) Not only is that assertion speculative, but it is misplaced in the context of the specific injunctive relief requested in this motion and the narrow framework of this lawsuit. Equally misplaced are Plaintiffs’ arguments that existing protocols at ICE facilities are insufficient to address the COVID-19 situation. All such contentions go far beyond the four corners of the 2009 Parole Directive, which is the sole basis for this lawsuit, as well as the specific relief requested in the instant motion, which is that the Court order ICE to conduct automatic re-determinations of parole denials for all detainees within the Mons class. Indeed, although Plaintiffs profess that they “are not seeking to challenge the outcome of the individualized parole assessments” themselves, and acknowledge that the Court would lack jurisdiction over such a challenge (ECF No. 61-1, Pl. Mem. at 16), their arguments for irreparable harm are premised on the proposition that all detainees must be released, the very claim they disavow. Accordingly, Plaintiffs’ assertion that they are “likely to become infected
33

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 34 of 36
with COVID-19” if re-determinations are not ordered fails to account for the specific injunctive relief that they seek or the narrow scope of this lawsuit, and should be rejected.
An injunction is “unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged [] -- a ‘likelihood of substantial and immediate irreparable injury.’” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Accordingly, Plaintiffs have not met their burden to show that they will suffer irreparable harm in the absence of the preliminary relief they seek.
C. The Balance Of Interests And Public Interest Factors Favor Defendants The final two factors required for preliminary injunctive relief – harm to the opposing party and the public interest– merge when the Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). Additionally, courts should “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. RomeroBarcelo, 456 U.S. 305, 312-13 (1982). The balance of hardships and public interest weigh in favor of Defendants. Interference with the manner in which ICE exercises its discretionary authority, 8 U.S.C. § 1182(d)(5)(A), and carries out its statutory mandates, 8 U.S.C. § 1225(b), on a preliminary basis significantly harms the Government and cannot truly be said to be in the public interest. It is well-settled that the public’s interest in enforcement of U.S. immigration laws is paramount, and even more so where, as here, Congress has exercised its plenary legislative authority and control over the Nation’s border. United States v. Brignoni-Ponce, 422 U.S. 873, 878-79 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in
34

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 35 of 36
enforcement of the immigration laws is significant.”); see also Nken, 556 U.S. at 435 (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal marks omitted)).
Plaintiffs ask for an order directing ICE to conduct re-determinations of all detainees within the facilities of the New Orleans Field Office, without regard to their age, medical condition or desire for such a re-determination. Given the vast expanse and indiscriminate nature of Plaintiffs’ requested order, the balance of interests clearly favors Defendants. Plaintiffs’ requested order is not narrowly tailored as required when seeking injunction relief, State of Neb. Dep't of Health & Human Servs. v. U.S. Dep't of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006), and would require ICE to direct resources away from other aspects of its mission at a particularly challenging time. Because Plaintiffs cannot show that the balance of hardships and public interest tips in their favor, the Court should deny Plaintiffs’ request for a preliminary injunction.
CONCLUSION For the foregoing reasons, the motion for preliminary injunction should be denied.
Respectfully submitted, TIMOTHY J. SHEA, D.C. Bar #437437 United States Attorney DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief By: ____/s/_____________________ JEREMY S. SIMON, D.C. BAR #447956
35

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 36 of 36 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov Counsel for Defendants
36

Case 1:19-cv-01593-JEB Document 64-1 Filed 04/07/20 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al., Plaintiffs,
v. Chad Wolf, et al.,
Defendants.

)

)

)

)

No. 19-cv-1593 (JEB)

)

)

)

)

)

ORDER

Upon consideration of Plaintiffs’ motion for preliminary injunction, the opposition

thereto, and the entire record herein, it is this _________ day of April 2020,

ORDERED that Plaintiffs’ motion is DENIED.

.

SO ORDERED.

_______________________ United States District Judge

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Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 11 of 22 Exhibit "A" to Hartnett Declaration

General Facility Information

ICE Capacity

DETLOC
1 JENADLA 2 TALLAMS 3 PINEPLA 4 JKPCCLA 5 LAWINCI 6 RWCCMLA 7 RVRCCLA 8 ETOWAAL 9 BOSSRLA 10 BASILLA 11 ADAMSMS 12 APPSCLA 13 CATAHLA 14 DEKALAL 15 STTAMLA 16 DAVIDTN 17 BALDWAL 18 TNWESDF 19 MNTGMAL 20 LONPDAR 21 SEBASAR 22 23 MILLRAR

Name
LASALLE ICE PROCESSING CENTER (JENA) TALLAHATCHIE CO CORR FACILITY PINE PRAIRIE ICE PROCESSING CENTER JACKSON PARISH CORRECTIONAL CENTER WINN CORRECTIONAL CENTER RICHWOOD CORRECTIONAL CENTER RIVER CORRECTIONAL CENTER ETOWAH COUNTY JAIL (ALABAMA) BOSSIER PARISH COR. CENTER SOUTH LOUISIANA DETENTION CENTER ADAMS COUNTY DET CENTER ALLEN PARISH PUBLIC SAFETY COMPLEX CATAHOULA CORRECTIONAL CENTER DEKALB COUNTY DETENTION CENTER SAINT TAMMANY PARISH JAIL DAVIDSON COUNTY SHERIFF BALDWIN COUNTY CORRECTIONAL CENTER WESTERN TENNESSEE DETENTION FACILITY MONTGOMERY CITY JAIL LONOKE POLICE DEPARTMENT SEBASTIAN COUNTY DETENTION CENTER LASALLE CORRECTIONAL CENTER MILLER COUNTY JAIL

City

State

JENA

LA

TUTWILER

MS

PINE PRAIRIE LA

JONESBORO LA

WINNFIELD

LA

RICHWOOD

LA

FERRIDAY

LA

GADSDEN

AL

PLAIN DEALING LA

BASILE

LA

NATCHEZ

MS

OBERLIN

LA

HARRISONBURG LA

FORT PAYNE AL

COVINGTON

LA

NASHVILLE

TN

BAY MINETTE AL

MASON

TN

MONTGOMERY AL

LONOKE

AR

FORT SMITH

AR

OLLA

LA

TEXARKANA

AR

AOR
NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL NOL

Type
IGSA USMS IGA IGSA IGSA IGSA IGSA IGSA USMS IGA USMS IGA IGSA BOP IGSA IGSA USMS IGA IGSA IGSA IGSA USMS IGA IGSA IGSA USMS IGA IGSA USMS IGA

Capacity

Current

population

1,170

1080

Not Used

730

428

1,000

392

1,553

930

1,000

218

650

136

320

118

Not Used

1,000

373

2,300

920

260

68

750

723

40

0

Not used

Not Used

3

0

15

0

3

0

3

0

5

0

650

225

3

0

Case 1:19-cv-01593-JEExBhibiDt "oBc"umtoeHnatr6tn4e-t2t DeFcilleardat0io4n/07/20 Page 12 of 22

Name B.A.E. K.S.R. L.P.C. O.M.H.
R.P.H. S.U.R.
T.M.F. Y.P.T.

Case Status Pending individual hearing with immigration judge on 5/13/20. Pending master calendar hearing with immigration judge on 4/28/20 Pending master hearing with immigration judge on 4/16/20 Ordered removed by immigration judge on 10/8/19. Appeal pending with Board of Immigration Appeals. Pending master calendar hearing with immigration judge on 5/7/20. Ordered removed by immigration judge on 8/28/19. Appeal pending with Board of Immigration Appeals. Immigration judge granted relief on 3/10/20. DHS has reserved appeal. Ordered removed by immigration judge on 1/10/20. Appeal pending with Board of Immigration Appeals.

Parole Status Denied – 3/29/20
Denied – 3/12/20
Denied1/30/20
Denied – 3/30/20
Denied – 3/12/20
Granted – 4/3/20
Denied – 1/31/20
Denied – 2/28/20

Detention Status LaSalle ICE Processing Center (LIPC)
South Louisiana ICE Processing Center (SLIPC) South Louisiana ICE Processing Center (SLIPC) LaSalle Correctional Center (LCC) – Released on own recognizance on 4/2/20.
South Louisiana ICE Processing Center (SLIPC) Adams County Detention Center (ACDC) – Released on 4/3/20.
LaSalle ICE Processing Center (LIPC)
Catahoula Correctional Center

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 13 of 22 Exhibit "C" to Hartnett Declaration

IHSC Interim Recommendations for Risk Assessment of Persons with Potential 2019-Novel Coronavirus (COVID-19) Exposure in Travel-, Community-, or Custody Settings1
Updated March 11, 2020

Exposure Risk Category
High risk
Medium risk (assumes not having any exposures in the high-risk category)

Centers for Disease Control and Prevention

(CDC) Definition (as of March 7, 2020)

IHSC Detention Setting Definition

• Travel from Hubei Province, China or Iran

• Travel from or through Hubei Province, China

or Iran

• Living in the same household as, being an intimate • Housing in the same 2–4-person cell or

partner of, or providing care in a nonhealthcare

sleeping with head position within 6 feet of a

setting (such as a home) for a person with

person with symptomatic laboratory-confirmed

symptomatic laboratory-confirmed COVID-19

COVID-19

infection without using recommended

precautions for home care and home isolation

• Travel from a country with widespread sustained • Travel from or through international area(s)

transmission, other than Hubei Province, China or with sustained community transmission* in the

Iran

past 14 days other than Hubei Province, China

• Travel from a country with sustained community

or Iran

transmission

*Please see CDC website listing of geographic

area(s) with widespread or sustained community

transmission at

https://www.cdc.gov/coronavirus/2019-

ncov/hcp/clinical-criteria.html

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 14 of 22

Exposure Risk Category
Low risk (assumes not having any exposures in the high- or medium risk categories)

Centers for Disease Control and Prevention (CDC) Definition (as of March 7, 2020)
• Close contact with a person with symptomatic laboratory-confirmed COVID-19
• On an aircraft, being seated within 6 feet (two meters) of a traveler with symptomatic laboratoryconfirmed COVID-19 infection; this distance correlates approximately with 2 seats in each direction
• Living in the same household as, an intimate partner of, or caring for a person in a nonhealthcare setting (such as a home) to a person with symptomatic laboratory-confirmed COVID19 infection while consistently using recommended precautions for home care and home isolation

IHSC Detention Setting Definition • Close contact2 with a person with symptomatic
laboratory-confirmed COVID-19) • On an aircraft, bus, or van, being seated within
6 feet (two meters) of a traveler with symptomatic laboratory-confirmed COVID19; this distance correlates approximately with 2 rows or 2 seats in each direction • Housing in the same unit as a person with symptomatic laboratory-confirmed COVID-19 but not in the same 2–4- person cell and not sleeping with head position within 6 feet of a person with symptomatic laboratoryconfirmed COVID-19

• Travel from or through any other country • Being in the same indoor environment (e.g., a
classroom, a hospital waiting room) as a person with symptomatic laboratory-confirmed COVID19 for a prolonged period of time but not meeting the definition of close contact
• On an aircraft, being seated within two rows of a traveler with symptomatic laboratory-confirmed 2019-nCoV infection but not within 6 feet (2 meters) (refer to graphic) AND not having any exposures that meet a medium- or a high-risk definition (refer to graphic)

• Travel from or through any other country
• Being in the same indoor environment (e.g., general detention population, dining hall, recreation, work duty, library, or religious services) as a person with symptomatic laboratory-confirmed COVID-19 for a prolonged period of time but not meeting the definition of close contact2
• On an aircraft, bus, or van being seated within two rows of a traveler with symptomatic laboratory-confirmed COVID-19 but not within 6 feet (2 meters) (refer to graphic)

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 15 of 22

Exposure Risk Category
No identifiable risk
No risk

Centers for Disease Control and Prevention (CDC) Definition (as of March 7, 2020) N/A
Interactions with a person with symptomatic laboratory-confirmed COVID-19 infection that do not meet any of the high-, medium- or low-risk conditions above, such as walking by the person or being briefly in the same room.
N/A

IHSC Detention Setting Definition Direct close contact2 with a person under investigation for COVID-19 that is pending laboratory confirmation Interactions with a person with symptomatic laboratory-confirmed COVID-19 or a person under investigation for COVID-19 that do not meet any of the high-, medium- or low-risk conditions above, such as walking by the person or being briefly in the same room. Exposure to an asymptomatic person who was exposed to another person with high-, medium, low-, or no identifiable risk of exposure to COVID-19

Graphic

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 16 of 22

Sample seating chart for a COVID-19 aircraft contact investigation showing risk levels based on distance from the infected traveler.1 1Source and adapted from CDC | Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Cases 2Close contact is defined as:
a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case
– or –
b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on)

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 17 of 22

IHSC Interim Recommended Actions Based on Risk Assessment of Persons with Potential 2019 Novel Coronavirus (COVID19) Exposure in Travel-, Community-, or Custody Settings1

Updated March 11, 2020

Exposure Risk Category

CDC Recommended Management (as of March 7, 2020)

IHSC Detention Setting Selected Recommended Actions (used in conjunction with Reference Sheet)

SYMPTOMATIC [refer also to 2019 Novel Coronavirus Resource Page]

High risk

• ISOLATION

• Immediate isolation with consideration of • Promptly place a surgical mask over the patient’s face

public health orders

and nose

• Public health assessment to determine the • Refer to a provider

need for medical evaluation; if medical • Promptly place in an airborne infection isolation room

evaluation warranted, diagnostic testing

(AII); priority for AII room use

should be guided by CDC’s PUI definition • Consult with the local health department for guidance

• If medical evaluation is needed, it should on testing for COVID-19

occur with pre-notification to the receiving HCF and EMS, if EMS transport indicated, and with all recommended infection control precautions in place.

• •

Consult with Regional Clinical Director and Infectious Disease Program Implement administrative and environmental controls

• Controlled travel: Air travel only via air • Implement strict hand hygiene

medical transport. Local travel is only

• Implement standard precautions

allowed by medical transport (e.g.,

• Implement transmission-based precautions; see

ambulance) or private vehicle while

Reducing the Risk of COVID-19 Transmission

symptomatic person is wearing a face

• Request medical hold

mask.

• Recommend no transfer or transport

• Document in Lower Respiratory Illness Tracking Tool

Medium risk

• Self-isolation

• ISOLATION

• Public health assessment to determine the • Promptly place a surgical mask over the patient’s face

need for medical evaluation; if medical

and nose

evaluation warranted, diagnostic testing • Refer to a provider

should be guided by CDC’s PUI definition

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 18 of 22

Exposure Risk Category

CDC Recommended Management (as of March 7, 2020)

IHSC Detention Setting Selected Recommended Actions (used in conjunction with Reference Sheet)

• If medical evaluation is needed, it should • Promptly place in an AII room; priority for AII room

ideally occur with pre-notification to the use

receiving HCF and EMS, if EMS transport • Consult with the local health department for guidance

indicated, and with all recommended

on testing for COVID-19

infection control precautions in place.

• Consult with Regional Clinical Director and Infectious

• Controlled travel: Air travel only via air

Disease Program

medical transport. Local travel is only

• Implement administrative and environmental controls

allowed by medical transport (e.g., ambulance) or private vehicle while symptomatic person is wearing a face mask.

• Implement strict hand hygiene • Implement standard precautions • Implement transmission-based precautions; see
Reducing the Risk of COVID-19 Transmission

• Request medical hold

• Recommend no transfer or transport

• Document in Lower Respiratory Illness Tracking Tool

Low risk

• ISOLATION

• Promptly place in an AII room if available, or other

single room

• Self-isolation, social distancing

• Use discretion to prioritize AII room needs, including

• Person should seek health advice to

high- and medium- risk and symptoms consistent with

determine if medical evaluation is needed. COVID-19, tuberculosis (TB), influenza, varicella, etc.

• •

If sought, medical evaluation and care should be guided by clinical presentation; diagnostic testing for COVID-19 should be guided by CDC’s PUI definition.

• •

Refer to a provider Consult with the local health department for guidance on testing for COVID-19

Travel on commercial conveyances should • Consult with Regional Clinical Director and Infectious

be postponed until no longer symptomatic. Disease Program

• Implement administrative and environmental controls

• Implement strict hand hygiene

• Implement standard precautions

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 19 of 22

Exposure Risk Category

CDC Recommended Management (as of March 7, 2020)

IHSC Detention Setting Selected Recommended Actions (used in conjunction with Reference Sheet)

• Implement transmission-based precautions; see Reducing the Risk of COVID-19 Transmission
• Request medical hold • Recommend no transfer or transport • Document in Lower Respiratory Illness Tracking Tool

No Identifiable Risk2

• Self-isolation, social distancing • Person should seek health advice to
determine if medical evaluation is needed. • If sought, medical evaluation and care
should be guided by clinical presentation; diagnostic testing for COVID-19 should be guided by CDC’s PUI definition. • Travel on commercial conveyances should be postponed until no longer symptomatic.

• ISOLATION • Promptly place in an AII room if available, or other
single room • Use discretion to prioritize AII room needs, including
high- and medium- risk and symptoms consistent with COVID-19, tuberculosis (TB), influenza, varicella, etc. • Refer to a provider • Consult with the local health department for guidance on testing for COVID-19 • Consult with Regional Clinical Director and Infectious Disease Program • Implement administrative and environmental controls • Implement strict hand hygiene • Implement standard precautions • Implement transmission-based precautions; see Reducing the Risk of COVID-19 Transmission

No risk

N/A

No restriction

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 20 of 22

High risk Medium risk

ASYMPTOMATIC

[refer also to 2019 Novel Coronavirus Resource Page]

• MONITORING

• Cohort alone or as a group with other asymptomatic

persons under monitoring for 14 days after initial DHS

apprehension

• Quarantine (voluntary or under public

• Prioritize medical housing unit needs based on acuity

health orders) in a location to be determined and suspected or known contagiousness

by public health authorities.

• Implement administrative and environmental controls

• No public activities. • Daily active monitoring, if possible based
on local priorities

• Implement strict hand hygiene • Implement standard precautions

• Controlled travel

• See Reducing the Risk of COVID-19 Transmission

• Monitor daily for fever and symptoms

• Add medical alert

• Recommend no transfer or transport during monitoring

period

• Document in Lower Respiratory Illness Tracking Tool

Close contacts in this category: • Recommendation to remain at home or in a comparable setting • Practice social distancing • Active monitoring as determined by local priorities • Recommendation to postpone longdistance travel on commercial conveyances
Travelers from mainland China (outside Hubei Province) or Iran
• Recommendation to remain at home or in a comparable setting
• Practice social distancing

• MONITORING • Cohort alone or as a group with other asymptomatic
persons under monitoring for 14 days after initial DHS apprehension • Prioritize medical housing unit needs based on acuity and suspected or known contagiousness • Implement administrative and environmental controls • Implement strict hand hygiene • Implement standard precautions • See Reducing the Risk of COVID-19 Transmission • Monitor daily for fever and symptoms • Add medical alert • Recommend no transfer or transport during monitoring period

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 21 of 22

• Self-monitoring with public health supervision as determined by local priorities
• Recommendation to postpone additional long-distance travel on commercial conveyances after they reach their final destination
Travelers from other country with widespread transmission
• Recommendation to remain at home or in a comparable setting,
• Practice social distancing • Self-monitoring • Recommendation to postpone additional
long-distance travel on commercial conveyances after they reach their final destination Travelers from country with sustained community transmission • Practice social distancing • Self-observation

• Document in Lower Respiratory Illness Tracking Tool

Case 1:19-cv-01593-JEB Document 64-2 Filed 04/07/20 Page 22 of 22

Low risk

• No restriction on movement • Self-observation

• MONITORING • Cohort alone or as a group with other asymptomatic
persons under monitoring for 14 days after initial DHS apprehension • Prioritize medical housing unit needs based on acuity and suspected or known contagiousness • Implement administrative and environmental controls • Implement strict hand hygiene • Implement standard precautions • See Reducing the Risk of COVID-19 Transmission • Monitor daily for fever and symptoms • Document in Lower Respiratory Illness Tracking Tool

No identifiable risk

None

No restriction

No risk

N/A

No restriction

1Source and adapted from CDC | Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential

Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Case

Case 1:19-cv-01593-JEB Document 64-3 Filed 04/07/20 Page 1 of 2

Simon, Jeremy (USADC)

EXHIBIT 1

From: Sent: To: Cc: Subject:

Simon, Jeremy (USADC) Friday, March 20, 2020 5:59 PM Victoria Mesa Luz Lopez; Bruce Hamilton; Mich Gonzalez; Christina LaRocca RE: Heredia-Mons v. Wolf- request for information

Victoria,
Thank you for the email. ICE has made available information on its website addressing issues pertaining to the Coronavirus ‐‐ see www.ice.gov/covid19 ‐‐ and, in response to your question below, I refer you to the sections discussing detention/visitation at detention facilities that can be found at this link.
In terms of any motion for TRO along the lines you outline below, Defendants would oppose any such motion. While Defendants’ position will be set forth more fully in its opposition, it bears mentioning that the only claim presently in this case is an APA claim alleging non‐compliance by ICE with the provisions of the Parole Directive. The TRO motion that you have outlined below goes well beyond the limited scope of this lawsuit and, in effect, would be asking the Court to make parole adjudications – i.e., to, in effect, order the granting of parole to all members of the Mons class. The court, however, already has recognized that it has no jurisdiction over the parole determinations themselves. See Damus, 313 F. Supp. 3d at 327 (observing that “[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”).
Please feel free to contact me if you have any questions regarding Defendants’ position.
Thanks.
Jeremy
From: Victoria Mesa <victoria.mesa@splcenter.org> Sent: Friday, March 20, 2020 1:05 PM To: Simon, Jeremy (USADC) <JSimon@usa.doj.gov> Cc: Luz Lopez <luz.lopez@splcenter.org>; Bruce Hamilton <bhamilton@laaclu.org>; Mich Gonzalez <mich.gonzalez@splcenter.org>; Christina LaRocca <christina.larocca@splcenter.org> Subject: Heredia‐Mons v. Wolf‐ request for information
Good afternoon, Jeremy,
On behalf of the Heredia Mons class, we are writing to request information on the procedures for the prevention and management of COVID‐19 at all ICE Facilities under the jurisdiction of the New Orleans ICE Field Office.
As you know, CDC guidance provides that older adults and people who have chronic medical conditions including heart disease, asthma, HIV, diabetes, and lung disease are at higher risk for getting very sick or dying from COVID‐19. The CDC advises that these higher risk people take precautions such as avoiding crowds and close contact with others. Where there is COVID‐19 spreading in the community, the CDC recommends that these higher risk individuals take extra measures including increasing the distance between themselves and others.
1

Case 1:19-cv-01593-JEB Document 64-3 Filed 04/07/20 Page 2 of 2 Moreover, the disease quickly spreads in environments where persons are in close proximity, as is the case with our class members, who find themselves in civil detention awaiting the resolution of their asylum claims. Our class members cannot protect themselves through tools like social distancing, that the CDC and most states are currently advocating for the population at‐large. We ask in good faith for the immediate release from detention all of Heredia Mons class members, particularly those who are at high risk of serious illness or even death, including people 60 and older, those with the above‐named underlying health conditions, people who have weakened immune systems, and people who are pregnant or suffering from other serious medical issues. In the event that the New Orleans ICE Field office is not willing to release our clients, please advise whether your clients will oppose Plaintiffs’ filing of a Temporary Restraining Order seeking release of Heredia Mons class members, and enjoining the New Orleans ICE Field Office from detaining any future class members, until the abatement of this pandemic. Please promptly advise us whether your clients wish to further confer on this matter. Otherwise, we will proceed to file the above‐referenced Motion for a Temporary Restraining Order with the Court. Sincerely,
Victoria Mesa-Estrada Senior Staff Attorney | Immigrant Justice Project Southern Poverty Law Center T 786.347.2056 C 786.216.9168 victoria.mesa@splcenter.org | www.splcenter.org
This e‐mail and any attachments are confidential and may be protected by legal privilege. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of this e‐mail or any attachment is prohibited. If you have received this e‐mail in error, please notify The Southern Poverty Law Center immediately by returning it to the sender and delete this copy from your system. Thank you for your cooperation.
2

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al., Plaintiffs,
v. Chad Wolf, et al.,
Defendants.

)

)

)

)

No. 19-cv-1593 (JEB)

)

)

)

)

)

DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Defendants Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security (“DHS”); Matthew T. Albence, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”); Nathalie Asher, Acting Executive Associate Director of ICE Enforcement and Removal Operations; and George Lund III, Director of ICE’s New Orleans Field Office, in their official capacities (collectively, “Defendants”), file this opposition to Plaintiffs’ motion for preliminary injunction.
SUMMARY OF ARGUMENT Plaintiffs profess that they “are not seeking to challenge the outcome of the individualized parole assessments” themselves, but only to obtain an order from the Court requiring ICE to “immediately administer to all present and future class members individualized parole assessments, in a method consist[ent] with the applicable regulations and standards of the [2009 Parole] Directive.” (ECF No. 61-1, Pl. Mem. at 16) But this Court already issued a preliminary injunction on September 5, 2019, directing ICE to conduct individualized assessments of parole requests made by asylum seekers who have obtained a credible fear
1

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 2 of 36
determination and who are detained at facilities within the New Orleans Field Office. Thus, if Plaintiffs’ assertion is to be credited, there is no need for the Court to issue another preliminary injunction that is duplicative of the one already in place. Nor could Plaintiffs establish irreparable harm from the absence of an additional order that would be redundant of the existing one.
Although Plaintiffs contend as the basis for seeking duplicative relief that Defendants “continue to defy this Court’s injunction” (ECF No. 61-1, Pl. Mem. at 16; ECF No. 61, Pl. Mot. at 1), they have failed to support that contention. They acknowledge that recent monthly reports by the agency reflect parole grant rates approaching 40 percent at some facilities, which is an increase from near zero at the time Plaintiffs’ original motion for preliminary injunction was filed. (ECF No. 61-1, Pl. Mem. at 31-32) Based on this Court’s prior analysis, which considered the near-zero parole grant rate to be indicative of non-compliance with the Parole Directive, this substantial increase in grant rates demonstrates that individualized determinations are occurring consistent with the Court’s September 5, 2019 order.1 Moreover, it is likewise telling that, of the hundreds of parole determinations and re-determinations that have occurred since the Court’s September 5, 2019 preliminary injunction order, Plaintiffs proffer declarations of only eight detainees. And those declarants fail to identify any recent instances of noncompliance with the Parole Directive, but instead reference a few, isolated instances of alleged

1

Defendants continue to maintain that the use of grant rates as a benchmark for

compliance with the Parole Directive is improper, but, as that is something that this Court (and

Plaintiffs) have previously relied on as being indicative of non-compliance over Defendants’

objection, consistency demands that the Court likewise recognize that a substantial increase in

grants necessarily is evidence of compliance.

2

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 3 of 36

non-compliance that allegedly occurred months ago, with some even pre-dating the Court’s September 5, 2019 order. Thus, Plaintiffs’ suggestion that their motion is necessitated by noncompliance with the Court’s existing order is an obvious pretext, particularly given that other mechanism are available to Plaintiffs for bringing isolated issues of alleged non-compliance to the Court’s attention as they have done previously. (see, e.g., ECF No. 53)2
Thus, what is at issue here is Plaintiffs’ attempt to shoehorn the COVID-19 situation into this narrowly framed Administrative Procedure Act (“APA”) case. Indeed, when Plaintiffs met and conferred with undersigned counsel regarding this motion by email dated March 20, 2020 (as referenced in ECF No. 61, Pl. Mot. at 2, “Local Rule 7(m) Statement”), they advised that they would be filing an entirely different motion from what actually has been filed. At that time, they described the motion as one for “a Temporary Restraining Order seeking release of Heredia Mons class members, and enjoining the New Orleans ICE Field Office from detaining any future class members, until the abatement of this pandemic.” (Ex. 1 hereto)
In response to Plaintiffs’ March 20, 2020 email, undersigned counsel observed that “[t]he TRO motion that you have outlined below goes well beyond the limited scope of this lawsuit and, in effect, would be asking the Court to make parole adjudications – i.e., to, in effect, order the granting of parole to all members of the Mons class. The court, however, already has

2

At the status conference on January 7, 2020, the Court also discussed with the parties

possible recourse for Plaintiffs in the event Defendants’ statistics failed to improve, and

renewing their preliminary injunction motion was not an option that the Court identified. (Tr. at

23-24) Defendants’ statistics, of course, have improved significantly since that time. And, in

the recent status report, Plaintiffs have opposed Defendants’ request for a summary judgment

briefing schedule on the basis that more monthly reports are needed “for this Court to reach a

sound, well-informed conclusion regarding Defendants’ compliance with the Parole Directive.”

(ECF No. 63 at 4)

.

3

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 4 of 36

recognized that it has no jurisdiction over the parole determinations themselves. See Damus, 313 F. Supp. 3d at 327 (observing that “[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”).” (Id.)
Having abandoned asking this Court to order the release of all detainees outright, Plaintiffs now are asking this Court to order automatic re-determinations under the 2009 Parole Directive for all detainees within the New Orleans Field Office who fall within the broadly defined Mons class that take into consideration the detainee’s age and medical conditions – and, indeed, “favor” those factors over others – in light of the COVID-19 situation. (ECF No. 61, Pl. Mot. at 2) This Court, however, lacks jurisdiction to entertain a requested injunction that exceeds the scope of the narrow framework of this lawsuit as pled in the Complaint, which is confined to the four corners of the 2009 Parole Directive and alleged non-compliance with that directive based on allegations wholly unrelated to COVID-19.
Aside from this threshold jurisdictional defect, Plaintiffs misunderstand the limited scope of the Parole Directive and the resulting narrow scope of their APA claim in this lawsuit.3 Although the Parole Directive sets forth certain procedures to be followed in evaluating individual parole requests, including making individualized determinations, nothing in the Parole Directive or the overarching regulation, 8 C.F.R. § 212.5(b), requires the granting of parole based on any one, or combination, of the factors Plaintiffs identify. Nor does the Parole

3

Much of Plaintiffs’ motion re-iterates arguments already addressed by the Court in

connection with briefing on Defendants’ motion to dismiss and Plaintiffs’ prior motion for

preliminary injunction. Recognizing that the Court already has resolved those arguments in its

prior order, Defendants are not reiterating their position here, but incorporate their prior filings in

that regard by reference and reserve all rights in that regard.

4

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 5 of 36
Directive dictate how such factors should be balanced against other competing factors that are relevant to any particular parole determination. Such decisions and balancing of competing factors remain within ICE’s discretion under the Parole Directive. As the applicable regulations make clear, parole is to be assessed on a “case-by-case basis,” 8 C.F.R. § 212.5(b), and whether a medical condition warrants parole in any specific individual situation is a determination entirely within ICE’s discretion. Id. § 212.5(b)(1).
Thus, Plaintiffs cannot establish a likelihood of success on their claim that ICE has violated the Parole Directive by allegedly failing in its individualized determinations to afford greater weight to an individual’s age or medical condition in the context of the current COVID19 situation than to other factors. Plaintiffs have likewise failed to proffer any evidence that detainees with medical conditions placing them at high-risk for COVID-19 have not received individualized parole determinations. Indeed, of the eight individuals who submitted declarations in support of Plaintiffs’ motion, only two could be considered high-risk based on the CDC criteria – O.M.H. (HIV positive and Hepatitis C) and S.U.R. (60 year old with hypertension and a heart murmur) – and both recently have been released from detention. (Hartnett Decl. ¶ 26 and Ex. B thereto)
Plaintiffs, moreover, cannot establish irreparable harm if they are not afforded the relief that they seek, namely, an order from the Court directing ICE to conduct new parole determinations for all detainees within the Mons class, regardless of whether a re-determination is requested, and without regard to a detainee’s age or medical situation. The Parole Directive already permits a detainee to request a re-determination of a prior denial and affords ICE discretion in how to conduct that re-determination. (2009 Parole Directive ¶ 8.9) Accordingly,
5

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 6 of 36

detainees who are concerned about COVID-19 based on their age or medical condition can request a re-determination under the directive and thus would suffer no irreparable harm if the relief requested by Plaintiffs (court-ordered re-determinations) is not granted.
Finally, the order that Plaintiffs request is not in the public interest. It is not narrowly tailored to those detainees who may fall within high-risk categories identified by the CDC, but would cover all detainees regardless of their age, medical condition or whether they even want a re-determination. Accordingly, it would require the unnecessary expenditure of resources by ICE that could otherwise be used to fulfill ICE’s mission at a particularly challenging time.
Ultimately, it appears that Plaintiffs may be using the vehicle of a preliminary injunction motion as a means of inviting this Court to assume a role in monitoring the conditions of the detention facilities within the New Orleans Field Office. This Court, however, lacks jurisdiction to assume such a role based on the narrowly pled APA claims that are before this Court, which rest entirely on the so-called Accardi doctrine as their legal basis.4 Those claims are limited to the four corners of the 2009 Parole Directive, and the procedures established by that directive on ICE’s otherwise unfettered discretion in making parole determinations. Because that directive does not speak to the conditions of the detention facilities, and the conditions at the facilities did not form the basis for Plaintiffs’ APA claims under the Accardi doctrine as pled in the Complaint, any attempt by Plaintiffs to ask this Court to assume a role outside the scope of this lawsuit should be summarily rejected.

4

Defendants are aware that this Court has sought information from ICE regarding the

conditions at certain Family Residence Centers at issue in O.M.G. v. Wolf, Case No. 20-786

(JEB), but the Complaint in that case asserted claims specifically based on the conditions at those

facilities. Those claims as pled were not narrowly tailored as here to the four-corners of the

Parole Directive.

6

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 7 of 36
ARGUMENT I. This Case As Pled Is Limited To The Four Corners Of The Parole Directive.
This case as pled by Plaintiffs is limited to two claims under the APA based on ICE’s alleged categorical denial of parole for asylum seekers who have been issued a credible fear determination and who are detained at facilities within ICE’s New Orleans Field Office. Specifically, Plaintiffs alleged that, at the time the Complaint was filed in May 2019, DHS had “effectively rescinded the 2009 Parole Directive” in the New Orleans ICE Field Office and that the parole determinations pertaining to them, as well as to members of the putative class, were denied categorically without an individualized determination. (Compl. ¶¶ 129-137) In support of these claims, they allege that parole was denied in “virtually all cases in 2018” (Compl. ¶ 48) and also cite to a statement made in November 2018 by the Assistant Field Office Director for the New Orleans Field Office, Brian Acuna, that they view as an admission that the New Orleans Field Office was not following the directive at that time.5
Plaintiffs argued that the alleged “categorical denial” of parole violates the provisions of the 2009 Parole Directive, which Plaintiffs contends imposes certain requirements on ICE in the manner by which it exercises its discretion in making parole determinations that are subject to that directive. Importantly, of the five categories of aliens who may meet the parole standards as set forth in 8 C.F.R. § 212.5(b), the Parole Directive seeks to interpret only one of those five categories, specifically, subsection (b)(5), which refers to “[a]liens whose continued detention is
5 Mr. Acuna has clarified that he misspoke in connection with the response that he provided in November 2018, and confirms that all offices within the New Orleans area of responsibility are adjudicating parole requests in accordance with the 2009 parole directive.” (ECF No. 26-3, Acuna Decl. ¶ 14) In any event, this allegation does not speak to whether ICE currently is complying with the Parole Directive.
7

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 8 of 36
not in the public interest.” The Parole Directive explains how the term “public interest” is to be interpreted to “guide” the exercise of the agency’s discretion with respect to this specific subsection and also “mandate[s] uniform record-keeping and review requirements” for parole decisions under section 212.5(b). (Parole Directive ¶ 4.4) The factors that the Parole Directive identifies for consideration in evaluating the “public interest” specifically include the individual’s potential as a flight risk and the individual’s potential danger to the community. Issues pertaining to an individual’s medical condition are not specified as considerations under the “public interest” assessment. Instead, under 8 C.F.R. § 212.5(b)(1), an individual’s “serious medical condition” may be considered as a basis for parole on a “case-by-case” basis.
As this Court has previously recognized, by statute the decision whether or not to grant parole under any of the subsections of 8 C.F.R. § 212.5(b) is a discretionary one that is not subject to judicial review under the APA. See Damus v. Nielsen, 313 F. Supp. 3d 317, 327 (D.D.C. 2018) (“[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”). This Court, however, has permitted Plaintiffs’ APA claims here to proceed because Plaintiffs purportedly are not challenging individual parole determinations but instead challenge more narrowly the agency’s alleged failure to comply with the procedures of the Parole Directive based on the alleged practice of categorically denying all parole requests (and thus allegedly not engaging in individualized determinations).
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Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 9 of 36
Plaintiffs’ APA claims6 thus survived Defendants’ motion to dismiss solely on the basis of the “Accardi doctrine,” which, as applied by this Court,7 can form the basis for an APA claim when an agency allegedly fails to following guidelines that it has established to govern the agency’s discretionary decisionmaking. (ECF No. 32, Mem. Op. at 18) Relying on the Accardi doctrine, this Court found the Parole Directive to constitute binding guidance over the agency’s discretionary decisionmaking in parole determinations, and thus permitted Plaintiffs to proceed with their APA claim based on Plaintiffs’ allegations that ICE failed to conduct individualized parole determinations and instead followed a practice of categorically denying parole contrary to the directive. (ECF No. 32, Mem. Op. at 19)
On September 5, 2019, this Court also granted Plaintiffs’ motion for preliminary injunctive relief and ordered ICE to conduct individualized parole determinations in accordance with the provisions of the Parole Directive. Since that order, ICE has been providing monthly reports to the Court reflecting the rate at which parole is now being granted at its facilities within the New Orleans Field Office. In that regard, the report filed on February 24, 2020 reflected a 36 percent grant rate for both re-determinations and initial parole determinations, and the report field on March 23, 2020, reflected a 29% grant rate for re-determinations and a 13.6% grant rate for initial determinations. In contrast, at the time this lawsuit was filed, the grant rate was near

6

Plaintiffs also asserted a claim for violation of due process under the Fifth Amendment

for alleged non-compliance with the procedures of the Parole Directive, but the Court dismissed

that claim without prejudice by order dated September 5, 2019. (ECF No. 33)

7

Defendants continue to reserve their position that the Accardi doctrine is not applicable to

the Parole Directive, and are simply discussing above this Court’s ruling on Defendants’ motion

to dismiss.

9

Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 10 of 36
zero according to Plaintiffs’ allegations, evidence that figured prominently in their Complaint and this Court’s granting of preliminary injunctive relief.
II. This Court Lacks Jurisdiction To Issue Injunctive Relief Based On Allegations That Fall Outside The Narrow Scope Of This Lawsuit.
“As a general rule, ‘a preliminary injunction may not issue when it is not of the same character as that which may be granted finally and when it deals with matter outside the issues in the underlying suit.’” Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 9 (D.D.C. 2014). Thus, a preliminary injunction that “deals with a matter lying wholly outside the issues in the suit” or would provide relief that could not be provided “in any final injunction that may be entered” would not be proper. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945).
This established rule “cuts to the subject matter jurisdiction of the court.” Sai, 54 F. Supp. 3d at 9. “Thus, just as a court lacks jurisdiction over a motion for a preliminary injunction in the absence of a complaint . . ., the court also lacks jurisdiction over a motion when it ‘raises issues different from those presented in the complaint.’” Id.; see also Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002); accord Stewart v. U.S. Immigration and Naturalization Serv., 762 F.2d 193, 198-99 (2d Cir. 1985).
Plaintiff purports to bring this preliminary injunction motion based on ICE’s failure to provide individualized parole determinations in accordance with the procedures set forth in the Parole Directive. But this Court already has entered a preliminary injunction providing that relief and, as discussed below, Plaintiffs have failed to support with competent evidence their contention of non-compliance by ICE with the existing injunction. Indeed, were the Court to
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find non-compliance with its existing order, the proper remedy would not be for the Court to issue a duplicative preliminary injunction.
The preliminary injunction order that is actually being requested is one that would require ICE to conduct re-determinations of parole for all detainees within the New Orleans Field Office who fall within the broadly defined Mons class based on the COVID-19 situation. (ECF No. 61-2) But nothing in the existing Complaint supports that relief. The allegations are limited to narrowly pled APA claims based on the Accardi doctrine that allege (1) a policy and practice of “ignoring the Parole Directive” (Count I) and (2) a failure to provide individualized determinations in accordance with the Parole Directive and to instead categorically deny parole in virtually all cases (Count II). (Compl. ¶¶ 129-137)
In their motion for preliminary injunction, Plaintiffs state that they are re-asserting these two claims “but now make[] these assertions as the basis for injunctive relief requested to enjoin Defendants from acting in a manner specifically harmful to Plaintiffs’ during the COVID-19 pandemic.” (ECF No. 61-1, Pl. Mem. at 23) This assertion is an admission that Plaintiffs are seeking relief outside the scope of the existing Complaint and attempting, by motion, to advance new claims. That Complaint, which was filed in May 2019, pre-dates the COVID-19 situation and does not allege a violation of the 2019 Parole Directive based on any individual’s particular health status, age or conditions of detention. Plaintiffs’ attempt to assert by motion what amount to new claims based on events that had not arisen at the time that Complaint was filed is improper and fails to afford jurisdiction to this Court to consider a requested injunction based on such unpled claims.
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When Plaintiffs’ narrowly pled Complaint is compared to recent lawsuits against ICE filed by other litigants based on the COVID-19 situation, the limited nature of this lawsuit as pled is even more apparent. Those lawsuits assert constitutional challenges to the living conditions at certain ICE facilities based on COVID-19 and seek injunctive relief on the basis of allegations specifically raised in the Complaints filed in those actions. See, e.g., Dawson v. Asher, Case No. 20-409 (W.D. Wash.).8 In one recent example, 17 detainees in five facilities within the New Orleans Field Office (LaSalle, Richwood, Etowah, Adams and Winn) recently filed such a lawsuit in the Eastern District of Louisiana, alleging that they are high-risk to COVID-19 either by age or health conditions (i.e., diabetes, chronic lung condition, kidney disease, and hypertension) and that the conditions at the facilities are unsafe for them for that reason and that they should be released. See Dada, et al. v. Witte, Case No. 20-1093 (E.D. La.).9
What is relevant here for purposes of this Court’s jurisdiction is not the outcome of the motion in Dada (dismissal for lack of jurisdiction) and similar lawsuits, but the different character of such lawsuits as compared to the narrowly pled Complaint here. The Complaint here does not plead facts pertaining to the COVID-19 situation or attempt to base any claim for relief on the living conditions at facilities within the New Orleans Field Office relative to any individual’s particular age or medical condition. Indeed, standing in this lawsuit was derived from a putative class that is defined in a manner entirely unconnected to any class member’s age or medical condition.

8 The motion for temporary restraining order was denied in the above-cited case.

9

At least one of the plaintiffs in Dada appears to fall within the Mons class as that class

has been defined by this Court.

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Yet, Plaintiffs base their motion for preliminary injunction on conditions in the detention facilities, which they contend render them unsafe in light of COVID-19 and thus, in their view, require ICE to conduct automatic, across-the-board re-determinations of parole for all detainees. But the APA claims as pled in the existing Complaint are not based on alleged unsafe living conditions or any detainees’ age or medical condition, nor does the Complaint present the Court with a claim that would require it to assess those conditions. As pled, this lawsuit is limited to the four corners of the Parole Directive and that directive does not in any way purport to limit ICE’s discretion in weighing such issues in parole determinations. Nor does it require that ICE conduct automatic, across-the-board re-determinations of parole in the event of a health crisis. Under the directive, individual detainees can request a re-determination of a prior denial of parole and ICE has discretion in how that is conducted. (2009 Parole Directive ¶ 8.9) Moreover, while the regulations governing parole recognize “serious medical conditions” and “humanitarian reasons” as a potential basis for parole, that is to be assessed in ICE’s discretion on a “case-by-case” basis. 8 C.F.R. § 212.5(b).
This Court already has issued a preliminary injunction that falls within the scope of the allegations as narrowly pled in the Complaint. Plaintiffs’ instant motion would be redundant were it to seek relief that this Court already has granted. Instead, it is properly understood as seeking relief related to the COVID-19 situation based on the conditions at the facilities within the New Orleans Field Office, matters over which this Court lacks jurisdiction in this narrowly framed lawsuit. As such, Plaintiffs’ motion goes beyond the scope of this lawsuit and should be denied on that basis.
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III. Plaintiffs Have Failed To Meet Their Burden To Establish An Entitlement To Preliminary Injunctive Relief.
Even were the Court to find that it has jurisdiction over Plaintiffs’ motion despite the limited nature of this lawsuit, Plaintiffs have failed to meet their burden to obtain preliminary injunctive relief. A “preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). A party seeking preliminary relief must make a “clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016). The moving party bears the burden of persuasion and must demonstrate, “by a clear showing,” that the requested relief is warranted. Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 197 (D. D.C. 2010).
Before the Supreme Court’s decision in Winter, courts weighed these factors on a sliding scale, allowing an unusually strong showing on one of the factors to overcome a weaker showing on another. Davis v. PBGC, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) This Circuit has suggested, without deciding, that Winter—which overturned the Ninth Circuit’s “possibility of irreparable harm” standard— “should be read to abandon the sliding-scale analysis in favor of a ‘more demanding burden’ requiring Plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm.” Bartko v. Dep’t of Justice, 2015 WL 13673371, at *1 (D.D.C. 2015) (citing Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011), and Davis, 571 F.3d at 1292); see also League of Women Voters, 838 F.3d at 7 (declining to address whether “sliding scale” approach is valid after Winter).
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Even before Winter, courts in this Circuit consistently stressed that “a movant must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting CityFed Fin. Corp. v. OTS, 58 F.3d 738, 747 (D.C. Cir. 1995)). Thus, “if a party makes no showing of irreparable injury, the court may deny the motion without considering the other factors.” Henke v. Dep’t of Interior, 842 F. Supp. 2d 54, 59 (D.D.C. 2012) (quoting CityFed Fin. Corp., 58 F.3d at 747); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (“A movant’s failure to show any irreparable harm is … grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.”).
A movant alleging “speculative injuries” cannot meet the “‘high standard for irreparable injury’ sufficient to warrant the extraordinary relief” of a preliminary injunction and “the Court need not reach the other factors relevant to the issue of injunctive relief.” United Farm Workers v. Chao, 593 F. Supp. 2d 166, 171 (D.D.C. 2009) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297); see Bartko, 2015 WL 13673371 at *2 (“[t]he Court need not grant injunctive relief ‘against something merely feared as liable to occur at some indefinite time’”) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). “[T]he movant must demonstrate the injury is of such ‘imminence’ that there is a clear and present need to equitable relief to prevent irreparable harm.” Id. (quoting Judicial Watch, Inc. v. Dep’t of Homeland Security, 514 F. Supp. 2d 7, 10 (D.D.C. 2007). And where a party seeks to change the status quo through action rather than merely to preserve the status quo—typically the moving party must meet an even higher standard than in the ordinary case: the movant must show ‘clearly’ that [it] is entitled
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to relief or that extreme or very serious damage will result.” Farris v. Rice, 453 F. Supp. 2d 76, 78 (D.D.C. 2006) (citing authorities).
As discussed below, Plaintiffs have fallen far short of meeting their burden to establish that they have met any of the four factors by either the “clear showing” standard or the somewhat higher standard applicable when the injunction would alter the status quo. Dunlap v. Presidential Advisory Comm’n on Election Integrity, 319 F. Supp. 3d 70, 81 (D.D.C. 2018); Farris, 453 F. Supp. 2d at 78.
A. Plaintiffs Have Not Demonstrated A Likelihood Of Success On The Merits Plaintiffs have not shown that they have a strong likelihood of success on the merits. Plaintiffs nominally contend that their motion is necessary on the basis that Defendants are in violation of this Court’s existing preliminary injunction order, and they devote most (if not all) of their discussion of the likelihood of success factor to essentially re-litigating their earlier motion. (ECF No. 61-1, Pl. Mem. at 31-42) However, as discussed below, Plaintiffs have failed to proffer to the Court competent evidence sufficient for this Court to find Defendants currently to be in violation of the September 5, 2019 order. Indeed, if alleged non-compliance with the existing order were the true basis for Plaintiffs’ motion, the requested injunction would be redundant of relief already granted by the Court and unnecessary in light of other potential remedies available to Plaintiffs. What is at issue instead is Plaintiffs’ contention that automatic, across-the-board redeterminations of parole are necessary in light of COVID-19. As already discussed above, this Court lacks jurisdiction to consider that claim since it goes beyond the scope of this lawsuit as narrowly framed in the Complaint. But even if the Court had jurisdiction, Plaintiffs
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mischaracterize the Parole Directive in making this argument. They contend that “Defendants should . . . be required to fully comply with all applicable regulations delineated in the Parole Directive, including those that favor the granting of parole to class members who ‘have serious medical conditions, where continued detention would not be appropriate,’ and class members ‘whose continued detention is not in the public interest.’” (ECF No. 61, Pl. Mot. at 2)
However, the referenced regulations do not “favor” granting parole on any specific basis, but simply identify categories in which parole may be justified based on the exercise of ICE’s discretion. Neither the Parole Directive nor the referenced regulation, 8 C.F.R. § 212.5(b), dictates how ICE is to weigh competing factors in evaluating parole on a case-by-case basis. Nor have Plaintiffs identified any provision of the Parole Directive that would entitle them to automatic, across-the-board re-determinations based on these factors. And their limited evidence fails to demonstrate that ICE is not conducting individualized determinations of individuals who have requested re-determinations in light of COVID-19. For all of these reasons, Plaintiffs cannot establish a likelihood of success on the merits of their new, unpled claim.
1. Plaintiffs Have Proffered Insufficient Evidence Of Non-Compliance As a basis for contending that ICE is in violation of this Court’s September 2019 preliminary injunction order, Plaintiffs cite to the current grant rates at facilities within the New Orleans Field Office, which they acknowledge approach 40 percent at some facilities but still characterize as “abysmal”. (ECF No. 61-1, Pl. Mem. at 32) They also cite to what they characterize as testimony by their declarants reflecting “egregious behavior” by Defendants regarding their compliance with the existing order. (Id.) Neither argument has merit.
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In terms of the grant rates, Plaintiffs appear to take the position that the 75 percent grant rate allegedly existing several years ago somehow constitutes the benchmark for what constitutes compliance with the Parole Directive. Not only is that a baseless assertion, but it overlooks the underlying premise of the APA claims in their Complaint and in their original motion for preliminary injunction. Both focused on the near-zero grant rate existing at the time this lawsuit was filed. In that regard, the Complaint asserted claims under the APA on the basis that ICE had a “policy and practice of ignoring the Parole Directive” that is arbitrary and capricious (Count I) and that ICE is failing to make individualized parole determinations and instead is “issuing denials on a categorical basis.” (Count II) (Compl. ¶¶ 129-137)
These are the only claims currently at issue in this case, and the only claims on which a request for injunctive relief can be based. Clearly, a recent grant rate approaching 40 percent at some facilities (and over 30 percent across all facilities as reflected in the recently-filed monthly reports) conclusively establishes that individualized parole determinations are occurring, that the Parole Directive is not being “ignor[ed],” and that denials are not being issued on a “categorical basis.” See, e.g., R.I.LR. v. Johnson, 80 F. Supp. 3d 164, 174 (D.D.C. 2015) (JEB) (“Although these materials certainly do not reflect a large body of favorable release determinations, the Court is reluctant to find an across-the-board No-Release Policy when it appears that — at least in some small number of cases — ICE does grant bond on the basis of individualized considerations.”) While Plaintiffs may prefer a higher grant rate, that preference is not a basis for contending that Defendants are failing to conduct individualized determinations in violation of this Court’s September 2019 order.
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Most of Plaintiffs’ discussion concerns sweeping assertions regarding Defendants alleged non-compliance with this Court’s September 5, 2019 order (ECF No. 61-1, Pl. Mem. at 32-41) that are untethered from the supporting “evidence” that Plaintiffs have proffered. But the assertions made by counsel in a legal brief are not evidence. A close review of the referenced declarations submitted with Plaintiffs’ motion – the only “evidence” presented – reveals the exaggerated nature of these assertions.
Defendants discuss below each of the purported fact declarations submitted with Plaintiffs’ motion to the extent they purport to address ICE’s alleged non-compliance with the 2009 Parole Directive. As that discussion reflects, to the extent these declarations even allege non-compliance with the 2009 Parole Directive (as opposed to dissatisfaction with the outcome of their parole determinations), they are limited to isolated acts that occurred several months ago and, in some instances, prior to this Court’s September 5, 2019 preliminary injunction order. And, to the extent these declarants take issue with the amount of information on their denial letters explaining the basis for the decisions, this Court’s September 5, 2019 order did not require ICE to provide any more detail than provided on its form denial letter (indeed, the Parole Directive requires nothing more than a “brief” explanation (Parole Directive § 6.5)). Thus, although Plaintiffs make sweeping assertions of non-compliance in their preliminary injunction motion, their supporting declarations fail to support those contentions.
A discussion of the eight declarations submitted with Plaintiffs’ motion follows and demonstrates the dated nature of the allegations of alleged non-compliance in these declarations. The dated nature of the allegations is significant in two ways. First, it demonstrates that there is no alleged imminent need for Plaintiffs’ motion to the extent it is based on alleged non-
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compliance. See, e.g., Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989) (delay of four months indicates a lack of imminence sufficient to support preliminary injunctive relief). Second, Plaintiffs’ near complete reliance on dated, isolated examples reflects the absence of any present issue regarding compliance. Indeed, since the Court’s preliminary injunction order, hundreds of parole determinations have been made. Against that backdrop, Plaintiffs identification of only a few isolated instances of alleged non-compliance from months ago falls far short of Plaintiffs’ burden to establish a present violation of this Court’s September 5, 2019 order. A close review of Plaintiffs’ declarations reveals the following:
B.A.E.: B.A.E. identifies one act of alleged non-compliance that allegedly occurred in November 2019 when parole was denied before B.A.E. submitted an application, and one isolated comment in November 2009 that is contradicted by recent grant rate statistics. (ECF No. 61-3 at ¶¶ 8-9) B.A.E.’s dissatisfaction with the outcome of the parole determinations and the absence of a more detailed explanation for the denials (which is not required by this Court’s preliminary injunctive order or the Parole Directive) is not evidence of non-compliance. According to ICE’s records, B.A.E.’s most recent parole denial was March 29, 2020. (Ex. B to Hartnett Decl.) K.S.R.: K.S.R. identifies one act of alleged non-compliance at the S. Louisiana facility when, in December 2019, K.S.R. was denied parole as a flight risk without being interviewed. (ECF No. 61-4 at ¶ 7) According to K.S.R.’s declaration, K.S.R. requested re-determinations of that denial on three occasions and was denied each time. (Id. ¶ 8) K.S.R. does not identify any issues of non-compliance associated with any of those denials. (Id.) According to ICE’s records, K.S.R.’s most recent parole denial was
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March 12, 2020. (Ex. B to Hartnett Decl.) L.P.C.: L.P.C. identifies one instance in November 2019 at the S. Louisiana facility where an officer allegedly refused to accept the parole application and stated that parole is not granted in Louisiana (a contention contradicted by recent parole grant statistics). (ECF No. 61-5 at ¶¶10-12) L.P.C. asserts that “over the last four months” other parole requests were made and were denied, with the flight risk box checked on the denial letter and no further explanation. (Id.) L.P.C. does not identify any issues of non-compliance regarding these requests and neither this Court’s preliminary injunction order nor the Parole Directive require any explanation beyond what was included in these denial letters. According to ICE’s records, L.P.C.’s last parole denial was January 30, 2020. (Ex. B to Hartnett Decl.) O.M.H.: O.M.H. identifies an issue with a parole denial occurring in or about July 2019, prior to the Court’s September 5, 2019 preliminary injunction order. (ECF No. 616 at ¶ 5) O.M.H. also makes a generic assertion that ICE officers at Richwood would not accept parole requests, but the timeframe when this allegedly occurred appears to have been some time prior to December 2019. (Id. at ¶ 9) O.M.H. filed a parole request on March 26, 2020, but does not assert any issues of non-compliance with respect to that request. (Id. at ¶ 10) According to ICE’s records, that request was denied on March 30, 2020, but O.M.H. was subsequently released on his own recognizance on April 2, 2020. (Hartnett Decl. ¶ 26 and Ex. B thereto)
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R.P.H.: R.P.H. allegedly applied for parole four times and all of her requests have been denied. R.P.H. identifies no issues of non-compliance with respect to any of those requests, but simply expresses the belief that the requests should have been granted. (ECF No. 61-7 at ¶ 14) According to ICE’s records, R.P.H.’s last request was denied March 12, 2020. (Ex. B to Hartnett Decl.) S.U.R.: S.U.R. was transferred to the River Correctional Facility in April 2019 and apparently requested parole shortly thereafter. (ECF No. 61-8 at ¶¶ 8-9) Although S.U.R. alleges that there was no interview in connection with that application or any decision on that request, that application apparently occurred prior to this Court’s September 5, 2019 order based on the chronology provided in S.U.R.’s declaration. (Id.) In November 2019, S.U.R. was transferred to the Adams facility where a parole request was made and denied. (Id. ¶ 10) S.U.R. does not identify any issues of non-compliance with that request. (Id.) According to ICE’s records, S.U.R. was granted parole on April 3, 2020. (Hartnett Decl. ¶ 26 and Ex. B thereto) T.M.F.: T.M.F. alleges that, while in the Tallahatchie facility for approximately one week in late November/early December 2019, officers told him parole was not granted in Louisiana and that his parole request was denied. (ECF No. 61-9 at ¶¶ 8-9) On December 10, 2019, T.M.F. was transferred to River Correctional Facility and in early January 2020 was transferred to LaSalle, where T.M.F. allegedly had difficulty contacting a deportation officer. (Id. ¶ 11) According to ICE’s records, T.M.F. was last denied parole on January 31, 2020. (Ex. B to Hartnett Decl.) T.M.F. claims to have been denied parole several times, but does not identify any issue of non-compliance with
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respect to any of those denials. (ECF No. 61-9 at ¶¶ 9-10) T.M.F. expresses dissatisfaction with the outcome of his parole requests and the absence of a detailed explanation for the denials. (Id.) According to ICE’s records, an Immigration Judge issued a ruling in T.M.F.’s favor on March 10, 2020, and ICE has reserved appeal. (Ex. B to Hartnett Decl.) Y.P.T.: Y.P.T. identifies one issue of alleged non-compliance that occurred either before, or around the time of, this Court’s September 5, 2019 order based on the chronology presented in Y.P.T.’s declaration. (ECF No. 61-10 at ¶¶ 8-9) Specifically, Y.P.T. alleges that parole was denied while at the Tallahatchie facility in late August or early September 2019 without Y.P.T. having the opportunity to submit documents in support of parole. (Id.) Y.P.T. alleges that there have been three other parole requests which have been denied. (Id. ¶ 10) Y.P.T. does not identify any issues of noncompliance with the Parole Directive in connection with any of those requests. (Id.) Instead, like T.M.F., Y.P.T. expresses dissatisfaction with the outcome of the determinations and the lack of a more detailed explanation for the denials. (Id.) According to ICE’s records, an Immigration Judge ordered Y.P.T. removed on January 10, 2020, and Y.P.T.’s appeal to the BIA remains pending. (Ex. B to Hartnett Decl.) Y.P.T.’s last parole denial was February 28, 2020. (Id.) Rivera Declaration: Plaintiffs’ motion also is accompanied by a declaration of Laura Rivera, one of the attorneys representing Plaintiffs in this action. (ECF No. 61-11) That declaration is focused mainly on the COVID-19 situation, recent guidelines at the facilities within the New Orleans Field Office placing restrictions on visitation, and
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hearsay regarding the conditions at two facilities (LaSalle and Pine Prairie). To the extent parole is referenced in that declaration, Ms. Rivera discusses two clients who were denied parole before the COVID-19 situation, and also denied parole again after the onset of COVID-19. (ECF No. 61-11 at ¶¶ 11-12) Although Ms. Rivera disagrees with those determinations, Ms. Rivera does not identify any issues of alleged non-compliance with the Parole Directive with respect to those determinations. (Id.) Thus, these declarations fail to establish any current, ongoing violation of this Court’s September 5, 2019 order. Instead, they at most reflect dated, isolated instances of alleged non-compliance that arose several months ago. Accordingly, Plaintiffs have failed to meet their burden of establishing the likelihood of success factor to the extent it is premised on alleged noncompliance with this Court’s existing order.
2. Plaintiffs Have Failed To Establish A Lack Of Individual Determinations For Individuals At High Risk Of COVID-19
Plaintiffs other apparent basis for filing this motion for preliminary injunction is their speculation that ICE is failing to consider in its parole determinations whether individuals requesting parole are at high risk for complications from COVID-19. Plaintiffs state that they are re-asserting the two counts of their Complaint “as the basis for injunctive relief requested to enjoin Defendants from acting in a manner specifically harmful to Plaintiffs’ during the COVID19 pandemic.” (ECF No. 61-1, Pl. Mem. at 23) Indeed, one of the two “expert” declarations submitted with Plaintiffs’ filing frames the question this way: “The present case involves a question as to whether the New Orleans Immigration and Customs Enforcement (“ICE”) Field Office should use its authority and discretion to release detained asylum-seekers in order to protect them from health risks caused by potential and actual exposure to the novel Coronavirus
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(COVID-19).” (ECF No. 61-13 at ¶ 10)
Plaintiffs insist that they “are not seeking to challenge the outcome of the individualized
parole assessments itself.” (ECF No. 61-1, Pl. Mem. at 16) Instead, Plaintiffs are asking this
Court to require ICE to emphasize certain factors over others in conducting individual parole
assessments. In their motion, they explain the basis for this contention as follows:
Defendants should also be required to fully comply with all applicable regulations delineated in the Parole Directive, including those that favor the granting of parole to class members who “have serious medical conditions, where continued detention would not be appropriate,” and class members “whose continued detention is not in the public interest.” Parole Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b). As required by the Parole Directive, Defendants should incorporate into their individualized assessment of class members’ parole eligibility, the danger that COVID-19 poses to those in detention, especially those with serious medical conditions; and should weigh whether the continued detention of parole-eligible class members is in the public interest, given the danger posed by the COVID-19 outbreak.
(ECF No. 61, Pl. Mot. at 2)
Defendants already have established that this contention reflects a new claim that has not
been pled in the Complaint and that therefore is outside the scope of this lawsuit. But even were
the Court to consider it, Plaintiffs have failed to establish a likelihood of success of prevailing on
the merits of this contention for two reasons. First, nothing in the Parole Directive or referenced
regulation “favor[s] the granting of parole to class members who ‘have a serious medical
condition’” or states that continued detention is not in the public interest when a detainee has a
serious medical condition. Although the Parole Directive explains the meaning of “public
interest” in 8 C.F.R. § 212.5(b)(5) (Parole Directive § 4.4), the factors that the Parole Directive
identifies in making that determination are set forth in section 8.3 of the Parole Directive and do
not directly reference medical issues. And, while the regulation addressing parole, 8 C.F.R. §
212.5(b), refers to a “serious medical condition” as a potential basis for parole, id. § 212.5(b)(1), 25

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that subsection is distinct from the “public interest” subsection, id. § 212.5(b)(2), that is specifically addressed in the Parole Directive. (Parole Directive § 4.4)
Ultimately, whether to grant parole based on the existence of a “serious medical condition” or “public interest” – in the context of COVID-19 or otherwise – is subject to ICE’s discretion based on a weighing of various factors that might be at issue in any given “case-bycase” analysis. Thus, neither the Parole Directive, nor 8 C.F.R. § 212.5(b), requires ICE to “favor” a requester’s age or medical condition over any other factor that ICE might consider in evaluating a parole request. Accordingly, Plaintiffs cannot state a claim based on the Accardi doctrine – which is the basis for their APA claims as pled in the Complaint – for ICE’s alleged failure to “favor” such factors in its individualized determinations. Nor does this Court have jurisdiction to direct ICE to do so. See Damus, 313 F. Supp. 3d at 327 (observing that “[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”); see also 8 U.S.C. § 1182(d)(5)(A) (“The [DHS Secretary] may … in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States…”); 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,” except for asylum determinations).
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Second, Plaintiffs have failed to proffer any evidence that ICE has failed to consider an individual’s medical condition in its case-by-case analysis of parole requests in any event. The only “evidence” that Plaintiffs offer to contend that persons who suffer from medically serious conditions are not afforded individualized assessments are the outcomes of a limited number of parole determinations that Plaintiffs have identified since the onset of COVID-19 in Louisiana.10 In light of the discretionary nature of a parole determination, and the other factors that are weighed in such determinations, that exceedingly small sample size is not evidence that individualized determinations are not occurring.
Not only is the sample size too small to draw any such conclusion, but Plaintiffs proffered declarations reflect that most, if not all, of the declarants who were denied parole within the last 30 days are not within the high-risk categories identified by the CDC, which are consistent with the categories identified in the declaration accompanying Plaintiffs’ motion (ECF No. 61-12 at 7-8).11 Of the eight individuals who have proffered declarations, only four (B.A.E., K.S.R., O.M.H. and R.P.H.) were denied parole within the last 30 days and none are 65 years of age or older (the ages are: B.A.E. (no age stated); R.P.H. (50); K.S.R. (27) and O.M.H. (32))
10 The first presumptive case of COVID-19 in Louisiana was announced on March 9, 2020. See https://www.wwltv.com/article/news/health/coronavirus/coronavirus-timeline/2899204d79c-2ac6-4b27-971b-3f32be49d134. 11 Those categories include individuals 65 years and over, individuals with chronic lung disease or severe asthma, individuals with serious heart conditions, conditions that can cause a person to be immunocompromised, severe obesity, diabetes, chronic kidney disease and those undergoing dialysis, and liver disease. See https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-at-higher-risk.html.
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In addition, of the four denied parole within the last 30 days, only two identify a specific
underlying medical condition – R.P.H. (breast cancer survivor) and O.M.H. (HIV positive and Hepatitis C) – and, of those, only O.M.H. arguably falls within a recognized high risk category.12
Notably, O.M.H. was released on his own recognizance on April 2, 2020. (Hartnett Decl. ¶ 26
and Ex. B thereto) Of the remaining two, one (K.S.R.) claims to have had the flu in early March
and the other (B.A.E.) references a muscle injury in his chest, neither of which constitutes a
high-risk category.
As regards the other four of the eight declarants, only one – S.U.R. – potentially falls
within a high-risk category as a 60 year old with hypertension and a heart murmur. (Id.) The other three do not.13 S.U.R. was granted parole on April 3, 2020. (Hartnett Decl. ¶ 26 and Ex.
B thereto)
12 R.P.H.’s assertion that she is a breast cancer survivor does not place her within a highrisk category absent evidence that R.P.H. is undergoing treatment that makes her immunecompromised, which is not asserted in her declaration. O.M.H.’s contention of suffering from Hepatitis C may place O.M.H. in a high-risk category of having liver disease. Being HIV positive, however, is not listed by the C.D.C. as a high-risk category provided the condition is being controlled. See https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html. 13 The remaining three declarants age and medical conditions are as follows according to their declarations: L.P.C (26 years old, no current medical condition identified) (ECF No. 615); T.M.F. (44 years old, no current medical condition identified other than pain from unidentified chronic injuries) (ECF No. 61-9); Y.P.T. (30 years old, fractured foot, claustrophobia, nausea, anxiety and depression) (ECF No. 61-10). To the extent these and the other declarants make representations about the medical conditions of other detainees, those statements are hearsay and should not be considered by the Court. These declarants do not purport to be medical professionals or to have access to other detainees’ medical records. Their statements, therefore, are either based on speculation or information provided to them by others. Under either scenario, the statements are inadmissible.
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Thus, of the eight declarants supporting Plaintiffs’ motion, the two with potentially highrisk medical conditions (O.M.H. and S.U.R.) have been released.14 The remaining six do not
claim to have medical conditions that would place them in a high-risk category, nor are they of
an age that would place them in a high-risk category. To the extent they make representations
about the medical conditions of other detainees, those assertions are inadmissible hearsay. See
supra note 13. Thus, when their conclusory assertions are set aside and their declarations are
closely examined, Plaintiffs have offered no competent evidence that individuals with serious
medical conditions are not receiving individualized determinations under the Parole Directive.
3. Plaintiffs Have Not Pled Any Claim Challenging Their Conditions Of Confinement Under The APA And Thus Their Assertions Regarding Such Conditions Fall Outside The Scope Of This Lawsuit
Although Plaintiffs have not asserted a claim in their narrowly pled Complaint challenging the conditions of their confinement under the APA,15 a large portion of their motion
for preliminary injunction and supporting evidence focuses on those conditions in the context of
the COVID-19 situation. Those allegations fall outside the scope of this narrowly framed
14 As regards O.M.H.’s recent denial of parole prior to his subsequent release, it bears mentioning that O.M.H. had received an adverse ruling by an Immigration Judge (Ex. B to Hartnett Decl.), thus increasing his potential as a flight risk as this Court previously recognized. (Mem. Op. at 13, “[a]s the Government argues, an alien facing an order of removal from an IJ presents a fundamentally different flight risk from one who is merely awaiting a hearing before an IJ”). 15 Although Plaintiffs have not brought a claim under the APA challenging the conditions of their confinement, Defendants nonetheless observe that Plaintiffs have not identified a specific final agency action, much less demonstrated exhaustion of remedies as would be necessary to assert such a claim. Vetcher v. Sessions, 316 F. Supp. 3d 70, 78-79 (D.D.C. 2018) (dismissing a challenge to the conditions of confinement under the APA because plaintiff failed to identify the policies plaintiff was challenging and how he had administratively exhausted any grievance about those policies).
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lawsuit and should not be considered by the Court. Defendants nevertheless note the following. First, Plaintiffs’ declarants most recent
place of confinement is at four of the 23 facilities within the New Orleans Field Office, specifically, Adams, S. Louisiana, Catahoula and LaSalle. (Ex. A-B to Hartnett Decl.) Although Plaintiffs assert that there is overcrowding at the referenced facilities, none in fact are operating over capacity and many are operating under capacity. (Hartnett Decl. ¶¶ 4-23 and Ex. A thereto) Moreover, contrary to Plaintiffs’ contentions, ICE provides a sanitary environment, including by providing detainees with soap for the shower and hand soap for sink handwashing. (Hartnett Decl. ¶ 41) As described in the accompanying declaration, ICE also provides soap and paper towels that are present in bathrooms and work areas within the facilities. Everyday cleaning supplies such as soap dispensers and paper towels are routinely checked and are available for use. Detainees are encouraged to communicate with local staff when additional hygiene supplies or products are needed. (Id.)
Additionally, comprehensive protocols are in place for the protection of staff and detainees, including the appropriate use of personal protective equipment (PPE), in accordance with CDC guidance. ICE also instituted screening guidance for new detainees who arrive at facilities to identify those who meet CDC’s criteria for epidemiologic risk of exposure to COVID-19.16 ICE Health Services Corps (“IHSC”) isolates detainees with fever and/or
16 As of the time of the preparation of the accompanying declaration, there have been two confirmed cases of COVID-19 among the detainee population or staff in the facilities within the New Orleans Field Office. (Hartnett Decl. ¶ 27) On April 1, 2020, a detainee at the Pine Prairie ICE Processing Center (PPIPC), Pine Prairie, Louisiana tested positive for COVID-19. That detainee remains in isolation in a negative pressure cell within the PPIPC medical clinic. On April 5, 2020, a detainee at LaSalle Correctional Cener tested positive for COVID-19. The detainee remains under medical observation and in an isolation cell. (Id.)
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respiratory symptoms who meet these criteria and observe them for a specified time period. IHSC staff consult with the local health department, as appropriate, to assess the need for testing. Detainees without fever or respiratory symptoms who meet epidemiologic risk criteria are monitored for 14 days. (Hartnett Decl. ¶ 38)
As explained in the accompanying declaration, detainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 are housed separately from the general population. ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as COVID-19. (Hartnett Decl. ¶ 39) ICE also transports individuals with moderate to severe symptoms, or those who require higher levels of care or monitoring, to appropriate hospitals with expertise in high-risk care. Detainees who do not have fever or symptoms, but meet CDC criteria for epidemiologic risk, are housed separately in a single cell, or as a group, depending on available space. (Id.)
As explained in the accompanying declaration, ICE has reviewed its “at risk population” to include the elderly, pregnant detainees, and others with compromised immune systems to ensure that detention is appropriate given the circumstances. Custody determinations are made on a case-by-case basis at each detention facility and include, among other factors, the public safety risk that such release could create and the requirement to detain certain aliens under law. ICE will continue to review its “at risk population” in the days and weeks ahead when deciding whether any detainees should be released from custody. (Hartnett Decl. ¶ 42)
Thus, even if the conditions at the facilities were relevant to this lawsuit as narrowly pled in the Complaint, which Defendants dispute, Plaintiffs’ limited contentions are insufficient to
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establish that conditions at the specific facilities they discuss in their declarations, or at other facilities within the New Orleans Field Office, are unsafe in the current environment.
B. Plaintiffs Have Not Shown Irreparable Injury “Regardless of how the other three factors are analyzed, it is required that the movant demonstrate an irreparable injury.” Mdewakanton Sioux Indians of Minnesota, 255 F. Supp. 3d 48, 51 (D.D.C. 2017) (footnote omitted). “The basis of injunctive relief in the federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974); see also CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). The Supreme Court’s “frequently reiterated standard requires Petitioners seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original). Moreover, conclusory or speculative allegations are not enough to establish a likelihood of irreparable harm. Henke, 842 F. Supp. 2d at 59; see Bartko, 2015 WL 13673371 at *2 (“[t]he Court need not grant injunctive relief ‘against something merely feared as liable to occur at some indefinite time’”). “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22; Northeastern Fla. Chapter of Ass’n of Gen. Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (irreparable injury must be neither remote nor speculative, but actual and imminent). Petitioners cannot make this showing. Here, the Parole Directive permits detainees to request re-determinations of a parole denial and does not set any limit on how many such re-determinations can be requested. (2009 Parole Directive ¶ 8.9) Accordingly, to the extent any detainee has a concern about COVID-19
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as it pertains to their specific medical situation, the detainee can seek a re-determination without the need of an order from this Court. As this Court can neither dictate the outcome of that determination nor the factors that ICE must consider in any such re-determination, the relief requested in this motion – that ICE conduct re-determinations of all detainees – would afford detainees a procedure that already is available to them. Accordingly, Plaintiffs have failed to establish that any detainee would suffer irreparable harm if the injunction request is denied.
In asserting the existence of irreparable harm, Plaintiffs resort to speculation and arguments that fail to account for the limited relief that they seek. They contend that, “[w]ithout injunctive relief, present and future class members are likely to become infected with COVID-19.” (ECF No. 61-1, Pl. Mem. at 43) Not only is that assertion speculative, but it is misplaced in the context of the specific injunctive relief requested in this motion and the narrow framework of this lawsuit. Equally misplaced are Plaintiffs’ arguments that existing protocols at ICE facilities are insufficient to address the COVID-19 situation. All such contentions go far beyond the four corners of the 2009 Parole Directive, which is the sole basis for this lawsuit, as well as the specific relief requested in the instant motion, which is that the Court order ICE to conduct automatic re-determinations of parole denials for all detainees within the Mons class. Indeed, although Plaintiffs profess that they “are not seeking to challenge the outcome of the individualized parole assessments” themselves, and acknowledge that the Court would lack jurisdiction over such a challenge (ECF No. 61-1, Pl. Mem. at 16), their arguments for irreparable harm are premised on the proposition that all detainees must be released, the very claim they disavow. Accordingly, Plaintiffs’ assertion that they are “likely to become infected
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with COVID-19” if re-determinations are not ordered fails to account for the specific injunctive relief that they seek or the narrow scope of this lawsuit, and should be rejected.
An injunction is “unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged [] -- a ‘likelihood of substantial and immediate irreparable injury.’” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Accordingly, Plaintiffs have not met their burden to show that they will suffer irreparable harm in the absence of the preliminary relief they seek.
C. The Balance Of Interests And Public Interest Factors Favor Defendants The final two factors required for preliminary injunctive relief – harm to the opposing party and the public interest– merge when the Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). Additionally, courts should “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. RomeroBarcelo, 456 U.S. 305, 312-13 (1982). The balance of hardships and public interest weigh in favor of Defendants. Interference with the manner in which ICE exercises its discretionary authority, 8 U.S.C. § 1182(d)(5)(A), and carries out its statutory mandates, 8 U.S.C. § 1225(b), on a preliminary basis significantly harms the Government and cannot truly be said to be in the public interest. It is well-settled that the public’s interest in enforcement of U.S. immigration laws is paramount, and even more so where, as here, Congress has exercised its plenary legislative authority and control over the Nation’s border. United States v. Brignoni-Ponce, 422 U.S. 873, 878-79 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in
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enforcement of the immigration laws is significant.”); see also Nken, 556 U.S. at 435 (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal marks omitted)).
Plaintiffs ask for an order directing ICE to conduct re-determinations of all detainees within the facilities of the New Orleans Field Office, without regard to their age, medical condition or desire for such a re-determination. Given the vast expanse and indiscriminate nature of Plaintiffs’ requested order, the balance of interests clearly favors Defendants. Plaintiffs’ requested order is not narrowly tailored as required when seeking injunction relief, State of Neb. Dep't of Health & Human Servs. v. U.S. Dep't of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006), and would require ICE to direct resources away from other aspects of its mission at a particularly challenging time. Because Plaintiffs cannot show that the balance of hardships and public interest tips in their favor, the Court should deny Plaintiffs’ request for a preliminary injunction.
CONCLUSION For the foregoing reasons, the motion for preliminary injunction should be denied.
Respectfully submitted, TIMOTHY J. SHEA, D.C. Bar #437437 United States Attorney DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief By: ____/s/_____________________ JEREMY S. SIMON, D.C. BAR #447956
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Case 1:19-cv-01593-JEB Document 64 Filed 04/07/20 Page 36 of 36 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov Counsel for Defendants
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 Case 1:19-cv-01593-JEB Document 65 Filed 04/08/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons, et al.,

)

)

Plaintiffs,

)

v.

)

Civ. No.: 1:19-cv-01593

)

Chad Wolf, et al.,

)

)

Defendants/Respondents.

)

__________________________________________)

FACTUAL REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION

In accordance with this Court’s minute order issued on April 2, 2020, Defendants filed their response (Dkt. No. 64) to Plaintiffs’ emergency motion for preliminary injunction, precipitated by the imminent harm the COVID-19 pandemic presents to Plaintiffs and Class Members (hereinafter jointly referred to as “Plaintiffs”). Plaintiffs hereby submit this reply to provide the most current and updated factual information1 as requested by the Court.
I. OVERVIEW OF THE CURRENT COVID-19 SITUATION As of April 7, 2020, there are over 1.3 million confirmed cases of COVID-19 and 74,304 deaths reported worldwide.2 In the United States (U.S.) alone, there are 363,321 confirmed cases and 10,845 deaths reported.3 Moreover, reports show that official counts underestimate the U.S. coronavirus death toll.4

1 Plaintiffs agreed to waive any legal arguments under this Reply in the interest of expediting this matter for the Court’s attention. 2 World Health Organization, Coronavirus Disease 2019 (COVID-19) Outbreak Situation, April 7, 2020, available at https://www.who.int/emergencies/diseases/novel-coronavirus2019. 3 Id., (last updated on April 8, 2020), available at https://who.sprinklr.com/. 4 “Official Counts Underestimate the U.S. Coronavirus Death Toll,” New York Times, April 5, 2020 available at https://www.nytimes.com/2020/04/05/us/coronavirus-deathsundercount.html.

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Last week, the U.S. set a grim record, surpassing all other nations in the reported number of people infected with the coronavirus. A review of twelve mathematical models conducted by federal scientists concluded the U.S. is likely to see millions of people infected.5 The death toll is now likely to exceed 100,000, and some experts fear even those numbers are too optimistic, given that outbreaks are now poised to explode in places that are particularly illprepared for the surge of people needing hospitalization—such as Louisiana.6
A. THE HEALTHCARE INFRASTRUCTURE WHERE PLAINTIFFS ARE DETAINED WILL BE OVERWHELMED BY COVID-19 OUTBREAKS
The healthcare infrastructure of states like Louisiana and Mississippi, where most Plaintiffs are detained, are projected to be overwhelmed and ill-equipped in the face of COVID-19 outbreaks. As reported by local experts:
“[T]he growth rate of COVID-19 cases in Louisiana is expected to outpace hospital bed capacity and Intensive Care Unit (ICU) capacity across the state in both urban and rural parishes.” Because of [the] high prevalence of comorbid conditions in the population of Louisiana (as well as other states in the Southern Mississippi Delta), vulnerability to severe disease from SARS CoV2, requiring hospitalization and ICU level of care, as well as mechanical ventilation, is likely to be greater than in other regions or states … further taxing the limited medical infrastructure.”7 See Declaration of Dr. Lydia Bazzano, CASE No. INFO, ¶¶ 7-8 (Ex. 1). According to a study by the Harvard Global Health Institute, the state of Louisiana does not have sufficient hospital beds to handle even modest projections of COVID-19 outbreaks in the state. Specifically, the state will need about two times the number of regular
5 “The United States Leads in Coronavirus Cases, but Not Pandemic Response,” Science Magazine, April 1, 2020, available at https://www.sciencemag.org/news/2020/04/unitedstates-leads-coronavirus-cases-not-pandemic-response. 6 Id. 7 Dr. Lydia Bazzano’s Expert Decl. ¶ 7-8 (having been filed in support of Dada v. Witte, 2020 WL 1674129, Apr. 6, 2020).

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hospital beds it currently has, and about four times the number of ICU beds. (Emphasis
added).8
The situation is even bleaker in the rural areas where Plaintiffs are currently detained.
Rural medical infrastructure and capacity has been declining over time.9 For example, in
Mississippi, the number of people employed by the Health Department dropped from 2,358
in 2012 to 1,812 in 2019.10 In recent years, the department also shut down most of its regional
offices and a number of its local health clinics across the state.11 In addition, five rural
Mississippi hospitals have closed since 2013.12 According to Dr. Lydia Bazzano, “[m]ost rural
hospitals have very limited ICU capacity and few ventilators as compared to urban hospitals,”
and “[s]evere COVID-19 cases that exceed rural medical capacity will require transfer to
urban hospitals … resulting in delays in transfer of care until beds become available, if at
all.”13
The New York Times also reported on the lack of available hospitals to treat people in
ICE custody in light of the COVID-19 pandemic.14 The article emphasizes that “[t]he shortage
8 Carter Simoneaux,“Flattening the Curve: Taking a Look at Louisiana’s Hospital Capacity,” KADN News 15, 2020, available at https://kadn.com/flattening-the-curvetaking-a-look-at-louisianas-hospital-capacity/; See also HGHI, Harvard Global Health Institute Report, March 17, 2020 available at https://globalepidemics.org/our-data/hospitalcapacity/#dictionary. 9 New York Times, “A Sense of Alarm as Rural Hospitals Keep Closing,” October 29, 2018, available at https://www.nytimes.com/2018/10/29/upshot/a-sense-of-alarm-as-ruralhospitals-keep-closing.html. 10 “COVID-19 Exposes Holes in Mississippi’s Health Care System,” Mississippi Center for Investigative Reporting, March 18, 2020, available at https://www.mississippicir.org/news/covid-19-exposes-holes-in-mississippis-health-caresystem. 11 Expert Decl. of Dr. Lydia Bazzano at ¶ 11 (previously filed in support of Dada v. Witte), available at https://ccrjustice.org/sites/default/files/attach/2020/04/221%20Dr%20Lydia%20Bazzano.pdf. 12 Id. 13 Id. 14 New York Times, “As Pandemic Rages, U.S. Immigrants Detained in Areas with Few Hospitals,” April 3, 2020, available at

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of available care is especially acute in Louisiana, where … the administration of President Donald Trump has quadrupled the number of detainees in the state - to nearly 7,000,” and where “hospitals are already straining to handle one of the world’s fastest-growing coronavirus outbreaks.”15 The article painstakingly points out that the “closest hospital to four of the Louisiana sites - which together house an average of 3,700 detainees - is Winn Parish Medical Center, which has just 46 beds and five intensive-care beds.”16 Additional examples are highlighted, “LaSalle ICE Processing Center in Jena, Louisiana - among the nation’s largest with a daily average of about 1,200 detainees” has the “nearest larger hospital[] . . . about 40 miles away in Alexandria.”17
Further, South Louisiana and Pine Prairie are approximately 40 minutes apart, and “together the centers house an average of 1,300 detainees,” where “[a]bout halfway between the two detention facilities is the Savoy Medical Center - with just 10 intensive-care beds and 6 ventilators,” according to its chief executive Gene Burge.18 Mr. Burge confirmed that an outbreak "would be overwhelming for an area like this.”19 Scott Allen, a doctor and Department of Homeland Security consultant who has inspected detention centers has shared that he co-wrote a letter to U.S. Congress warning that “[l]ocal hospitals would be unable to provide ventilators to both detainees and local residents, causing people from both groups to die unnecessarily.”20
https://www.nytimes.com/reuters/2020/04/03/us/03reuters-health-coronavirus-usadetention-insight.html. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id.

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B. UPDATED INFORMATION IN REGION WHERE PLAINTIFFS ARE DETAINED
1. COVID-19 Introduction to the Facilities Is Occurring and Will Spread Rapidly There are 16,284 confirmed COVID-19 cases in the state of Louisiana , with 63 out
64 parishes reporting confirmed COVID-19 cases..21 Oakdale—which is in close proximity to Pine Prairie ICE Processing Center (“Pine Prairie”) and LaSalle Correctional Center (“LaSalle Olla”)—sits in the midst of an outbreak, reporting at least five deaths as a result of COVID-19 infections. As of April 8, 2020, ICE reports that there are two confirmed COVID19 cases inside Louisiana detention centers; one at Pine Prairie and one at LaSalle Olla.22 ICE also confirmed that five staff members have tested positive tested positive for the virus, at the Alexandria Staging Facility in Louisiana.23 As predicted in Plaintiffs’ emergency preliminary injunction memorandum, one of the confirmed cases arose due to a transfer from the highlyinfected federal Oakdale prison facility. According to ICE spokesman Cox, the infected 52year-old Mexican national detained at Pine Prairie “had recently come into ICE custody from a federal prison near Oakdale, Louisiana.”24
The situation at the federal prison in Oakdale, Louisiana, provides a macabre preview of what is imminently in store for the various facilities under Defendants’ jurisdiction. Oakdale has reported five deaths, and thirty-eight confirmed cases during their outbreak.25
21 Coronavirus (COVID-19), Louisiana Department of Health, (updated April 7, 2020), available at http://ldh.la.gov/Coronavirus/ 22 Coronavirus, Latest Statement, ICE, (last updated April 7, 2020), available at https://www.ice.gov/coronavirus. 23 Id. 24 “A Second ICE Detainee in Louisiana Has Tested Positive for Covid-19,” Mother Jones, April 6, 2020, available at https://www.motherjones.com/coronavirus-updates/2020/04/newpositive-coronavirus-case-ice-detention-louisiana-lasalle-parish/. 25 Nicholas Chrastil, Following five inmate deaths, coronavirus has spread to a new facility at Louisiana federal prison, The Lens, Apr. 7, 2020, available at https://thelensnola.org/2020/04/07/following-five-inmate-deaths-coronavirus-has-spread-toa-new-facility-at-louisiana-federal-prison/.

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Moreover, the Bureau of Prisons “indicated that it had stopped testing at the facility due to ‘sustained transmission,’ and would not be reporting suspected cases, making it difficult to know how many prisoners have actually contracted the virus.”26 In addition, “the agency reported that four staff members at FCI Oakdale have the virus.”27 The men who died were said to have no prior chronic medical conditions, and one was only forty-three years of age.28
As a result of this outbreak, the prison is now short-staffed. A correctional officer at Oakdale, described the situation to media, stating “A lot of our staff members are being forced to work 32-plus hours, and Saturday I heard one was at 60 straight. How is that safe for anyone, especially them being on the road trying to get home?”29 Similarly, plaintiffs and other detained people in the region describe a noticeable drop in the staffing at the facilities, due to detention officials’ fear of coronavirus infection. See Infra Note, Section B(3).
2. Detained People Continue to Be Transferred Across Facilities and Between Dorms Detention center staff, ICE officers, contractors, vendors, and legal visitors enter and
exit Louisiana detention facilities on a daily basis. Anecdotal information indicates that neither staff nor legal visitors use personal protective equipment (“PPE”). Declarants report seeing ICE personnel and detention staff maintaining close contact with detainees without wearing face masks or gloves. Y.P.T. Decl. at ¶20 (stating that “[t]he officers do not wear any sort of masks or gloves.”); see also K.S.R. Decl. at ¶3 (explaining “[t]he guards and staff
26 Id. 27 Id. 28 Nicholas Chrastil, Four Confirmed Coronavirus Deaths at Louisiana Federal Prison, The Lens, Apr. 2, 2020, available at https://thelensnola.org/2020/04/02/four-confirmedcoronavirus-deaths-at-louisiana-federal-prison/. 29 Keegan Hamilton, Third Inmate Dies From COVID-19 at Louisiana Prison as Entire Federal System Goes on Lockdown, Vice News, Apr. 1, 2020, available at https://www.vice.com/en_us/article/5dmend/second-inmate-dies-from-covid-19-atlouisiana-prison-as-entire-federal-system-goes-on-lockdown.

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continue in their failure to take precautions to avoid infecting us with coronavirus. They do not wear personal protective equipment or masks.); see also R.P.H (stating “[t] he officers that do remain are not wearing any protective gear or masks and they have become more aggressive. For example, recently, a guard slammed a door on my hand because I complained about the unsanitary conditions.”)30
Every person who enters the detention centers is a potential source of COVID19 exposure. ICE may be sporadically screening people for symptoms or contacts with known cases, but such screening is not an effective way to avoid exposure, given the known risk of asymptomatic and pre-symptomatic carriers. Scharf Decl., ¶ 8. The only effective screening tool to prevent transmission of COVID-19 into NOLA ICE detention facilities is a COVID-19 test. But testing every detained individual, as well as every staff member, contractor, or legal visitor on their entry into the detention center, is impossible because of the severe shortage of testing available in the United States. Scharf Decl. ¶ 27.
Further, to the best of Plaintiffs’ knowledge, ICE has not issued any policy or directive requiring this type of rigorous testing for any of the detention facilities in the NOLA ICE region. Y.P.T. Decl. at ¶13 (explaining that persons continue “frequently rotating in and out of the dorms.”); B.A.E. Decl. at ¶5 (revealing that “[ICE officers at LaSalle Jena] told [them] that coronavirus cannot be used to make them release people and they confirmed that they plan on continuing to transfer new detainees into this facility.”); R.P.H. Decl. at ¶5 (stating that ICE “continue[s] to bring women from the outside and house them among the group without confirming whether they are healthy or free of coronavirus.”); Rose Murray, Esq. Decl. at ¶4 (explaining that “at Pine Prairie a detained man reported that his dorm Charlie Charlie, is now under quarantine but that “on Monday, April 6, 2020 a man in his dorm who
30 Miriam Magaña Lopez & Seth M. Holmes, Ice Agents Are Still Performing Raids – And Using Precious N95 Masks to Do So, The Guardian, Mar. 31, 2020, https://bit.ly/2UEiEkr.

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presented with fever and cough was taken to medical” only to be “transferred from medical to the Charlie Bravo dorm” a day later. He added that, “[n]o one in is dorm is offered explanation for these procedures and transfers.”); Dkt. No 63, O.M.H. Decl. ¶12 (stating that “Despite the threat of coronavirus, the overcrowded dorms and the poor conditions, ICE was transferring more and more men to Richwood.”).
3. Impossibility of Social Distancing and Unhygienic Conditions Continue Class members continue to report a lack of access to soap and cleaning materials,
preventing compliance with the Centers for Disease Control’s recommended hand hygiene and sanitation measures. Y.P.T. Decl. at ¶¶26-28 (“Previously, there were soap dispensers in the showers, but they have now been removed. Instead we are provided very little soap in little plastic bottles that last maybe two or three occasions if you use it sparingly and are usually emptied in one day. This soap is only provided upon request from an officer and it is first come first serve. The only way to get soap once the supply the officers have run out is to purchase soap from commissary using our own money. If our families and loved ones cannot send us any money, then we cannot buy soap.”); see also B.A.E. Decl. at ¶¶6-7 (explaining that declarants were not provided with soap last week and had to buy soap from commissary if they had money and wanted to bathe); R.P.H. Decl. at ¶5 (stating that the amount of soap provided is insufficient to clean their body); L.P.C. Decl. at ¶7 (stating that despite begging, no soap was provided to them, and subsequently they experienced flu like symptoms). Detention centers are particularly susceptible to rapid spread due to their congregate nature and overcrowding. Scharf Decl. ¶ 3.
There is no way to practice social distancing in Louisiana Detention Centers. Scharf Decl. ¶ 10. At these facilities, detained people live in extremely close quarters, often in shared dorms with dozens of people sleeping feet apart from each other, or in small shared cells. Id. Plaintiffs have observed very few, if any, changes within their facilities over the last several

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days in response to the pandemic. R.P.H. Decl ¶ 1-28.; L.P.C. Decl. T.M.F. Decl. ¶ 1-25; Y.P.T. Decl. ¶ 1-28; S.U.R. Decl. ¶ 1-18; B.A.E. Decl. ¶ 1-15; K.S.R. Decl. ¶ 1-21.
4. History of Insufficient Medical Care Continues In May 2017, the Human Rights Watch released a report “based in large part on review
by independent medical experts of ICE’s own investigations into deaths in custody and based on independent review of detained individuals’ medical records as well as interviews with people who have been detained.”31 In their report, experts identified “repeated, clear-cut instances of subpar medical care, including inadequate care that contributed to seven deaths in detention and numerous examples of systemic substandard and dangerous medical practices in other cases—such as overreliance on unqualified medical staff, delays in emergency responses, and requests for care unreasonably delayed.”32
Plaintiffs and other detained individuals in the NOLA ICE region corroborate these ongoing issues. Y.P.T. Decl. at ¶¶4-6 (describing ICE ignoring their tooth ache after many complaints only to learn there was no available medicine when finally taken to medical); Id. at ¶ 10 (describing that a detainee with asthma was given salt and ibuprofen and told that was all available as a remedy); Id. at ¶ 11 (reporting that an elderly asthmatic detainee was promised antibiotics and never received them); Id. at ¶ 12 (reporting that a particular detainee with heart problems is put in segregation any time that he complains about the pain); K.S.R. Decl. at ¶2 (stating that “if someone makes a medical request [at South Louisiana], it takes over two days to get a response.”); R.P.H. Decl. at ¶5. (reporting that “[t]here are two women in my bunk with a serious cough, but no one checks on them or comes to our dorm to take their temperature. If you go to medical, you are given ibuprofen and sent back to your dorm.”);
31 “Systemic Indifference,” Human Rights Watch, May 8, 2017, available at https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandardmedical-care-us-immigration-detention. 32 Id.

Case 1:19-cv-01593-JEB Document 65 Filed 04/08/20 Page 10 of 14
L.P.C. Decl. at ¶9 (describing that detainees “do not have access to nutritious food. [They] have been detained for longer than six months. Due to [their] prolonged confinement and the H1N1 that already spread in this facility, [they] feel particularly weak and vulnerable.”); Rose Murray, Esq. Decl. at ¶¶6-7 (describing that another detained man, known as J.L.A., who suffers from type two diabetes “expressed frustration with the quality of the food he is provided at Adams. He emphasized that diet is one of the most important ways for him to manage his diabetes, but the food he is provided does not have enough protein and contains too much sugar. J.L.A. explained that he is fatigued all day long and does not sleep well at night because he is not able to stabilize his sugar levels.”); Id. at ¶8. (explaining that E.M.G., a 53-year-old woman detained at Adams, who suffers from diabetes, fatty liver disease, and lupus, reported that on Monday April 6, 2020, she had been “vomiting and not able to hold down much food for days.” She also related that her sugar levels have been very high, reporting following glucose readings over the last several days: “374, 295, 196, 76.”).
Another asylum seeker, a 40-year-old Nigerian national detained at LaSalle Jena, reports: “I have suffered from Graves’ disease since 2017. Graves’ disease is an autoimmune disorder in which a person’s immune system attacks their thyroid. The disorder caused me to develop a mass in my thyroid and for my thyroid to become overactive. It has also contributed to hair loss, heart palpitations, goiter/difficulty swallowing, malnutrition, constipation, insomnia. I have been hospitalized about seven times due to my condition. I am currently losing my vision as a result of my disease and due to the impact of conditions of confinement on my health. I also suffer from hypertension and asthma, requiring daily usage of four inhalers.” T.M.D. Decl. at ¶2. She shares, “[o]n or about March 22, 2020, an officer at LaSalle forced me to choose between medical isolation or signing a waiver of liability, should I get sick with COVID-19. I am already suffering from claustrophobia, anxiety and depression in this facility, so I hesitated. I then heard another officer state ‘drag the bitch’ to medical

Case 1:19-cv-01593-JEB Document 65 Filed 04/08/20 Page 11 of 14
isolation if I refused to sign. I felt immediately in danger of having force used against me and so I reluctantly signed the waiver.” Id. at ¶3.
On or about April 3, 2020, T.M.D. shares another incident of undue force at the hands of a nurse in the medical unit. Id. at ¶¶4-9. The nurse refuse to treat her despite her visible labored breathing, high heart rate and complaints of chest pain. Id. The nurse also refused to schedule an appointment for her to see a doctor. Id. T.M.D. also reports, “[t]here are women in my dorm that are older, asthmatic, and diabetic. We have about six people in wheelchairs and one of the oldest women is about seventy-two years old. She has been detained here for over a year.” Id at ¶24.
C. BOILER PLATE DENIALS OF PAROLE REQUESTS AND VIOLATIONS OF THE DIRECTIVE CONTINUE
Defendants’ continued practice of depriving individualized parole assessments to the majority of Plaintiffs, as required by this Court and the Parole Directive, puts the health of detention officials and Plaintiffs at risk of irreparable harm, including grave illness and death. Releasing vulnerable individuals mitigates the overall risk of a COVID-19 outbreak in any detention facility, because it reduces the total number of detained individuals, thereby permitting greater social distancing, and reducing the staff’s workload. Multiple Plaintiffs report that they continue to receive boiler plate denials citing them as a flight risk without rational or explanation. See Y.P.T. Decl. at ¶29; K.S.R. Decl. at ¶9; R.P.H. Decl. at ¶7; L.P.C. Decl. from Plaintiffs’ March 31, 2020 filing at ¶12; T.M.F. Decl. from Plaintiffs’ March 31, 2020 filing at ¶9.
Additionally, Plaintiffs report that ICE violates the Parole Directive in other manners, such as failing to provide them a parole interview (See R.P.H. Decl. at ¶7), failing to provide a written decision of the parole denial (See B.A.E. Decl. at ¶¶8-11), and creating heightened

Case 1:19-cv-01593-JEB Document 65 Filed 04/08/20 Page 12 of 14
burdens not enumerated in the Directive (See K.S.R. Decl. Plaintiffs’ March 31, 2020 filing at ¶9).
Plaintiffs are also concerned with the reliability and accuracy of Defendants’ reported data, as some Declarants report that ICE officials refuse to accept their parole requests, or altogether fail to respond to applications. For example, one man shared that “ICE officers … would not accept our parole requests and they would not provide us information.” Dkt. No. 63, O.M.H. Decl. at ¶12. A woman detained at South Louisiana reported that a Deportation Officer named “Officer Silva[,] refused to accept [her] documents and told [her that she] would just have to wait until [her] court date,” adding that “parole is simply not granted in Louisiana.” L.P.C. Decl. from Plaintiffs’ March 31, 2020 filing at ¶12. In addition, a man formerly detained at Adams reported that after filing a thorough parole application with the help of his U.S. citizen sponsor, “[he] was never provided a parole interview nor any decision on the request.” Dkt. No 63, S.U.R. Decl. at ¶9. Such reports call into question the reliability and accuracy of the data in the Defendants’ monthly reports. Deportation Officers who sit on parole requests without issuing a decision invariably affect the numbers that Defendants include in the monthly reports, as these parole requests remaining in limbo cannot be (and are not) included in the monthly report total of parole requests granted and/or denied.
II. CONCLUSION The situation for these detained asylum seekers is worsening at an exponential pace, as COVID-19 spreads. Health experts point out that Louisiana and Mississippi are already at a disadvantage with respect to access to health care services for the non-detained population, and this limited ability to respond to an outbreak of COVID-19 in a detention setting will likely result in deaths, as the ongoing, deadly outbreak at the Oakdale Correctional Facility shows. Plaintiffs’ concerns appear to be shared by the staff in some of the detention facilities in Louisiana, as evidenced by the reduction in staff documented by Plaintiffs. Given these

Case 1:19-cv-01593-JEB Document 65 Filed 04/08/20 Page 13 of 14
circumstances, Plaintiffs ask this Court to require Defendants to provide immediate, individualized parole assessments to all current and future class members in the NOLA ICE region.

Dated: April 8, 2020

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

Case 1:19-cv-01593-JEB Document 65 Filed 04/08/20 Page 14 of 14

CERTIFICATE OF SERVICE
I hereby certify that, on April 8, 2020, I electronically filed the attached FACTUAL REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

Case 1:19-cv-01593-JEB Document 65-1 Filed 04/08/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF B.A.E.

I, B.A.E., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My initials are B.A.E. and I am a Cameroonian national detained at the LaSalle Detention Facility (“LaSalle”) in Jena, Louisiana. I provided my declaration for the recent motion filed with the court, and now provide updates on the circumstances I discussed in my previous declaration.
My State of Health

2. I continue to suffer from chest pain and a sore throat. Thankfully I am no longer coughing up blood. However, due to my symptoms I visited the medical unit.
3. It took some time, but the medical staff finally believes I had been coughing blood. They thought I was lying and made me cough into a cup to see if blood would appear. Finally, a nurse there was kind enough to schedule an appointment for me to see a doctor on April 13, 2020. Thus far I have been provided tablets of ibuprofen and some antibiotics which gave me diarrhea.

Case 1:19-cv-01593-JEB Document 65-1 Filed 04/08/20 Page 2 of 4
ICE Precautions
4. ICE officers visit the dorms about once a week. Recently, they came to the dorms to tell us that we should not be scared because the coronavirus is containable and not that dangerous. They told us that the flu is more dangerous than this virus. They said that it takes care of itself without any medication or treatment and that we would be fine if we did get it.
5. Another officer told someone in my dorm that they must have cancer or a serious chronic illness to be released on parole. They told us that coronavirus cannot be used to make them release people and they confirmed that they plan on continuing to transfer new detainees into this facility.
Conditions of Confinement
6. To my knowledge, no one has been released from here due to coronavirus. The people who have been taken from here recently were processed for deportation. My dorm continues to be crowded and many men are experiencing flu-like symptoms including runny nose, cough, and sore throat. However, the only symptom they take seriously is if you present a fever.
7. We are no longer being provided soap in the bathroom dispensers. Instead, we are given small bottles of liquid soap. The soap runs out within one day. Last week we were not provided any soap whatsoever. We have to buy soap at the commissary. Those who do not have family members putting money in their accounts are forced to bathe without soap.
Status of My Parole Request
8. On or about March 12, 2020 I mailed my most recent parole request to my assigned DO at the River Correctional Center. I did not receive a prompt response. On or about April 1, 2020, I attempted to contact ICE for an update using the computer in the law library. On

Case 1:19-cv-01593-JEB Document 65-1 Filed 04/08/20 Page 3 of 4
or about April 2, 2020 I received an email stating “I do not see any updates at this time in the system.” As soon as able, I replied “Thanks for your prompt response but could you please reach out to the DO for updates or to know if he even received my application.” Thereafter, I received a response that the Acting Field Office Director denied my parole based on flight risk. 9. Last week when the ICE officer conducted his rounds at the dorms I asked about the denial. I asked the officer, “What is a flight risk?” To this, the DO responded that he does not know why officials use flight risk to deny the applications. 10. I told him about all of the documents I submitted with my parole request, including my cousin and proposed sponsor’s state-issued driver’s license, U.S. passport, utility bills, copies of my identity documents and evidence of my family members, my employment and certificate of achievement from Cameroon. 11. ICE has not provided me with a formal parole denial letter. I only know that I was denied because I was able to write in English and reach out by email. I plan to file a redetermination of my parole request as soon as possible. I do not understand why I was determined to be a flight risk when I have a strong asylum claim and my sponsor is a U.S. citizen family member, ready and willing to help me upon my release. 12. I especially hope that the government will think I am deserving of release on parole at the present time, as I find the virus going around concerning, and am not sure that I can trust the information they have provided about it.

Case 1:19-cv-01593-JEB Document 65-1 Filed 04/08/20 Page 4 of 4

VERIFICATION

I, B

A

E

am the individual referred to as B.A.E. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez

On behalf of witness B

A

E

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-2 Filed 04/08/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF K.S.R.

I, K.S.R., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I was born in Holguin, Cuba. I am a 27-year-old asylum seeker detained at the South Louisiana Correctional Facility in Basile, Louisiana (“South Louisiana”). I am a native Spanish speaker and I do not speak English. I am the declarant known as L.P.C. and I hereby attest to the conditions of my continued confinement as of April 6, 2020.
Changes Due to Coronavirus

2. To my knowledge, only two women from my dorm were released early last week and they did not have medical conditions. The facility continues to deprive us of sufficient hygienic and sanitary products to keep ourselves clean and safe from infection. There is not enough soap and they refuse to give us sanitizer or proper cleaning supplies to disinfect our shared space, including the bathrooms and showers. We are still living in overcrowded dorms. There are about 72 women in my bunk. If someone makes a medical request, it takes over two days to get a response.

Case 1:19-cv-01593-JEB Document 65-2 Filed 04/08/20 Page 2 of 5
3. Another thing I noticed is that officers are playing with camera visuals. When we go to the cafeteria, we walk all in close proximity to one another. As we start getting close to the cafeteria and the camera facing us, they order us to keep 6 feet apart from each other as we each pick up our food tray. Then, once we are out of the camera’s view, we are overcrowded again, and no social distancing is exercised because it is impossible.
4. I am also very concerned that to this day, the detained women serving our food only wear a set of gloves. They do not wear masks or other protective equipment. In addition, I noticed that our food portions are getting smaller. Everyone is fed the same food here, no matter if you have any dietary needs due to illness. The food is overloaded with sodium.
5. As of yesterday, the Echo Delta dorm is under quarantine again. Last week they were quarantined for three days. Then the quarantine was lifted for a day. We are not told why they are under quarantine and no one has confirmed whether coronavirus has already entered this facility.
6. The guards and staff continue in their failure to take precautions to avoid infecting us with coronavirus. They do not wear personal protective equipment or masks. With respect to my dorm, there are still two guards supervising us. However, I noticed that there are fewer guards overall. The guards that remain here are now working longer hours, doing double shifts due to staff shortage.
Retaliation for Speaking Out
7. I believe the warden and guards are retaliating against us for talking to the media. In recent days, several of us spoke to a New York Times reporter who leaked a video taken with a tablet in our dorm. The warden came to our dorm very upset and stated that our tablet privileges were going to end if we keep talking to media. While we still get to use the

Case 1:19-cv-01593-JEB Document 65-2 Filed 04/08/20 Page 3 of 5
tablets, we are given less time to use them now. They also made very clear that they would “write up” anyone who continues to talk to media or who make posters out of protest. 8. Today the warden brought written regulations to our dorm which appear to state that we could be criminally charged for our inappropriate use of the tablets. I am speaking out to the media because I am afraid to get very sick or die in here. Now I am afraid that doing so will result in punishment or criminal charges. Status of My Parole Request
9. On or about March 12, 2020, I received a denial for my parole redetermination request, again based on flight risk without further explanation. I submitted another redetermination request on March 13, 2020. Suddenly, two days ago the DO told me he was going to conduct my sponsor interview and get back to me with a decision. I hope I will soon be released to my family where I can protect myself and others during this pandemic.

Case 1:19-cv-01593-JEB Document 65-2 Filed 04/08/20 Page 4 of 5

VERIFICATION

I, K S

R

am the individual referred to as K.S.R. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Victoria Mesa-Estrada, Esq.

On behalf of witness K S

R

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-2 Filed 04/08/20 Page 5 of 5
CERTIFICATION I, Victoria Mesa-Estrada, declare that I am proficient in the English and Spanish languages. On April 6, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 6, 2020
____________________________ Signature

Case 1:19-cv-01593-JEB Document 65-3 Filed 04/08/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF L.P.C.

I, L.P.C., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a 26-year-old Cuban asylum seeker detained at the South Louisiana Correctional Center (“S. Louisiana”) in Basile, Louisiana. I am a native Spanish speaker. I do not speak any other languages. I am the declarant known as L.P.C. and I hereby attest to the conditions of my continued confinement as of April 6, 2020.
Changes Due to Coronavirus 2. Here the women have grown more hopeless now that only one deportation officer (DO) remains to review all our requests for parole. His name is DO Long. When I first arrived at South Louisiana, there were five DOs assigned to our cases at any given time. 3. In or about late March 2020, three of the DOs who remained at the time came to my dorm, Echo Bravo. To the best of my knowledge and memory, their names were DO Gonzalez, DO Gonzalez and DO Brownfeld. They spoke to us from the door and told us they were leaving and not coming back. We asked why and they told us it was because ICE didn’t want to pay them hazard pay.

Case 1:19-cv-01593-JEB Document 65-3 Filed 04/08/20 Page 2 of 5
4. There are over 300 women left here in this facility and the overwhelming majority of us are arriving asylum seekers. Nearly all the people who entered unlawfully or overstayed their visas have secured their release by paying bond granted to them by an Immigration Judge. Unfortunately, we do not have that option.
Growing Tension in the Facility 5. Things are also growing more tense as we become more desperate and afraid of COVID19 infection and as some GEO staff have quit or stopped taking shifts. For example, now we are seeing the same few guards for multiple shifts. One of the officers who worked supervising the kitchen left. Another who was very kind to us and who worked night shifts quit. We assume they are as scared as we are of getting sick here with COVID-19. 6. A few women detained here shared their story with the media and used the tablets to display signs they made in English stating their fear of infection. As a result, the staff and the director named Ramos are angry with us. He threatened to permanently take away the tablets if they do something similar again. The staff yell at us and belittle us with more frequency. For example, recently I was served chicken that was too burnt for consumption. I asked one of the GEO officers named Lisby to please replace my chicken because it was inedible. She refused and responded, “no one forced you to come to this country.”
Failure to Take Precautions 7. There is a paper posted in our dorm stating that every Tuesday and Thursday we are to receive soap and toilet paper. This past Thursday came, and we did not receive anything. We begged all day on Friday and they finally provided us some toilet paper, but no soap. My dorm now has 69 women and many of us continue to experience flu-like symptoms. I am very stressed and scared. I have my next court date on April 16, 2020 but I have been

Case 1:19-cv-01593-JEB Document 65-3 Filed 04/08/20 Page 3 of 5
unable to write my declaration in support of my asylum claim because they only allow us to use the computer one at a time for no more than an hour. 8. The guards here still refuse to take precautions. They do not wear masks and they do not consistently wear gloves, or they use the same gloves all day, touching multiple people and unhygienic surfaces. Recently we spoke to Director Ramos and he told us he cannot obligate his employees to use masks. Here there is a pastor that comes to the facility to minister to us. He told us that even the staff at the facility are worried. He said that the people in charge do not know what they are doing and have no idea the risk they are taking with people’s lives. 9. We are all depressed and scared. We strongly feel we are at risk of becoming ill with COVID-19. We do not have access to nutritious food. We have been detained for longer than six months. Due to our prolonged confinement and the H1N1 that already spread in this facility, we feel particularly weak and vulnerable. We hope that ICE will release us soon, even if it is on condition of bond or with ankle monitors. We want to avoid getting sick again, causing others to get sick, or dying in here. I hope I will be released soon so that I can self-quarantine safely with my family and loved ones.

Case 1:19-cv-01593-JEB Document 65-3 Filed 04/08/20 Page 4 of 5

VERIFICATION

I, L P C

am the individual referred to as L.P.C. in the attached declaration.

I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf

given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic.

I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-

19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this

facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness L P C

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-3 Filed 04/08/20 Page 5 of 5
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On April 6, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 6, 2020
Signature

Case 1:19-cv-01593-JEB Document 65-4 Filed 04/08/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF R.P.H.

I, R.P.H., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am the declarant known as R.P.H. and I hereby attest to the conditions of my continued confinement as of April 6, 2020. I am a Cuban national detained at the South Louisiana Correctional Center (“South Louisiana”) in Basile, Louisiana. I am fifty (50) years old and I am a breast cancer survivor. I am a native Spanish speaker. I do not speak English.
Changes Due to Coronavirus

2. The only people released from this facility recently were those granted a bond by the Immigration Judge. Several Deportation Officers (DOs) have left and there are fewer GEO guards working here. When I first arrived at this facility, there were 5 to 7 DOs reviewing our parole requests at any given time. Now, only one remains. His name is DO Long. To my knowledge, there are over 200 arriving asylum seekers here, all of whom are desperate for release on parole.

Case 1:19-cv-01593-JEB Document 65-4 Filed 04/08/20 Page 2 of 5
3. Due to these changes, the breakfast is now scheduled for 5:00 a.m. and lunch is served at 3:00 p.m. However, sometimes breakfast does not arrive for a long time and I need to eat before I take my medications. The officers that do remain are not wearing any protective gear or masks and they have become more aggressive. For example, recently, a guard slammed a door on my hand because I complained about the unsanitary conditions. A few days ago, another guard hit a woman on the back because she expressed fear of contracting the virus.
4. About four days ago a female guard was terminated. She had complained of having a fever. Before she left, she told a few of us that she had been terminated. Since Sunday, I noticed that there is a significant drop in the number of guards at the facility. At one point a single guard was placed in charge of supervising three dorms. When I first arrived here, there were two officers assigned to supervise each dorm. Additionally, the guards are afraid to enter the holding areas with us. Some of the officers are now sending us to serve food, because they are afraid of contracting coronavirus.
Conditions of Confinement
5. We are still packed in close quarters. There are about 72 women in my bunk alone. The facility officials are still not providing sanitizer or cleaning supplies. We are still not being provided enough to soap to clean ourselves. There are two women in my bunk with a serious cough, but no one checks on them or comes to our dorm to take their temperature. There continues to be limited access to medical care. If you go to medical, you are given ibuprofen and sent back to your dorm. They continue to bring women from the outside and house them among the group without confirming whether they are healthy or free of coronavirus.

Case 1:19-cv-01593-JEB Document 65-4 Filed 04/08/20 Page 3 of 5
6. Aside from the two women in my bunk, I also know that there are four women who appear to be in isolation. One of them is named Cynthia. I know her because she was working in the kitchen with me when the guards came to get her because she had a fever. I have not seen her since. These four women in are held in a separated area. I have personally seen nurses covered in personal protective equipment go in and out of that area. No one knows what is happening inside this designated space. We are terrified that these women have already been infected with coronavirus.
Status of My Parole Request
7. My fourth and most recently submitted parole request was denied on March 20, 2020, once again citing flight risk without an explanation as to how or why ICE made this determination. Not once in the last eight months that have I been provided a parole interview. I plan to submit a redetermination request tomorrow with legal assistance. I pray I will finally be granted release to my family’s home in Florida where I can self-quarantine to keep myself and others safe during this pandemic.

Case 1:19-cv-01593-JEB Document 65-4 Filed 04/08/20 Page 4 of 5

VERIFICATION

I, R P H

am the individual referred to as R.P.H. in the attached declaration. I

declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Luz V. Lopez, Esq.
On behalf of witness R P H

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-4 Filed 04/08/20 Page 5 of 5
CERTIFICATION I, Luz V. Lopez, declare that I am proficient in the English and Spanish languages. On March 26, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 6, 2020
Signature

Case 1:19-cv-01593-JEB Document 65-5 Filed 04/08/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF T.M.F.

I, T.M.F., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a 44-year-old Cameroonian national detained at the LaSalle Detention Center (“LaSalle”) in Jena, Louisiana. I speak English fluently. I am the declarant known as T.M.F. and I hereby attest to the conditions of my continued confinement as of April 6, 2020. To my knowledge, no one housed in my dorm and no one housed in any adjacent dorm has been released due to the COVID-19 pandemic.
Conditions of Confinement

2. Here, we continue to be deprived of sanitizer and proper cleaning supplies to disinfect our crowded dorm and shared bathrooms. We have only been provided some more soap by the sinks for us to wash our hands. We are not given shampoo or enough toilet paper.
3. I have not seen any ICE deportation officers (DOs) for at least two weeks. The last time I saw a DO was just after the violent response to the hunger strikes. The DO told us there were two confirmed cases of coronavirus at the River Detention Center.

Case 1:19-cv-01593-JEB Document 65-5 Filed 04/08/20 Page 2 of 3
4. The living situation in my dorm is terrible. There are about 80 men in my dorm and many are sick or experiencing flu-like symptoms. Men are coughing and sneezing in our crowded dorm. When we go to medical, we are just given some tablets of ibuprofen.
Changes Due to Coronavirus
5. I also noticed that guards are calling out of work. For example, a few nights ago, the night shift officer had to stay for the following day shift. She was not relieved of duty because the officer assigned to that shift did not arrive. Since the last pepper spraying incident, the guards continue to behave aggressively. They yell at us frequently and they shove some of the people detained here.
6. I am not aware of any confirmed COVID-19 cases at this facility. However, I fear it is only a matter of time. A few men in my dorm were once again denied parole last week. I have not reapplied for parole because ICE told me they would reconsider releasing me 30 days after I was granted relief under the Convention Against Torture. Four weeks have passed since that date and I have not heard from any ICE officer about my continued detention. If I am not released soon, I plan to seek help to apply for my release. I do not want to die in here after everything I endured to save my life escaping torture in Cameroon.

Case 1:19-cv-01593-JEB Document 65-5 Filed 04/08/20 Page 3 of 3

VERIFICATION

I, T

M

F am the individual referred to as T.M.F. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Luz V. Lopez, Esq.

On behalf of witness T

M F

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF Y.P.T.

I, Y.P.T., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My initials are Y.P.T. I provided my declaration for the recent motion filed with the court, and now provide updates on the circumstances I discussed in my previous declaration. I am a native Spanish speaker. I do not speak English.
My Injuries and Medical Treatment 2. In my prior declaration, I informed that I had fractured my foot in the yard here at Catahoula when I fell because the ground was wet. 3. I remain in a great deal of pain and incapacitated by the fracture, and the inadequate medical attention to my injury. I have to rely on my friends in detention to help me stand in the shower if I want to bathe, and I do not dare complain to the officers because I have seen them send people to “the hole,” or segregation for complaining. 4. Something I had not mentioned in my last declaration but will mention now because the pain has become unbearable is that I have developed a terrible toothache. It hurts so badly that I cannot help but cry at this point. I have requested medical care for the tooth ache

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 2 of 8
many times now. The officers continuously told me “soon.” After weeks of asking, someone from medical finally saw me today. 5. I was so glad to be told I was going to medical thinking that my pain would finally be soothed. However, when I arrived, they informed me that there is no medication available for infection and that all they can offer me is salt and ibuprofen. 6. They have told me they will see me again on Wednesday, but at this point I will just request to have my tooth pulled instead of continuing to request treatment that may never come. I do not think I can keep waiting and bear the pain otherwise. I was told by the nurse that saw me last time that even getting my tooth pulled would require ICE approval, and who knows how long that will take. Update on Conditions Since Coronavirus 7. Since my last declaration, I have noticed a greater number of people coughing and complaining about sore throats both inside and outside of my bunk. 8. The individuals who complain about having fever are thrown in “the hole,” or segregation, which is a completely windowless area where an individual is left by themselves with just a light above their heads. 9. I know at least three other people detained here with me have suffered deterioration in their health despite their best attempts to seek medical attention. 10. My friend R.R.P. is asthmatic and hasn’t received any adequate medical care despite his vulnerability to coronavirus. All he was given from medical was salt and ibuprofen. They told him that there was no medication for asthma and that was all that was available. His breathing is very strained. 11. Another friend of mine, Y.M.P., is elderly and also has asthma that is flaring up and has sores on his tongue. He went to medical out of concern that the worsened asthma and

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 3 of 8
tongue sores might be related to COVID-19 since they really have not provided us with further information. They told him that the tongue sores were a result of the food he was eating here at the center, and that there was nothing they could do for his asthma. When he really begged, they told him that maybe they would be able to get him antibiotics. It has been six days and they still have not given him antibiotics. 12. Another friend of mine who is also Cuban, C.G.A., has heart problems and asthma. He has also gone various times to medical, and they do not help him at all. The officials have medical records on his heart issues, but still do not give him any medication. They only put him in “the hole” or segregation whenever he complains about chest pain or his heart. 13. There are people frequently rotating in and out of the dorms. There are people who show up with fever and symptoms, and then quickly disappear after a few days. However, they are around us all who have been here for a long time, and I fear that whatever symptoms they have may be spreading to us while they are here at the center. 14. I am even more terrified than I was when I gave my previous declaration. Even though the officers say that I should not believe what I see on the news, I do. The virus is making people suffocate to death by affecting their lungs. They are saying that being away from other people is the only way to limit the spread of the virus. I currently am living in a dorm with about ninety-six other people in close quarters. I am terrified for myself and my friends, especially those that I mentioned have asthma. Changes in ICE Conduct 15. Hardly anything has changed since I last provided a declaration. Things are slightly different, but mostly the same. 16. ICE officials continue in their failure to provide us with sufficient or even accurate information.

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 4 of 8
17. They sent an official to come and speak with us about the virus, but it was honestly a waste of time. He told us that the virus is no worse than a cold, and that it cures itself over time. This was very upsetting because we are detained immigrants, but we are not ignorant about this dangerous virus and the lethality of the disease it causes.
Disregarding News and Media Reports
18. We watch the news here and see what is going on in the world. When we have confronted officers about the many people dying and becoming severely ill as we have seen on the news, they usually tell us that the news and media lie to us, and that we should not believe what we see on the news. That is ridiculous to me. This is the news in the great free country of the United States, not the propaganda filled trash that is broadcast from my home country of Cuba. These are medical reports of facts on the news. It is insulting to our intelligence that they tell us these news reports by medical experts are lies. Moreover, it is dangerous to spread misinformation in here.
No Tests, Masks, or Gloves
19. I have not been tested at all for the virus since I have been detained. From what I can gather, the way they determine if someone has the virus is by guessing when they have a fever that is bad enough.
20. The officers do not wear any sort of masks or gloves. Quarantine and Sleeping on the Floor
21. The dorms where individuals have been reported to have fever are in quarantine, which means that there is a paper on their door stating so, and that they cannot leave their dorm. I cannot even imagine being stuck with so many people in tight quarters and not being able to leave, but I know that it might happen in our dorm soon.

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 5 of 8
22. I have seen people sleeping on the floor in those dorms, but I am not really sure what purpose this serves.
23. That is all I have seen the staff do here in response to someone presenting with a fever that they suspect has the virus. I do not know more because whenever we ask, they ignore us and do not provide us with any answers or information.
Limiting Time Outdoors
24. Another change that has occurred is that they have cut our time outside down to one hour per day. This drives me even more insane because I cannot stand being confined here anymore after all this time and am desperate to see the sun.
Limiting Soap
25. I have heard experts on the news repeatedly state that washing our hands and bodies with soap is one of the best ways to protect ourselves from the virus.
26. Previously, there were soap dispensers in the showers, but they have now been removed. Instead we are provided very little soap in little plastic bottles that last maybe two or three occasions if you use it sparingly and are usually emptied in one day.
27. This soap is only provided upon request from an officer and it is first come first serve. 28. The only way to get soap once the supply the officers have runs out is to purchase soap
from commissary using our own money. If our families and loved ones cannot send us any money, then we cannot buy soap. Updates on my Most Recent Parole Application
29. The last time I applied for parole was on April 1, 2020. I was once again denied for flight risk without explanation or rationale.

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 6 of 8
30. This month I will be submitting my fourth parole application. Since they give me no information as to what I have done to make them think I am a flight risk, I am just guessing at what else I can include to further prove that I am here out of genuine fear for my life and that I respect the laws of the United States. I sincerely pray that they re-evaluate my case and allow me the opportunity to be reunited with my family and be outside of this lifethreatening confinement.
31. If I were released on parole, as I have informed ICE numerous times, I would selfquarantine with and be cared for by my uncle, who has been a Lawful Permanent Resident for about twenty-one years, and my cousin, who has been a Lawful Permanent Resident for about seven years.

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 7 of 8

VERIFICATION

I, Y

P T am the individual referred to as Y.P.T. in the attached declaration.

I declare under penalty of perjury that the foregoing is true and correct.

I have authorized legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez

On behalf of witness Y

P T

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-6 Filed 04/08/20 Page 8 of 8
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On April 6, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 6, 2020
Signature

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF T.H.D.

I, T.H.D., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a forty-year-old Nigerian woman currently detained by ICE at LaSalle ICE Processing Center (“LaSalle”) in Jena, Louisiana. Before ICE detained me, I was a nursing student at Grambling State University in Louisiana. I speak English fluently.

Medical Conditions and Related Experience in Detention

2. I have suffered from Graves’ disease since 2017. Graves’ disease is an autoimmune disorder in which a person’s immune system attacks their thyroid. The disorder caused me to develop a mass in my thyroid and for my thyroid to become overactive. It has also contributed to hair loss, heart palpitations, goiter/difficulty swallowing, malnutrition, constipation, insomnia. I have been hospitalized about seven times due to my condition. I am currently losing my vision as a result of my disease and due to the impact of conditions of confinement on my health. I also suffer from hypertension and asthma, requiring daily usage of four inhalers.

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 2 of 7
3. On or about March 22, 2020 an officer at LaSalle forced me to choose between medical isolation or signing a waiver of liability, should I get sick with COVID-19. I am already suffering from claustrophobia, anxiety and depression in this facility, so I hesitated. I then heard another officer state “drag the bitch” to medical isolation if I refused to sign. I felt immediately in danger of having force used against me and so I reluctantly signed the waiver.
4. I had another horrible experience at medical on the night of Friday April 3, 2020. I have been experiencing chest pains, shortness of breath and asthma attacks almost every night for several days. In the evening, a nurse came to the dorm to pass out medications and she noticed my labored breathing. She asked what was wrong with me and I explained my difficulty breathing. She checked my vitals and said my pulse was very high. She called over the officer on duty and requested that I be sent to medical because I needed to be seen immediately.
5. When they took me to medical, the nurse that was on duty asked me why I needed to see her and I explained that I have chest pain and that my ribs hurt, which I have complained about for over two months without any medical response. She then shoved me in the chest with force which hurt a lot. I looked visibly hurt and groaned in pain. She said she did it to check on me and did it a second time for emphasis. I was visibly upset and asked her why she would shove me with force.
6. She grew angry and said, “Get up and get out of here.” I responded, “But I am sick and now you want me to leave without any help or medical care.” She began yelling at me to get out. I told her again that it was wrong of her to shove me in my chest and she responded, “I can do anything to you, and I can say whatever I like to you.”

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 3 of 7
7. Before leaving without any medical care, I told her I would be writing a formal grievance because I have never seen a nurse bully a patient.
8. I also asked her to please make an appointment for me to see a doctor the next day, to which she responded, “You have to beg me before I will make that appointment for you.” I said in return, “Even though you can see I have chest pain.” She said, “Well your heart rate may be high, but the facility is used to you having an abnormal heart rate. Maybe if it was someone else, I would be concerned. Just get out and leave.”
9. Here, they treat us like animals. They treat us like our lives have no value just because we are detained immigrants. As I suspected, I soon found out the nurse did not make the appointment for me to see the doctor as I had requested because I was never called to medical again.
Changes Due to Coronavirus
10. To my knowledge, no one in my dorm has been released due to the pandemic. I am housed in the Falcon Delta dorm where there are about eighty of us living in close quarters. We share three toilets, four sinks, and six showers all in one open space. People are terrified in my dorm because some people are sick with flu-like symptoms, including some officers. People are sneezing and coughing near each other. The beds are spaced less than two feet apart. It is impossible to practice social distancing.
11. I have complained that the officers coming from the street to the facility are not wearing protective equipment and will sooner or later bring in the virus. The officers are not wearing masks because they said the facility does not allow that. The only measure some have taken is to put on gloves to serve the food, and even then, not all of them wear gloves.

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 4 of 7
12. I noticed they are short-staffed now. Before, each dorm had at least one assigned officer. Now many are working double shifts.
13. One officer who has since left expressly told me that since they do not get tested before coming into the facility, and since the facility is still transferring people in from other jails, she prefers not to work and endanger the lives of her children. Another officer told me that just as I fear they might spread the virus to us, she is scared of working with us as well. I haven’t seen her recently. Right now, one officer is working supervising up to two large dorms. I assume the others stopped working for similar reasons.
14. Recently ICE provided coronavirus information to our dorm. When they presented to us, they were rude and aggressive. They would not allow us to ask questions. When we asked about the insufficient amount of toilet paper and soap, they grew angry and shouted at us.
15. About two weeks ago, ICE officers went to Falcon Charlie to provide information about coronavirus. The women in that dorm were chanting for their release and saying they do not want to be left to die in this facility. That is when they pepper sprayed them.
16. Because Falcon Charlie is next door, the pepper spray entered our dorm and we all began coughing. A girl in our dorm fainted due to an uncontrollable asthma attack. I had an asthma attack. We banged on the door to get help to release us from the dorm to fresh air. Officers entered and immediately began coughing and had difficulty breathing.
17. Shortly after, I saw them taking some of the women from Falcon Charlie in shackles to solitary confinement for chanting.

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 5 of 7
Unsanitary Conditions and People at Risk
18. Today, when they sent us breakfast, I did not touch my tray. It was visibly dirty and clear that the food was placed on a tray that had not been washed. I would not feed my dog with this food.
19. The dorm is also dirty. We try to keep it clean, but it is very crowded and nearly impossible.
20. The water we have to drink comes out of a very rusty tap and it is not clean enough for drinking.
21. Frequently we are not provided sanitary napkins for our periods, and this is not available for purchase at commissary. Once when I had my period, I asked an officer to please bring us sanitary napkins. The officer replied, “I don’t have any and I don’t know where to get some for you.”
22. We are refused hand sanitizer and disinfectant cleaning supplies. Before we had soap in the shower dispensers. They have now removed the dispensers and give us tiny bottles of soap instead. The bottles do not last for two days and it is supposed to last for one week. We cannot stay clean. We are not provided enough soap to wash our hands and shower. We have gone more than four days at a time without soap.
23. We sometimes have to beg for toilet paper and they simply tell us that they do not have any. We run out of toilet paper frequently. Toilet paper is also not sold at commissary.
24. There are women in my dorm that are older, asthmatic, and diabetic. We have about six people in wheelchairs and one of the oldest women is about seventy-two years old. She has been detained here for over a year.

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 6 of 7
Parole Request for Humanitarian Reasons 25. I am not an arriving asylum seeker. However, my attorney has requested parole for humanitarian reasons due to my medical issues. Those requests have been denied. Today my attorney filed yet another request. I hope I am able to leave soon because I am gravely at risk of serious illness or death if I become infected with coronavirus.

Case 1:19-cv-01593-JEB Document 65-7 Filed 04/08/20 Page 7 of 7
VERIFICATION I, T H D am the individual referred to as T.H.D. in the attached declaration. I declare under penalty of perjury that the foregoing is true and correct. I have authorized legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

___________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness T H D

Date: April 6, 2020

Case 1:19-cv-01593-JEB Document 65-8 Filed 04/08/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons et al.
Plaintiffs,
v.
Kevin K. McALEENAN et al.
Defendants/Respondents.

)

)

)

)

Civ. No.: 1:19-cv-01593

)

)

)

)

DECLARATION OF ROSE MURRAY, ESQ.
I, Rose Murray, declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. I am a direct services attorney working for the Southeast Immigrant Freedom Initiative ("SIFI"). SIFI is a project within the Southern Poverty Law Center ("SPLC"). I am based in Alexandria, Louisiana and I provide legal assistance to immigrants detained at various facilities within the state of Louisiana.
2. Within the last two weeks I received several reports from clients and others detained in the region. One of my clients, whom I will refer to as D.K., is currently detained at the Pine Prairie ICE Processing Center ("Pine Prairie") in Louisiana. He reports that the Charlie Charlie dorm is under quarantine. This was confirmed by a different client who is held in the Charlie Charlie dorm at Pine Prairie. D.K. also informed me that the staff at the facility have begun enforcing social distancing measures in the yard and in the cafeteria. However, he expresses frustration because in the yard, they are still placed in groups, just smaller groups.

Case 1:19-cv-01593-JEB Document 65-8 Filed 04/08/20 Page 2 of 4
3. Moreover, D.K. notes that it is physically impossible to practice social distancing in the dorms. Officers send people who are crowded together in dorms to sit separately in the cafeteria, only to be sent back to dorms where they are forced to live in close quarters. He also notes that there is not sufficient ventilation in the dorms.
4. My other client, O.G. is also detained at Pine Prairie and recently reported that his dorm, Charlie Charlie, is now under quarantine. He told me that people detained in this dorm are given gloves and masks to wear but only when they leave their dorm. He also told me that on Monday, March 30, 2020 a man in his dorm who presented with fever and cough was taken to medical. He added that two days later, this man was transferred from medical to the Charlie Bravo dorm. No one in the dorm is offered explanation for these procedures and transfers. Additionally, he reported that on March 31, 2020, another man was taken from his dorm to medical.
5. O.G. is also worried about how the pandemic is affecting legal mail and ability to appeal denial of his claims. For example, a court decision was issued in his case on March 23, 2020 without him present, but as of today, April 7, 2020 he has still not received his copy of the decision and thus cannot speak to what aspect of the decision that is appealing. He is deeply concerned because he needs it in order to receive it, translate it, articulate per the appeal form the reason for error, translate the response onto the forms, and ensure that the appeal forms reach the Board of Immigration Appeals, all by April 22.
6. Another man I will refer to as J.L.A. is detained at the Adams County Correctional Facility ("Adams") in Natchez, Mississippi. J.L.A. suffers from type two diabetes and I spoke with him on March 26, 2020 about his conditions of confinement. J.L.A.

Case 1:19-cv-01593-JEB Document 65-8 Filed 04/08/20 Page 3 of 4
expressed frustration with the quality of the food he is provided at Adams. He emphasized that diet is one ofthe most important ways for him to manage his diabetes, but the food he is provided does not have enough protein and contains too much sugar. 7. J.L.A. explained that he is fatigued all day long and does not sleep well at night because he is not able to stabilize his sugar levels. He added that he feels ill and weak when his sugar levels grow too high. J.L.A. is fearful of coronavirus because he is particularly vulnerable and because they are not provided enough sanitary supplies to keep clean or protect themselves. For example, in his dorm they have gone two days without soap before it is replenished. Additionally, some men in his dorm are sick with flu-like symptoms such as cough and sore throat. 8. E.M.G. is a 53-year-old woman detained at Adams. E.M.G. suffers from diabetes, fatty liver disease, and lupus. On Wednesday April 1, 2020 she told me that she has been vomiting and not able to hold down much food for days. She also reported that her sugar levels have been very high. She reported the following numbers over the last several days: 374, 295, 196, 76. I am not a medical expert, but I know that these levels are dangerous. Based on what I have learned working with doctors on behalfofdiabetic clients, given the blood sugar levels, dizziness, and vomiting, E.M.G.'s condition is indicative of seriously uncontrolled diabetes and possible hyper or hypo glycemic shock. 9. E.M.G. also reported on March 26, 2020 that she has a lump in her breast and is waiting on the results of a mammogram to see if it is benign or malignant with cancerous cells. Due to her lupus, she suffers hair loss and skin discoloration on her face. She requires a special cream, but it is not provided to her in detention. Given her various medical

Case 1:19-cv-01593-JEB Document 65-8 Filed 04/08/20 Page 4 of 4
conditions, E.M.G. is extremely afraid of contracting COVID-19. Her fear is exacerbated by her conditions of confinement. 10. E.M.G. reports that they are not able to practice social distancing at Adams. Her dorm houses about 120 people who are forced to share 12 toilets. Additionally, some of the women in her dorm are suffering flu-like symptoms including fever, chills, sore eyes and throat.
I declare under penalty of perjury that the foregoing is true and correct.
Date: April 7, 2020

Case 1:19-cv-01593-JEB Document 65-9 Filed 04/08/20 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro HEREDIA MONS, et al.

)

)

Plaintiffs,

)

v.

)

Civ. No.: 1:19-cv-01593

)

Chad WOLF, et al.

)

)

Defendants/Respondents.

)

__________________________________________)

ADDENDUM TO DECLARATION OF DR. PETER SCHARF  1. Since I provided my previous declaration regarding the spread of COVID-19 and risks to arriving aliens such as Plaintiffs, new evidence regarding the risk of spread of COVID-19 in Louisiana ICE detention facilities has come to light. There are a number of factors based upon valid Public Heath evidence contributing to the risks of the spread of COVID-19 that should be considered. Below, I include additional information collected after submission of my Declaration on March 28, 2020. Please note that the COVID-19 epidemic in Louisiana has increased in scope, with now (April 6, 2020) over 15,000 people infected and 509 deaths recorded. In addition, ICE has reported multiple fatalities related to COVID-19 in ICE detention facilities.

A. Lack of Medical Supplies and Improper health procedures in ICE Facilities. 2. In response to COVID-19, ICE has decided to further limit detainees’ access to medical/health supplies including soap, towels, and disinfectant. (US ICE, 2020).1 Detainees must now ask guards for additional cleaning and handwashing supplies that were typically made available without request prior to the virus outbreak, according to ICE regulations. Id. Additionally, on a regular basis, detainees are forced to share hygiene facilities and supplies. Id.

1 https://www.ice.gov/coronavirus

Case 1:19-cv-01593-JEB Document 65-9 Filed 04/08/20 Page 2 of 15
Such practices continue during the spread of the virus. Id. For example, they must use shared soap and shared showers in close quarters. Id. These poor health practices by guards and staff of NOLA ICE detention facilities are not up to the standards set forth by ICE. Id.
B. ICE Detention Facilities are Not Able to Meet Social Distancing Requirements. 3. Communal areas in LA ICE detention facilities increase the risk of COVID-19 spread throughout those facilities. Examples of such areas include shower and washroom facilities, areas designated for eating and recreation, and bunks. Bunks are within meters from one another and some consist of bunkbeds where detainees are sleeping above and below each other. These areas increase risk since they are susceptible to overcrowding and high density of population. 4. A high density of detainees is present in the areas of the centers at all times, during day-time recreation as well as sleeping during night-time. The centers present the potential for more than 100 people to be gathered at one time in communal areas. Such conditions of confinement in detention result in difficulty with isolating infected and symptomatic individuals within NOLA ICE detention facilities.
C. Health Risks are Inherent in the Structure of NOLA ICE Detention Facilities: There are a number of factors given the structure of ICE detention facilities that inevitably contribute to the spread of COVID 19 among detainees.
5. ICE regulations are ineffective in preventing the spread of disease. (US ICE, 2020). Inevitable and necessary interactions between staff and detainees take place on a daily basis, during in which the contagion could spread. Id. Examples of such activities include transport, medical examinations, counts of detainees, disciplinary measures, and movement through the facilities. Id. Populations commonly seen in Louisiana ICE Detention Facilities are at a higher risk of contracting infectious diseases than other populations. Id.

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6. Furthermore, detainees are from various parts of the world and have varying strengths of immunity and susceptibility upon entering the facility. There are likely to be a large number of detainees present in any facility who have pre-existing health concerns that would make them more likely to be ‘at risk’ of contracting the deadly virus.
7. Limited cleaning and handwashing supplies available to detainees are also contributing factors to ineffectiveness. This ineffectiveness is furthered by the fact that, when detainees run out, they must explicitly ask guards for additional supplies. Id.
8. Moreover, only symptomatic detainees are taken to isolation, while those detainees who have contracted the virus, remaining contagious to others, but are asymptomatic would not be isolated from the rest of the detainee population under current ICE regulations, thus rendering regulations ineffective. Id.
D. A Number of Articles Document the Difficulties Louisiana ICE Detention Facilities Face in Maintaining Social Distancing Among Detainees as Recommended by Louisiana and Federal Guidelines.
9. CBS News covered the situation regarding the spread of coronavirus in immigration detention centers. (CBS News, 2020).2 The station interviewed a detainee who completed two years of medical experience prior to fleeing Cuba, who stated “the staff at the detention center has not taken the necessary steps to protect everyone inside the facility. Access to soap, hand sanitizer and disinfecting equipment is very limited or non-existent.” Id.
10. The interviewee further highlighted the harmful conditions and inability to social distance. “’Social distancing,’ Remón Pérez said, ‘is impossible,’ noting that she sleeps in a housing area that holds roughly 80 other women, and the bunk beds are less than a meter apart.
2 https://www.cbsnews.com/news/coronavirus-women-ice-custody-louisiana-release-covid-19/

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Their diet consists mainly of carbohydrates like bread and pasta and lacks nutrient-rich foods to boost their immune systems.” Id.
11. Another detainee interviewed by CBS News on this topic elaborated on these conditions. Id. “Seo said the staff has not provided detainees cleaning supplies, despite repeated requests, and social distancing is not being enforced. She has noticed staff working while sick. Id. “Everything that applies to everyone on the outside doesn't apply to us in here,” Seo added. Id. “We are allowed to be 80 [people] grouped together, sneezing, coughing.” Id.
E. Women in Louisiana ICE Detention Facilities Documented the Difficulties of Maintaining Social Distancing in the South Louisiana Detention Center. 12. Award winning news organization, The Intercept, further covered the spread of the
virus in immigration detention, specifically in the South Louisiana Detention Center.3 The article covers improper health procedures being utilized in the centers. ‘They refuse to clean the living areas to protest that we don’t have proper cleaning supplies,’ Morales Diaz said.”4 Furthermore, the article explains the unavoidable crowded conditions of the centers. “[A]t the South Louisiana Processing, detainees are still ‘living almost on top of each other,’ said Ranzola Lamas. Another detainee, Karina Serrano Rodriguez, said the women sleep in bunk beds 3 feet apart. “The guards come in from outside and wear no masks,” Ranzola Lamas said. Interviewee Pino Hidalgo said her dorm houses three women older than 60 — putting them at high-risk of dying if they get Covid19. One has diabetes. “I myself am a cancer survivor,” Pino Hidalgo said. “Nobody is protecting me.”5 “One [soap] bar costs $2 to $3, according to the women. That’s the only way to get enough soap to do regular hand-washing; what’s given out for free is inadequate. “Once a week, we’re
3 https://theintercept.com/2020/03/30/coronavirus-ice-detention/. 4 Id. 5 Id.

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given five bars per dorm of 72 people,” said detainee Maybis Ranzola Lamas. “It’s used up in a day.”6
F. Analogous Recent Research Documents the Spread of COVID-19 in Concentrated Closed Environments: For example, research and journalistic accounts documenting Coronavirus contagion in several US nursing homes, ships, jails, etc.7
1. Recent research in jails and prisons provide analogous support documenting the risks of COVID 19 spread in ICE Louisiana detention facilities.
13. The inability to practice effective social distancing measures in jail and prison settings mirrors the difficulties that would be faced in ICE detention facilities. There are numerous similarities between the two settings. For example, the incredibly high density of populations in prison, the sleeping and housing arrangements place inmates within feet of one another at nearly all times, and the shared medical and washroom facilities (medical rooms, showers, sinks) are common in both settings. Additionally, both settings require an inherent need for staff to interact with prisoners/detainees.8 Such interactions occur during activities such as medical examinations, transfers of detainees to and from facilities, food and supply distribution, counts, discipline, and movement through facility.
14. Recent articles have documented the spread of COVID 19 in jails and prisons. Legal Aid NYC has tracked data from March 25, 2020 through April 3, 2020. Their findings include that
6 Id. 7 https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?campaign_id=9&emc=edit_nn_20200405&instance_id=17362&nl=morningbriefing&regi_id=99481576&segment_id=23916&te=1&user_id=05ebe90ab125dee232da11f74 ea79e86 8 https://www.themarshallproject.org/2020/03/31/why-jails-are-so-important-in-the-fightagainstcoronavirus?utm_source=The+Marshall+Project+Newsletter&utm_campaign=9bca5d77f6EMAIL_CAMPAIGN_2020_04_01_02_48&utm_medium=email&utm_term=0_5e02cdad9d9bca5d77f6-174267665

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previously three out of twenty five persons in jails on Rikers Island were becoming infected, making the rate of infection 1.451%, or 14.51 infections per 1,000 people. However, soon after the rate rose to four out of three imprisoned persons on Rikers Island becoming infected, making the rate of infection 5.41%, or 54.05 infections per 1,000 incarcerated people. The article compared with New York City’s rates, which are some of the highest infection rates in the U.S., at 0.65%, or 6.48 infections per 1,000 people. It also compared with the four out of three U.S. national infection rate of 0.08%, or 0.81 infections per 1,000 people. As of April 6, 20020, the first known death of a Rikers inmate occurred due to COVID-19. 9
15. The U.S. National Library of Medicine published a report demonstrating some of the dynamics of jail and prison populations’ vulnerability to COVID 19 spread and contagion. The report covered chronic medical conditions in U.S. adults with incarceration history. Among the discoveries, is the report that aging prisoners are significantly more likely to suffer from chronic health conditions than the general public. Furthermore, the report explains that seniors in prison have more health issues that their younger counterparts on the outside. They suffer more often from chronic health conditions such as hypertension and diabetes, and they’re more likely to have limited mobility and increased mental health issues
16. The report also discussed the health of America’s aging prison population stating that the growing average age of the American prison population. The percentage of people in state prisons who are fifty-five and older more than tripled between 2000 and 2016, a Marshall Project analysis of data from the National Corrections Reporting Program found.10 Nearly 150,000 people incarcerated in state correctional facilities were 55 or older in 2016, the most recent year the study
9 https://www.pix11.com/news/coronavirus/rikers-island-inmate-dies-of-coronavirus 10 https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-populationis-so-vulnerable-to-covid-19

Case 1:19-cv-01593-JEB Document 65-9 Filed 04/08/20 Page 7 of 15
was available. 11 For the first time, older adults make up a larger share of the state prison population than people from eighteen to twenty-four. Similarly, eleven percent of the federal prison population—more than 20,000 people—are fifty-six or older, according to Bureau of Prisons data, which is collected separately from the state prisoner data.12
2. Cruise Ships Experiencing COVID-19 Contagion Provide an Analogy to Imminent COVID19 Spread in Louisiana ICE Detention Facilities. 17. Reports have also presented that a high percentage of aging cruise participants present
similar health concerns to those detainees who also represent “at risk” populations due to their health ailments. Those settings also reflect an inability to effectively social distance and are representative of the difficulties ICE detention facilities will also face. Such settings similarly involve shared spaces designated for eating, recreation, and bathrooms. They also similarly involve a high density of population and close quarters. However, cruise ships represent a facility that is actually better equipped than detention centers to handle social distancing regulations. Cruise ships can house two to four people in an isolated room vs. over seventy-person communal sleeping areas in detention centers. Nonetheless, inherent interaction between staff and guests is similar to the inherent need for guards to interact with detainees in the course of executing their duties.
3. Recent Scholarship and Journalistic Accounts Provide Evidence Regarding COVID19 Spread in Cruise Ship Environments.
11 https://www.icpsr.umich.edu/icpsrweb/NACJD/studies/37021 12 https://www.bop.gov/about/statistics/statistics_inmate_age.jsp

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18. The CDC13, WHO14, and State Department15 have all advised against cruise ship travel due to heightened risk of infection. The cruise-ship outbreaks reveal a great deal about COVID19.16 “Cruise ships are like an ideal experiment of a closed population. You know exactly who is there and at risk and you can measure everyone,” says John Ioannidis, an epidemiologist at Stanford University in California. For example, on the Diamond Princess cruise ship, individuals were quarantined on February 3rd, 2020. Out of 3,711 passengers and crew, over 700 persons were infected by February 20th, 2020. On that date, this ship accounted for more than 50% of all reported infections in the world, outside of China17At least 25 other cruise ships have confirmed COVID19 cases
19. From these figures and studies, the estimated infection and case fatality ratio for COVID-19 using age-adjusted data from the outbreak on the Diamond Princess cruise ship. By February 20th, 2020, eighteen percent of all infected people on the (Diamond Princess) ship had no symptoms18 The CDC Reported on March 26th, 2020 that COVID-19 Outbreaks on Cruise Ships. Cruise ships are often settings for outbreaks of infectious diseases because of their closed environment and contact between travelers from many countries. More than 800 cases of laboratory-confirmed COVID-19 cases occurred during outbreaks on three cruise ship voyages, and cases linked to several additional cruises have been reported across the United States. Transmission occurred across multiple voyages from ship to ship by crew members; both crew
13 https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship 14 https://www.who.int/emergencies/diseases/novel-coronavirus-2019/travel-advice 15 https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelers-withspecial-considerations/cruise-ship-passengers.html 16 https://www.nature.com/articles/d41586-020-00885-w 17 https://www.theguardian.com/world/live/2020/feb/20/coronavirus-live-updates-diamondprincess-cruise-ship-japan-deaths-latest-news-china-infections 18 https://www.medrxiv.org/content/10.1101/2020.03.05.20031773v2

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members and passengers were affected; 10 deaths associated with cruise ships have been reported to date.19
20. Large number of people in confined spaces on cruise ships make onboard tourists prone to infectious diseases such as the coronavirus. In 2019 alone, the US Centers for Disease Control and Prevention (CDC) reported ten outbreaks on cruise ships.20 Reports have stated, “[Y]ou’ve got passengers and crew members from different parts of the world mixing intimately and intensely for a short period of time…They’ve all got varying levels of immunity and so that does set things up for an infection outbreak…They are in shared spaces like swimming pools, spas, dining rooms and auditoriums.”21
4. Other Relevant Updated Data 21. Other recent reports of data demonstrate why jails are so important in the fight against Coronavirus.22 This data demonstrates that o preventing spread of virus made more difficult in jails, the necessary social distancing is near impossible in dormitories with rows of beds located in common rooms, groups of people in cells, and communal showers and bathrooms which serve dozens. These dangers are escalated when the jails are overcrowded, filthy, or understaffed. 22. Physical contact (in jails) between staff and incarcerated is often unavoidable: officers fingerprint, handcuff and supervise prisoners, as well as escort them to court and drive them to
19 https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm?s_cid=mm6912e3_w 20 https://www.ship-technology.com/features/coronavirus-outbreak-2019-ncov-impact-cruiseoperators-measures-tourism/ 21 https://www.bbc.com/news/world-asia-51470603? 22 https://www.themarshallproject.org/2020/03/31/why-jails-are-so-important-in-the-fightagainstcoronavirus?utm_source=The+Marshall+Project+Newsletter&utm_campaign=9bca5d77f6EMAIL_CAMPAIGN_2020_04_01_02_48&utm_medium=email&utm_term=0_5e02cdad9d9bca5d77f6-174267665

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medical appointments. Additional contact comes through visitors, volunteers, contractors, and lawyers.
23. The CDC’s “Guidance for Correction and Detention Facilities” outlines reasons for increased guidelines in prisons, jails, and detention facilities.23 Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced. There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
24. Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions. Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19. The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
23 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html

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25. ICE has also provided Guidance on COVID-19, but it is questionable whether the parameters of this guidance are currently being met.24 ICE instituted screening guidance for new detainees who arrive at facilities to identify those who meet CDC’s criteria for epidemiologic risk of exposure to COVID-19. IHSC isolates detainees with fever and/or respiratory symptoms who meet these criteria and observe them for a specified time period. IHSC staff consult with the local health department, as appropriate, to assess the need for testing. Detainees without fever or respiratory symptoms who meet epidemiologic risk criteria are monitored for 14 days.
26. Detainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 are housed separately from the general population. ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as COVID-19. This prevents the spread of the agent to other individuals and the general public. ICE transports individuals with moderate to severe symptoms, or those who require higher levels of care or monitoring, to appropriate hospitals with expertise in high-risk care. Detainees who do not have fever or symptoms, but meet CDC criteria for epidemiologic risk, are housed separately in a single cell, or as a group, depending on available space.
27. In addition to providing detainees with soap for the shower and hand soap for sink handwashing, ICE provides alcohol-based sanitizer in visitor entrances, exits, waiting areas and to staff and detainees in the secure setting whenever possible. ICE also provides soap and paper towels that are present in bathrooms and work areas within the facilities. Everyday cleaning supplies such as soap dispensers and paper towels are routinely checked and are available for use. Detainees are encouraged to communicate with local staff when additional hygiene supplies or
24 https://www.ice.gov/coronavirus

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products are needed. Detention facilities should maximize social distancing as much as practicable. This may include staggered meals and recreation times in order to limit the number of detainees gathered together. All community service projects are suspended until further notice.
27. Finally, it is crucial to note that across the United States, there is a severe shortage of available coronavirus tests and equipment. For example, Bloomberg news reported that “[a] randomized survey of 323 hospitals conducted by the U.S. Department of Health and Human Services Office of the Inspector General and published Friday found that many faced severe shortages of testing supplies and frequently waited a week or longer for results,” adding that “[t]hose issues, the survey found, further strained already scarce resources like hospital beds and personal protective equipment.”25
G. Conclusions 28. Based on the similarities that NOLA ICE Detention Centers share with current hotbeds of COVID-19 infection, such as jails, prisons, and cruise ships, it can be expected that Louisiana ICE detention facilities will experience alarmingly high rates of COVID-19 transmission among inmates and staff similar to the high infection rates present in those similar facilities aforementioned, mirroring the situation in immigration detention centers.
References Cited in Text  BBC News, “Coronavirus: Are cruise ships really ‘floating Petri dishes’?,” available at https://www.bbc.com/news/world-asia-51470603?, (last accessed Apr. 7, 2020).  Bloomberg News, “U.S. Laps Face Crisis After Crisis Despite Improvements in Testing,” available at https://www.bloomberg.com/news/articles/2020-04-07/coronavirus-testingaccuracy-and-availability-shortages-remain, (last accessed Apr. 7, 2020).
25 https://www.bloomberg.com/news/articles/2020-04-07/coronavirus-testing-accuracy-andavailability-shortages-remain

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 CBS News, 2020, “Don't let us die:” Women in ICE custody plead for release amid coronavirus pandemic, available at https://www.cbsnews.com/news/coronavirus-womenice-custody-louisiana-release-covid-19/, (last accessed Apr. 7, 2020).
 Center for Disease Control, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html, (last accessed Apr. 7, 2020).
 Center for Disease Control, Public Health Responses to COVID-19 Outbreaks on Cruise Ships — Worldwide, February–March 2020, available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm?s_cid=mm6912e3_w, (last accessed Apr. 7, 2020).
 Center for Disease Control, Travel Notices, COVID-19 and Cruise Ships, available at https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship, (last accessed Apr. 7, 2020).
 Federal Bureau of Prisons, Statistics by Inmate Age, available at https://www.bop.gov/about/statistics/statistics_inmate_age.jsp, (last accessed Apr. 7, 2020).
 The Guardian, “Cruise ship accounts for more than half of virus cases outside China – as it happened,” available at https://www.theguardian.com/world/live/2020/feb/20/coronavirus-live-updates-diamondprincess-cruise-ship-japan-deaths-latest-news-china-infections, (last accessed Apr. 7, 2020)
 The Intercept, “WOMEN IN ICE DETENTION, FEARING CORONAVIRUS, MAKE VIDEO TO PROTEST UNSAFE CONDITIONS,” available at https://theintercept.com/2020/03/30/coronavirus-ice-detention/, (last accessed Apr. 7, 2020).
 The Marshall Project, “This Chart Shows Why the Prison Population is So Vulnerable to COVID-19,” available at https://www.themarshallproject.org/2020/03/19/this-chartshows-why-the-prison-population-is-so-vulnerable-to-covid-19, (last accessed Apr. 7, 2020).
 The Marshall Project, “Why Jails Are So Important in the Fight Against Coronavirus,” available at https://www.themarshallproject.org/2020/03/31/why-jails-are-so-importantin-the-fight-againstcoronavirus?utm_source=The+Marshall+Project+Newsletter&utm_campaign=9bca5d77f 6EMAIL_CAMPAIGN_2020_04_01_02_48&utm_medium=email&utm_term=0_5e02cda d9d-9bca5d77f6-174267665, (last accessed Apr. 7, 2020).

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 medRxiv (online archive of complete but unpublished manuscripts in the medical, clinical, and related health sciences), “Estimating the infection and case fatality ratio for COVID-19 using age-adjusted data from the outbreak on the Diamond Princess cruise ship,” available at https://www.medrxiv.org/content/10.1101/2020.03.05.20031773v2, (last accessed Apr. 7, 2020).
 National Corrections Reporting Program, 1991-2016: Selected Variables (ICPSR 37021), available at https://www.icpsr.umich.edu/icpsrweb/NACJD/studies/37021, (last accessed Apr. 7, 2020).
 Nature (Scientific Journal), What the Cruise-Ship Outbreaks Reveal about COVID-19, available at https://www.nature.com/articles/d41586-020-00885-w, (last accessed Apr. 7, 2020).
 New York Times, Coronavirus in the U.S.: Latest Map and Case Count, available at https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?campaign_id=9&emc=edit_nn_20200405&instance_id=17362&nl=morningbriefing&regi_id=99481576&segment_id=23916&te=1&user_id=05ebe90ab125dee232d a11f74ea79e86, (last accessed Apr. 7, 2020).
 PIX 11 News, Rikers Island Inmate Dies of Coronavirus, available at https://www.pix11.com/news/coronavirus/rikers-island-inmate-dies-of-coronavirus, (last accessed Apr. 7, 2020).
 Ship Technology, “Cautious sails: Coronavirus (Covid-19) measures and impact on the cruise industry,” available at https://www.ship-technology.com/features/coronavirusoutbreak-2019-ncov-impact-cruise-operators-measures-tourism/, (last accessed Apr. 7, 2020).
 U.S. Department of State, International Travel – Travelers with Special Considerations – Cruise Ship Passengers, available at https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelers-withspecial-considerations/cruise-ship-passengers.html, (last accessed Apr. 7, 2020).
 U.S. Immigration and Customs Enforcement, 2020, ICE Guidance on COVID-19, available at https://www.ice.gov/coronavirus, (last accessed Apr. 7, 2020).
 World Health Organization, COVID-19 Travel Advice, available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/travel-advice, (last accessed Apr. 7, 2020).
Additional Contributing Sources
 U.S. Commission on International Religious Freedom, 2005, Report on Asylum Seekers in Expedited Removal,” Vol. I at 22 (last visited Apr. 7, 2020) https://www.uscirf.gov/reports-briefs/special-reports/report-asylum-seekers-in-expeditedremoval.

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Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 7h day of April at New Orleans, Louisiana, United States.
_______________________________________ Dr. Peter Scharf Louisiana State University Health Sciences Center 2020 Gravier Street, 3rd Floor New Orleans, Louisiana pschar@lsuhsc.edu (504) 509-9800

 Case 1:19-cv-01593-JEB Document 66 Filed 04/09/20 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

Kevin K. McAleenan, et al.,

)

)

Defendants.

)

No. 19-cv-1593 (JEB)

DEFENDANTS’ SUPPLEMENTAL SUBMISSION IN SUPPORT OF OPPOSITION TO PRELIMINARY INJUNCTION MOTION

Defendants submit the following “Updated Guidance: COVID-19 Detained Docket

Review,” dated April 4, 2020, in further support of their opposition to Plaintiffs’ motion for

preliminary injunction.

Respectfully submitted,
TIMOTHY J. SHEA, D.C. Bar #437437 United States Attorney
DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief
By: _____/s/_______________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov
Counsel for Defendants

Case 1:19-cv-01593-JEB Document 66-1 Filed 04/09/20 Page 1 of 3
From: To: Cc:
Subject: Date:
Please see the updated guidance below. The previous version of this guidance is

This message is sent from Peter B. Berg, (a)Assistant Director, Field Operations

To:

Field Office Directors and Deputy Field Office Directors

Subject:

COVID-19 Detained Docket Review

Background:

U.S. Immigration and Customs Enforcement (ICE) has taken a number of significant and proactive measures in response to the Coronavims Disease 2019 (COVID-19) pandemic, in order to mitigate the spread of COVID-19 to aliens detained in its custody, its workforce, and stakeholders at its detention facilities. As more becomes known about the vims, ERO will continue to update its practices and guidance in this regard. General ICE COVID-19 guidance is available here and will be updated and supplemented on an ongoing basis.

On March 18, 2020, you were directed to review the cases of aliens detained in your area of responsibility who were over the age of 70 or pregnant to detennine whether continued detention was appropriate. The Centers for Disease Contrnl and Prevention (CDC) has developed a list of categories of individuals identified as potentially being at higher-risk for serious illness from COVID-19. Expanding on that list, ERO has identified the following categories of cases that should be reviewed to re-assess custody:

• Pregnant detainees or those having delivered in the last two weeks • Detainees over 60 years old • Detainees of any age having chronic illnesses which would make them
immune-compromised, including but not limited to: o Blood Disorders o Chronic Kidney Disease o Compromised immune system (e.g., ongoing treatment such as chemotherapy or radiation, received an organ or bone manow transplant, taking high doses of co1iicosteroids or other immunosuppressant medications) o Endocrine disorders

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Metabolic disorders Heart disease Lung disease Neurological and neurologic and neurodevelopment conditions
As part of your ongoing application of the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (available here), please identify all cases within your AOR that meet any of the criteria above and validate that list with assistance from IHSC or your Field Medical Coordinator to ensure the conditions listed are still present and do result in the detainee potentially having a higher risk for serious illness from COVID-19. After identifying a case as meeting any of the above criteria, you should review the case to determine whether continued detention remains appropriate in light of the COVID-19 pandemic.
The presence of one of the factors listed above should be considered a significant discretionary factor weighing in favor of release. To be clear, however, it may not always be determinative. Field offices must remain cognizant of the requirements of mandatory detention. Section 236(c) of the Immigration and Nationality Act (INA) mandates the detention of certain categories of criminal and terrorist aliens during the pendency of removal proceedings. Such aliens may not be released in the exercise of discretion during the pendency of removal proceedings even if potentially higher-risk for serious illness from COVID-19. INA § 236(c); 8 C.F.R. § 236.1(c)(1)(i). Such aliens may only be released following a final order issued by an immigration judge, the Board of Immigration Appeals, or a federal court granting the alien relief, dismissing proceedings, or terminating proceedings. Similarly, pursuant to section 241(a)(2), certain criminal and terrorist aliens subject to a final order of removal may not be released during the 90-day removal period even if potentially higher-risk for serious illness from COVID-19. INA § 241(a)(2). For alien’s subject to discretionary detention under section 236(a), please remember that release is prohibited, even if the alien is potentially higher-risk for serious illness from COVID-19, if such release would pose a danger to property or persons. 8 C.F.R. § 236.1(c)(8).
When reviewing cases of alien’s subject to discretionary detention under 236(a), the following must be completed:
Cases involving any arrests or convictions for any crimes that involve risk to the public regardless of the date of arrest or conviction must be reviewed and approved by a Deputy Field Office Director (DFOD) or higher before a determination is made to release.
Examples of crimes that involve a risk to the public include any crime that: involves any form of violence, driving while intoxicated, threatening behaviors, terroristic threats, stalking, domestic violence, harm to a child, or any form of assault or battery. This list is not intended to be

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comprehensive. If there is any doubt whether a crime involves risk to the public, consult with your Office of the Principal Legal Advisor (OPLA) field location and your respective Deputy Assistant Director for Domestic Operations before a custody redetermination is completed. You may consider the age of an arrest or conviction as a mitigating or an aggravating factor, but the age of an arrest or a conviction does not automatically outweigh public safety concerns.
With regard to arriving aliens and certain other aliens eligible for consideration of parole from custody, under current circumstances and absent significant adverse factors, the fact that an alien is potentially higher-risk for serious illness from COVID-19, may form the basis for a determination that “continued detention is not in the public interest,” justify release under 8 C.F.R. § 212.5(b) (5).
For other aliens for whom there is discretion to release, field offices remain responsible for articulating individualized custody determinations, taking into consideration the totality of the circumstances presented in the case. The fact that an alien is potentially higher-risk for serious illness from COVID-19 should be considered a factor weighing in favor of release. You may also consider alternatives to detention consistent with ICE ATD policies, if ATD is determined to sufficiently mitigate the risk of flight.
Any releases attributed to reviews of COVID-19 susceptibility shall be documented in the ENFORCE Alien Removal Module (EARM) under Special Class - COVID-19 Chronic Care Release. As previously communicated, these individuals should be placed on ATD if possible.
Please contact your local OPLA field location should you have any questions or concerns regarding your authority to release in any individual case.
For any questions on this guidance, please contact your respective Deputy Assistant Director for Domestic Operations.
Limitation on the Applicability of this Guidance. This message is intended to provide internal guidance to the operational components of U.S. Immigration and Customs Enforcement. It does not, is not intended to, shall not be construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any person in any matter, civil or criminal.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

Kevin K. McAleenan, et al.,

)

)

Defendants.

)

No. 19-cv-1593 (JEB)

DEFENDANTS’ NOTICE IN RESPONSE TO COURT ORDER

Pursuant to the Court’s minute order dated April 9, 2020, Defendants provide notice

regarding the Mons Class Members who have been released from a facility within the New

Orleans Field Office since April 4, 2020 pursuant to the individualized review of the specific

COVID-19 risk factors. As stated in the accompanying declaration of John Hartnett, 38

individuals within the Mons class have been released based on the referenced risk factors since

April 4, 2020. The accompanying Hartnett declaration also explains the limitations faced by

Immigrations Customs and Enforcement (“ICE”) in collecting this information based on the

manner in which data is maintained and searchable on the relevant ICE systems.

Respectfully submitted,

TIMOTHY J. SHEA, D.C. Bar #437437 United States Attorney

DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief

By: _____/s/_______________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528

Case 1:19-cv-01593-JEB Document 67 Filed 04/20/20 Page 2 of 2 Jeremy.Simon@usdoj.gov Counsel for Defendants
2

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 Case 1:19-cv-01593-JEB Document 68 Filed 04/21/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Chad WOLF, et al.

)

)

Defendants/Respondents.

)

__________________________________________)

NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY, ATTORNEY DECLARATIONS AND CONFIRMED COVID-19 REPORTS

The Plaintiffs hereby provide notice of supplemental authority relating to their motion for

a Preliminary Injunction (Memo. Op., No. 19-1593 (JEB) (Sep. 5, 2019)) in this cause.

In a recent decision, a federal court in California addressed similar claims by vulnerable

individuals in ICE detention. See Fraihat v. ICE, No. EDCV 19-1546 JGB (SHK) (Dist. Ct. Cal.)

(Apr. 20, 2020) (Docket No. 132) (Exhibit 1). The preliminary injunction requested that ICE be

required to promptly assess medically vulnerable people for COVID-19 risk factors and either

immediately implement medically necessary precautions consistent with CDC standards of care,

or release them. If ICE could not or would not take medically necessary precautions, the motion

requested immediate release of the medically vulnerable. In his order, the Court ruled ICE must

conduct new assessments of every individual at heightened risk of contracting Covid-19 under

their custody and make a new release determination, regardless of whether or not the individual

has already applied for parole, habeas, or other forms of relief.

In addition, pursuant to the Court’s Minute Order dated April 2, 2020, the Plaintiffs submit

the attached attorney declarations addressing ICE’s failure to fast-track parole requests for re-

Case 1:19-cv-01593-JEB Document 68 Filed 04/21/20 Page 2 of 4
assessment nor independently flagging for re-assessment individuals’ COVID-19 vulnerabilities. See Declaration of Rose Murray, April 20, 2020 (Exhibit “2”); Declaration of Joseph Giardina, April 20, 2020 (Exhibit “3”).
Finally, the Plaintiffs also provide the Court with the most updated number of confirmed cases of COVID-19 as of April 20, 2020, among those in ICE custody under the New Orleans ICE Field Office:
 8 detainees in Adams County Correctional Center (Natchez, MS)  1 detainee in Catahoula Correctional Center (Harrisonburg, LA)  2 detainees in LaSalle Correctional Center (Olla, LA)  1 detainee in LaSalle ICE Processing Center (Jena, LA)  9 detainees in Pine Prairie ICE Processing Center (Pine Prairie, LA)  20 detainees in Richwood Correctional Center (Monroe, LA)  2 detainees in River Correctional Center (Ferriday, LA)  1 detainee in Winn Correctional Center (Winnfield, LA)
In addition, there have been 13 confirmed cases of COVID-19 among ICE employees working in ICE Alexandria Staging Facility (Alexandria, LA). See https://www.ice.gov/coronavirus.
Sincerely,
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Case 1:19-cv-01593-JEB Document 68 Filed 04/21/20 Page 3 of 4

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

Case 1:19-cv-01593-JEB Document 68 Filed 04/21/20 Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that, on April 21, 2020, I electronically filed the attached NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY, ATTORNEY DECLARATIONS AND CONFIRMED COVID-19 REPORTS with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

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EXHIBIT 1

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 19-1546 JGB (SHKx)

Date April 20, 2020

Title Faour Abdallah Fraihat, et al. v. U.S. Immigration and Customs Enforcement, et al.

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings:

Order (1) GRANTING Motions to File Amicus Briefs (Dkt. Nos. 117, 119); (2) GRANTING Plaintiffs’ Emergency Motion to Certify Subclass (Dkt. No. 83); (3) GRANTING Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 81); and DENYING AS MOOT Plaintiffs’ Ex Parte Application to File Supplement (Dkt. No. 127) (IN CHAMBERS)

Before the Court are: (1) two motions to file amicus briefs, (Dkt. Nos. 117, 119); (2) Plaintiffs’ emergency motion to certify subclass, (“Class Certification Motion,” Dkt. No. 83); (3) Plaintiffs’ motion for preliminary injunction to implement protections against COVID-19, (“PI Motion,” Dkt. No. 81); and (4) Plaintiffs’ ex parte application for leave to file post-hearing briefing and response, (Dkt. No. 127). The Court held a telephonic hearing on the first three matters on April 13, 2020. After considering the papers filed in support of and in opposition to the matters, as well as the oral argument of the parties, the Court GRANTS motions to file amicus briefs, GRANTS the Class Certification Motion, GRANTS the PI Motion, and DENIES AS MOOT the ex parte application.

I. BACKGROUND
The country is in the midst of an unprecedented pandemic, as a result of which hundreds of millions of people have been urged to shelter in place or stay at home. However, some of us are sheltering in more fortunate circumstances than others. The central question presented by Plaintiffs’ Motions is whether the conditions in which Immigration and Customs Enforcement

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(“ICE”) detainees are held during the pandemic likely violate the Constitution, and if so, what measures can and should be taken to ensure constitutionally permissible conditions of detention.
A. Procedural Background
On August 19, 2019, Faour Abdallah Fraihat, Marco Montoya Amaya, Raul Alcocer Chavez, Jose Segovia Benitez, Hamida Ali, Melvin Murillo Hernandez, Jimmy Sudney, José Baca Hernández, Edilberto García Guerrero, Martín Muñoz, Luis Manuel Rodriguez Delgadillo, Ruben Darío Mencías Soto, Alex Hernandez, Aristoteles Sanchez Martinez, Sergio Salazar Artaga,1 (“Individual Plaintiffs”), Inland Coalition for Immigrant Justice (“ICIJ”), and Al Otro Lado (“Organizational Plaintiffs) (collectively, “Plaintiffs”) filed a putative class action complaint for declaratory and injunctive relief. (“Complaint,” Dkt. No. 1 ¶¶ 21-126.) The Defendants are U.S. Immigration and Customs Enforcement (“ICE”), U.S. Department of Homeland Security (“DHS”), DHS Acting Secretary Kevin McAleenan, ICE Acting Director Matthew T. Albence, ICE Deputy Director Derek N. Brenner, ICE Enforcement and Removal Operations (“ERO”) Acting Executive Associate Director Timothy S. Robbins, ERO Assistant Director of Custody Management Tae Johnson, ICE Health Service Corps (“IHSC”) Assistant Director Stewart D. Smith, ERO Operations Support Assistant Director Jacki Becker Klopp, and DHS Senior Official Performing Duties of the Deputy Secretary David P. Pekoske (collectively “Defendants”). (Id. ¶¶ 127-36.)
Plaintiffs are immigration detainees with a range of serious health conditions and two organizations that provide services to detainees. (Id. at ¶¶ 21-126.) Together they claim Defendants have failed to ensure minimum lawful conditions of confinement at immigration detention facilities across the country. (Id. ¶¶ 1-13.) Plaintiffs assert four claims: (1) Due Process Clause of the Fifth Amendment - failure to monitor and prevent “Challenged Practices”2 (all Plaintiffs and the Class against all Defendants); (2) Due Process Clause of the Fifth Amendment - failure to monitor and prevent “Segregation Practices” (Organizational Plaintiffs, Segregation Plaintiffs and Segregation Subclass against all Defendants); (3) Due Process Clause of the Fifth Amendment - failure to monitor and prevent “Disability-Related Practices” that constitute punishment (Organizational Plaintiffs, Disability Plaintiffs, and Disability Subclass against all Defendants); (4) violation of § 504 of the Rehabilitation Act (“Rehab Act”), 29 U.S.C. § 794 (Organizational Plaintiffs, Disability Plaintiffs, and Disability Subclass against DHS, ICE, and IHSC). (Compl.) On April 15, 2020 the Court Denied Defendants’ motion to dismiss, sever, or transfer venue. (MTD Order, Dkt. No. 126.)

1 The Court will refer to Individual Plaintiffs by their last names, unless Plaintiffs have the same last name, in which case the Court will use full names. The remainder of the Order will omit diacritical marks.
2 The Court provides Plaintiffs’ definitions of the Class and Subclasses, and of the Challenged Practices, Segregation Practices, and Disability Practices in its MTD Order.

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On March 25, 2020, Plaintiffs filed the Class Certification and PI Motions. (Class Cert. Mot.; PI Mot.) Plaintiffs included in support of the Class Certification Motion the following documents:
 Declaration of William F. Alderman, (“Alderman Declaration,” Dkt. No. 83-2 (attaching Exhibit A));
 Declaration of Michael W. Johnson, (“Johnson Declaration,” Dkt. No. 83-2);  Declaration of Stuart Seaborn, (“Seaborn Declaration,” Dkt. No. 83-4 (attaching
Exhibits A to J));  Declaration of Lisa Graybill, (“Graybill Declaration,” Dkt. No. 83-5);  Declaration of Timothy P. Fox, (“Fox Declaration,” Dkt. No. 83-6);  Declaration of Alex Hernandez, (“Hernandez Declaration,” Dkt. No. 83-7);  Declaration of Aristoteles Sanchez, (“Sanchez Declaration,” Dkt. No. 83-8);  Declaration of Faour Abdallah Fraihat, (“Fraihat Declaration,” Dkt. No. 83-9);  Declaration of Jimmy Sudney, (“Sudney Declaration,” Dkt. No. 83-10); and  Declaration of Martin Munoz, (“Munoz Declaration,” Dkt. No. 83-11).
In support of the PI Motion, Plaintiffs filed the following supporting documents:
 Declaration of Thomas Ragland, (“Ragland Declaration,” Dkt. No. 81-2);  Declaration of Mikhail Solomonov, (“Solomonov Declaration,” Dkt. No. 81-3);  Declaration of Maureen A. Sweeny, (“Sweeny Declaration,” Dkt. Nos. 81-4, 89
(attaching Exhibit A));  Declaration of Linda Corchado, (“Corchado Declaration,” Dkt. No. 81-5);  Declaration of Laura G. Rivera, (“Rivera Declaration,” Dkt. No. 81-6);  Declaration of Keren Zwick, (“Zwick Declaration,” Dkt. No. 81-7);  Declaration of Jamie Meyer, (“Meyer Declaration,” Dkt. Nos. 81-8, 90 (attaching
Exhibit A));  Declaration of Francis L. Conlin, (“Conlin Declaration,” Dkt. No. 81-9);  Declaration of Elissa Steglich, (“Steglich Declaration,” Dkt. No. 81-10);  Declaration of Homer Venters, (“Venters Declaration,” Dkt. No. 81-11 (attaching
Exhibit A));  Declaration of Dr. Carlos Franco-Paredes, (“Paredes Declaration,” Dkt. Nos. 81-
12, 91 (attaching Exhibit A));  Declaration of Anne Rios, (“Rios Declaration,” Dkt No. 81-13);  Declaration of Andrew Lorenzen-Strait, (“Lorenzen-Strait Declaration,” Dkt.
Nos. 81-14, 92 (attaching Exhibit A)); and  Declaration of Andrea Saenz, (“Saenz Declaration,” Dkt. No. 81-15 (attaching
Exhibit A)).
Defendants opposed the Class Certification and PI Motions on April 3, 2020. (“Class Certification Opposition,” Dkt. No. 94; “PI Opposition,” Dkt. No. 95.) In support of the Oppositions, Defendants included the Declaration of Lindsay M. Vick, (“Vick Declaration,” Dkt. No. 95-1, 110 (attaching Exhibits 1 to 13, including declarations of Dr. Ada Rivera and

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several Declarations of Captain Jennifer Moon).) Defendants also included evidentiary objections to several of Plaintiffs’ declarations. (See Dkt. Nos. 95-15 to 95-25.)
Plaintiffs replied on April 9, 2020, (“Class Certification Reply,” Dkt. No. 111; “PI Reply,” Dkt. No. 113), and responded to Defendants’ evidentiary objections, (Dkt. Nos. 97-107). In support of their Replies, Plaintiffs included the declaration of Elizabeth Jordan, (“Jordan Declaration II,” Dkt. No 113-1 (attaching Exhibits A to G, and Appendix 1)), and the supplemental declaration of Homer Venters, (“Venters Declaration II,” Dkt. No. 113-2).
On April 9, 2020, the Court also received two motions to file amicus briefs. (Dkt. No. 117, 119.) The Court GRANTS the motions and accepts as filed3 the amicus briefs of : (1) Casa de Paz, Church World Service – Jersey City, Clergy & Laity United for Economic Justice, Detention Watch Network, El Refugio, First Friends of New Jersey & New York, and Freedom for Immigrants (“Casa de Paz, et al. Amicus,” Dkt. No. 117-2); and (2) Public Health Experts (“Public Health Amicus,” Dkt. No. 119-2).
On April 10, 2020, Defendants filed a supplement to their Opposition, (“Defendants’ Supplement,” Dkt. No. 121.) Defendants attached the following documents to the Supplement:
 Declaration of Gabriel Valdez, (“Valdez Declaration,” Dkt. No. 121-1);  Declaration of Michael Nelson, (“Nelson Declaration,” Dkt. No. 121-2);  Declaration of John Bretz, (“Brez Declaration,” Dkt. No. 121-3);  COVID-19 Detained Docket Review Guidance, dated April 4, 2020 (April 4
Docket Review Guidance,” Dkt. No 121-4).
Defendants also attached several decisions from district courts, and a recently filed case, regarding the release of immigration detainees or prisoners. (Dkt. Nos. 121-5 to 121-11.) On April 12, 2020, Plaintiffs submitted a supplement. (“Jordan Declaration III,” Dkt. No. 122 (attaching Exhibits A to D).) On the morning of the April 13, 2020 hearing, Defendants submitted supplemented their filing with a recent ICE policy document. (Dkt. No. 124-1.)
After the hearing, Defendants filed a further factual supplement at the Court’s request. (“Holt Declaration,” Dkt. No. 125-1.) Plaintiffs filed an ex parte application to file a response, which Defendants opposed. (Dkt. Nos. 127, 128.) The ex parte application is DENIED AS MOOT

3 At the April 13, 2020 hearing, the Court noted that Defendants could comment on the Amicus Motions by filing a supplement the next day, but Defendants declined to do so. The Court finds the briefs informative, and absent Defendants’ articulation of a sound reason to reject the briefs, the Court exercises its “broad discretion” to allow them. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

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B. Facts4
In this Section the Court summarizes relevant background on COVID-19, the risk posed to immigration detainees, ICE’s systemwide actions and inactions in response to that threat, Plaintiffs’ critique of that response, and the current conditions of confinement at about a dozen facilities nationwide.
1. Risk of COVID-19 Spread in Immigration Detention Facilities
The novel coronavirus known as SARS-CoV-2 causes a disease known as COVID-19, and is a viral pandemic. (Meyers Decl. ¶ 20; Venters Decl. ¶ 5.) As of late March 2020, the outbreak was in its early stages in the United States, though cases had been identified in each state, and infection rates are growing exponentially. (Id. ¶ 6.) As of the drafting of this Order, more persons have tested positive for COVID-19 in the United States than in any other country. More than 41,000 deaths have been reported in the U.S., and many tens of thousands more are expected in the coming weeks.
Doctors believe the virus is transmitted from person to person by respiratory droplets and by touching surfaces, and have found transmission occurs at close quarters of 3-6 feet. (Meyers Decl. ¶ 20.) Currently there is no vaccine available, and everyone is at risk of infection. (Id.) Serious illness and death from COVID-19 is most common among individuals with underlying health conditions like heart, lung, or liver disease, diabetes, or old age. (Id. ¶ 21; Franco-Paredes Decl. at 1.) Available data show a fatality rate about 15% among these high-risk groups. (Id. at 2). Individuals who survive may experience permanent loss of respiratory capacity, heart conditions, kidney damage, and other complications. (Id. at 4-5.)
The risks of infectious disease in prisons and jails are significantly higher than outside for several reasons. (Meyer Decl.) First, social distancing to prevent the spread of the disease by respiratory droplets is often impossible in “congregate settings,” due to poor ventilation and inadequate space, and jails and prisons often lack access to personal protective equipment like masks, gowns and eye shields. (Id. ¶ 9.) Second, jails and prisons often lack resources for diagnosing and treating infectious disease. (Id. ¶¶ 14-15.) Simple segregation or solitary confinement measures as an outbreak management technique tend to backfire: they result in less

4 The parties have submitted hundreds of pages of documents supporting their respective filings, as well as extensive evidentiary objections and responses. To the extent that the Court relies on objected-to evidence, the objections are overruled. Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198 n.1 (C.D. Cal. 2010). “District courts, though, ‘may give . . . inadmissible evidence some weight . . . [to] prevent[ ] irreparable harm before trial.’” Weride Corp. v. Kun Huan, 2019 WL 1439394, at *5 (N.D. Cal. Apr. 1, 2019) (quoting Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009)). For the purposes of the preliminary injunction, “evidentiary issues ‘properly go to weight rather than admissibility.’” Id. (quoting Go Daddy Operating Co., LLC v. Ghaznavi, 2018 WL 1091257, at *14 (N.D. Cal. Feb. 28, 2018). Thus, the Court takes the objections under advisement in considering the Motions.

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medical attention and increased chances of death. (Id. ¶ 10; see also Venters Decl. ¶ 10 (“[isolated detainees] quickly experience increased psychological distress that manifests in selfharm and suicidality, which requires rapid response and intensive care outside the facility . . .”).) Unless an individual is held in a negative pressure room, his or her respiratory droplets may still flow outwards to the rest of the facility. (Meyers Decl. ¶ 10.) Third, people held in jails and prisons are more likely than others to have chronic underlying health conditions that make them susceptible to infectious disease. (Id. ¶ 13.) Finally, new information about COVID-19 suggests it may be transmissible through shared bathrooms and cell toilets without lids. (Venters Decl. II ¶ 2(a).)
On April 2, 2020, six ICE detainees and five ICE staff at detention facilities had tested positive for COVID-19. That number has dramatically increased. As of the drafting of this Order, ICE reports 124 confirmed detainee cases at 25 facilities around the country and thirty confirmed cases of ICE detention facility staff at many of the same locations.5 Due to shortages in testing nationwide and because asymptomatic individuals may spread the disease, the known cases are likely the “tip of the iceberg.” (Venters Decl. ¶ 7.)
An immigration facility outbreak would also menace the non-detained: a surge in preventable cases would further strain local hospital and healthcare resources. (Id. at 8; Seaborn Decl., Ex. E at 4 (“a detention center with a rapid outbreak could result in multiple detainees— five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period.”).) In the “alternate scenario,” a facility outbreak is averted and a community’s “survival is maximized.” (Id. (also noting that many detention centers are in remote areas with limited access to health facilities).)
2. CDC Guidance and ICE’s Systemwide Response to COVID-19
On March 6, 2020, ICE Health Services Corp (“IHSC”) provided interim guidance to detention facilities. (Venters Decl. ¶ 14.) The ICE website also provides guidance, which is updated periodically. See ICE Guidance on COVID-19, ICE, https://www.ice.gov/covid19. The ICE Guidance purports to incorporate or be consistent with CDC guidance. (Id.)
On March 23, 2020, the CDC issued interim guidance on management of COVID-19 in correctional and detention facilities (“CDC Interim Guidance,” Jordan Decl. III, Ex. D.). The guidance mentions many of the same risks of COVID-19 transmission noted above, and notes several others, including: the inability of detainees to exercise frequent handwashing, restrictions on soap or paper towels, the likelihood of introduction of the disease due to staff ingress and egress and detainee transfers, and limited options for medical isolation. (CDC Interim Guidance at 2.) The CDC Interim Guidance provides recommendations on a wide range of topics,

5 The number of ICE staff at detention facilities does not appear to include individuals such as guards, vendors, or medical service providers who work at those facilities and are not employed by ICE. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus.

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including protocols for medical isolation, quarantines, social distancing, prevention by cleaning and disinfecting, pre-intake screening, and temperature checks. (Id. at 3.) With respect to detainees at higher risk of severe illness from COVID-19, the guidance notes:
 They should not be cohorted with other infected individuals, and if cohorting is unavoidable, “all possible accommodations” should be made to prevent transmission;
 Detained populations have a higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages;
(Id. at 16, 20.) Individuals who are quarantined6 or in medical isolation,7 should be housed, in order of preference, separately in single cells or as a cohort with 6 feet of personal space assigned each individual in all directions. (Id. at 16, 20 (providing six more granular types of preferences based on the type of wall, door, and ventilation).) One of the least desirable quarantine or isolation methods is to house detainees in a cohort, in multi-person cells without solid walls or a solid door, without excellent ventilation, without social distancing, and without an empty cell between occupied cells. (Id.)
After the CDC Interim Guidance was issued, ICE released a second important policy document in the form of Memorandum dated March 27, 2020 (“Action Plan”), which is addressed to detention wardens. (Vick Decl., Ex. 1.) The Action Plan recognizes that the “combination of a dense and highly transient detained population” presents “unique challenges . . . to mitigate the risk of infection.” (Id. at 1.) The Plan applies to ICE-dedicated facilities, but does not apply to “intergovernmental partners and non-dedicated facilities.” (Id. at 1.) The Memorandum confirms that ICE views the IHSC recommendations as “best practices,” not commands or even performance standards, with the further caveat that the “CDC remains the authoritative source.” (Id. at 1, 5 (providing a link to CDC Guidance on COVID-19 in Detention

6 “Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19.” CDC Interim Guidance at 4. The guidance notes it is preferable to quarantine individuals in separate rooms. A group of quarantined individuals held in the same living space is called a “cohort.” Id. at 3.
7 “Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets preestablished clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials . . . .” CDC Interim Guidance at 4. Individuals should be isolated in separate rooms. A group of isolated individuals held in the same living space is also called a “cohort.” Id. at 3.

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Facilities).) The Action Plan includes some, but not all of the CDC policies, and provides advice that sometimes conflicts with the CDC policies.

On April 4, 2020, ICE released docket review guidance, which ordered Field Office Directors (“FODs”) across the country to identify individuals in certain CDC-defined categories for heighted risk of death due to COVID-19, and to make individualized determinations regarding continued custody. (“Docket Review Guidance,” Dkt. No. 121-4.) Per the Docket Review Guidance, vulnerable detainees who are mandatorily detained do not receive any consideration, however. The Docket Review Guidance is described in greater detail in the next Section. See Section I.B.3.

Most recently, on April 10, 2020, ICE Enforcement and Removal Operations (“ERO”) issued COVID-19 Pandemic Response Requirements. (“Pandemic Response Requirements,” Dkt. No. 124-1.) The Pandemic Response Requirements set forth “mandatory requirements” for all facilities housing ICE detainees as well as best practices. (Id. at 3.) Dedicated detention facilities—those housing only ICE detainees—as well as non-dedicated facilities with mixed populations, including local jails, “must” (1) comply with their applicable detention standards and facility contract8; (2) comply with the CDC Interim Guidelines and the March 27, 2020 Action Plan; (3) notify the local FOD and FMC of known or suspected COVID-19 cases; and (4) notify the FOD and FMC “as soon as practicable” of any detainee meeting CDC’s criteria for higher risk of harm, (id. at 5-7). Whereas the April 4, 2020 Docket Review Guidance drew the line for vulnerable individuals at sixty years of age and listed pregnancy as a qualifying condition for release, the Pandemic Response Requirements raise the age to 65 and omit pregnancy.

The Pandemic Response Requirements also state all facilities housing ICE detainees must:

 Instruct staff and detainees to wear cloth face coverings when PPE supply is limited;
 Provide staff and detainees with no cost unlimited access to supplies for hand cleansing, including liquid soap, water, paper towels or dryers, and no-touch receptacles;
 Require all persons in the facility to avoid touching their eyes, nose, or mouth without cleaning their hands first;
 Prohibit sharing of eating utensils, dishes, and cups;
 Prohibit non-essential contact such as handshakes, hugs, and high-fives;
 Staff should clean shared equipment like radios and weapons;
 Where possible, restrict transfers of detained non-ICE populations and facilities

8 The Court observes that different detention standards apply to different facilities. Thus, some facilities will only comply with the legacy Immigration and Naturalization Service 2000 National Detention Standards, whereas others will comply with more recent PerformanceBased National Detention Standards, which came out in 2008 and were revised in 2011 (“PBNDS”). See ICE Detention Standards, https://www.ice.gov/factsheets/facilities-pbnds.

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 “Efforts should be made” to reduce the population to approximately 75% of capacity, to promote social distancing
(Id. at 7-14.) In addition, the Pandemic Response Requirements for the first time acknowledge the CDC’s tiered housing preferences for individuals under medical isolation (e.g. separate single cells with solid walls and door are much preferable to cohorted multi-person cells without solid barriers). (Id. at 15.) The Response Requirements also note that if the number of confirmed cases at a facility exceeds individual isolation spaces, ICE must be promptly notified to arrange transfer.
For additional operational background, Defendants provide the declaration of the Deputy Assistant Director for Clinical Services and Medical Director of IHSC. (Vick Decl., Ex. 2 ¶ 1.) The IHSC Deputy Assistant Director oversees clinical services at the 20 IHSC-staffed facilities, which hold approximately 13,500 detainees. (Id. ¶ 2.) The Deputy Director states that IHSC is following CDC guidance in testing for COVID-19, but does not specify what the guidance calls for. (Id. ¶ 9.) Similarly, she states ICE has a pandemic workforce protection plan and that ICE instituted “applicable parts of the plan” in January 2020, but she does not attach excerpts of the plan, specify what the plan requires, or explain how it will address the needs of medically vulnerable detainees. (Id. ¶ 6.)
ICE appears to be engaging in at least some centralized monitoring of facility conditions, though Defendants do not submit evidence that they are enforcing IHSC or CDC guidelines at all ICE facilities. The best evidence of coordinated pandemic tracking is the ICE website, which is regularly updated with information about reported staff and detainee COVID-19 cases. Second, IHSC Field Medical Coordinators (“FMCs”) receive reports from medical leadership at contract facilities.9 (Id. ¶ 11.) Each facility is supposed to report to FMCs any detainee they identify as “meeting CDC requirements for cohorting monitoring, or isolation.” (Id.) Until April 10, 2020, Defendants did not require facilities to provide ICE with information about which detainees are most vulnerable to severe illness or death from COVID-19. Defendants do not provide information about any independent tracking they conduct with regard to disabled or medically vulnerable individuals before or during the pandemic.
3. Individualized Release Determinations
The number of individuals in ICE custody has slightly decreased since the declaration of a national emergency. As of March 13, 2020, ICE had 35,980 single adults in custody. (Holt Decl. ¶ 13.) More than half of ICE’s average daily population at that time had not been convicted of a criminal offense and had no pending criminal charge. (Seaborn Decl., Ex. F.) A month later, on

9 Further declarations submitted by Defendants clarify that FMCs “oversee” clinical services at Intergovernmental Service Agreement Facilities (“IGSA”), and “ensure” the medical care provided by contractors meets detention standards under the contract. (Vick Decl., Ex. 2 ¶¶ 2-3.) The FMCs “monitor” but do not provide hands-on care, or direct the care. (Id.)

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April 13, 2020, ICE indicated that 31,709 individuals were in its custody, (Holt Decl. ¶ 13), of whom approximately 14,000 have no prior criminal conviction and no pending criminal charges.10
There are a number of tools available to ICE to decrease population density or to release medically vulnerable individuals. ICE may choose to release people on bond or conditional parole, and in the past, has exercised detention authority to release individuals with serious vulnerabilities or medical conditions. (Saenz Decl. ¶ 18.) Under previous Republican and Democratic Administrations, agency policy and practice was to limit detention of noncitizens who are pregnant or nursing, elderly, or suffer from serious physical or mental illness. (Lorenzen-Strait Decl. ¶ 4-7 (noting that this authority was also exercised to release individuals vulnerable to medical harm but not yet ill).) Even individuals required to be detained by statute can be and were released pursuant to ICE guidelines and policies, and statutory and regulatory provisions. (Id. ¶ 2 (citing INA §§ 212(d)(5), 235(b), 236, 241; 8 C.F.R. §§ 1.1(g), 212.5, 235.3, 236.2(b)); Sweeney Decl. ¶¶ 2-5. But see Holt Decl. ¶ 10 (noting ICE’s current policy does not allow the exercise of discretion to release those subject to mandatory detention even if at higher risk for COVID-19).)
In recent years, legal services organizations observed an increase in parole denials by ICE. (Rivera Decl. ¶¶ 14-16; Corchado Decl. ¶ 23.) Since the pandemic, medically vulnerable detainees have had parole requests denied, (Rivera Decl. ¶ 13), pending for weeks without decision, (Corchado Decl. ¶ 13; see also Rios Decl. ¶ 25), or have not been able to secure hearings at all. For example, the Chicago ICE field office indicated it was closed, leaving attorneys and clients uncertain if they would receive a decision. (Zwick Decl. ¶ 34.)
In the absence of prompt system-wide action by ICE to address the threat of COVID-19, dozens of detainees and their counsel filed individual and group habeas petitions for release. Plaintiffs include an appendix of twenty-nine such petitions. (Jordan Declaration II, Appendix 1.) In all but six of the cases the petitioners secured release. (Id.) In many of the cases where release was not secured, the petitioners obtained another form of relief, including a bond hearing or class certification, or their request was denied without prejudice. Defendants, in turn, submit four immigration habeas decisions in which the court did not find a likelihood of success on the merits, one criminal release decision, and one recently filed habeas petition. (Dkt. Nos. 121-5 to 121-11.)
On April 4, 2020, ICE issued Docket Review Guidance to ICE FODs providing for the potential release or use of alternatives to detention for detainees vulnerable to serious illness or death from COVID-19. The Docket Review Guidance notes that on March 18, 2020, FODs were instructed to review the cases of noncitizens over the age of 70 or pregnant to determine whether continued detention was appropriate. (Id. at 1.) The April 4 Docket Review Guidance notes the categories are expanded to include:
 Pregnant detainees or those having delivered in the last two weeks

10 ICE Currently Detained Population, https://www.ice.gov/detention-management.

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 Detainees over 60 years old  Detainees of any age having chronic illnesses which would make them immune-
compromised, including but not limited to o Blood disorders o Chronic kidney disease o Compromised immune system o Endocrine disorders o Metabolic disorders o Heart disease o Lung disease o Neurological and neurologic and neuro development conditions
(Id. at 1-2.) The Docket Review Guidance asks FODs to “please” identify “all cases within your [areas of responsibility] that meet any of the criteria above and validate that list with assistance from IHSC or your [FMC] to ensure the conditions listed are still present and do result in the detainee potentially having a higher risk for serious illness from COVID-19.” (Id. at 2.) The guidance goes on to request FODs to review these cases to determine whether ongoing detention is appropriate, but notes that presence of a risk factor “may not always be determinative.” (Id.) The guidance does not acknowledge that individuals who are detained under 8 U.S.C. § 1226(c) may be released, and remarks that even in cases of discretionary detention, an at-risk individual should not be released in cases of potential danger to property or persons. (Id.)
In a supplemental filing ICE notes individualized release determinations began prior to this April 10, 2020 Docket Review Guidance. (Holt Decl. ¶ 10.) Since March 2020, ICE has released 693 individuals using a methodology similar to the Docket Review Guidance. (Holt Decl. ¶ 10.) ICE does not state how many eligible detainees have been identified, and notes that the time needed for each review depends on the complexity of the case. (Id. ¶ 11.)
4. Plaintiffs’ Criticisms of ICE’s Systemwide Action or Inaction
Plaintiffs sharply criticize ICE’s March 6, 2020 guidelines. For example, the guidelines focus on questionnaires, rather than checking for active symptoms of staff, and tend to ignore that COVID-19 has arrived in full force and can be carried by asymptomatic individuals. (Venters Decl. ¶ 10(a).) In addition, the guidelines do not include access to hand sanitizer and use of masks for individuals with a cough; do not include guidance for administrators to plan surge capacity needs; do not provide guidance on when to test patients for COVID-19 other than by reference to the CDC; do not propose identification of individuals with high risk of illness and death from COVID-19; and largely ignore CDC guidelines for social distancing strategies. (Id. ¶ 10(b)-(f).) To the extent ICE envisions use of “isolation rooms,” Plaintiffs contend, most facilities only have 1-4 rooms that fit that definition and so will be quickly overrun. (Id. ¶ 16.)
In their Reply, Plaintiffs argue that even after the March 27, 2020 Action Plan and April 4 Docket Review Guidance, ICE’s systemic response to the COVID-19 pandemic falls short of

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CDC benchmarks. (PI Reply at ;Venters Decl. II.) Dr. Venters notes several discrepancies and gaps in ICE’s global response, including that it:

 Does not require symptomatic detainees be given a mask and placed in medical isolation;
 Does not mandate nose and mouth coverings for those who cannot engage in social distancing;
 Does not present a plan for isolation when the number of people needing to be isolated exceeds existing isolation rooms or cells;
 Does not limit transportation of detainees;
 Does no identify what precautions should be taken to protect people with risk factors in ICE custody;
 Fails to include certain risk factors identified by the CDC and which FODs and their staff may not be aware;
 Delegates medical screening for custody review to FODs and staff who are not medical professionals, and advises them to check with medical professionals only after the fact;
 Does not urgently command risk factor screening measures, but merely requests them, without any timeline;
 Fails to account for the fact that detained populations are 10-15 years more progressed than chronological age;
 Does not ensure risk factors reflect evolving data and science;
 Does not include nationwide surveillance, coordination, or communication measures.

(Venters Decl. ¶¶ 3-4.)

Plaintiffs also argue that ICE systematically fails to track individuals with disabilities and medical vulnerabilities, both before and during the COVID-19 pandemic. In support of this contention, they include an Office of the Inspector General report, which discusses ICE’s Risk Classification Assessment (“RCA”) tool, which was designed to assist with release and custody classification decisions. (“OIG Report,” Jordan Decl., Ex. A.) The OIG Report explains that when ICE Enforcement and Removal Operations (“ERO”) detains a noncitizen, it uses the RCA to generate recommendations for detention or release, including for alternatives to detention, unless the person is mandatorily detained. (Id. at 5-6.)

The OIG Report provides some information on at least one of ICE’s screening mechanisms: it notes that RCA questions on “special vulnerabilities” conflict with ICE’s Performance Based National Detention Standards (“PBNDS”) medical screening guidance. For example, an ICE ERO officer using the RCA tool does not have medical training and might not ask questions in a private setting, whereas the PBNDS call for someone with training—a medical professional or trained detention officer—to conduct the screening. (Id. at 12.) The OIG Report contrasts the PBNDS medical screening questions, which include 31 fields, with the RCA special vulnerabilities “checklist” which includes only yes/no data fields for (as relevant to this case)

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“serious physical illness,” “disabled,” “elderly,” and “pregnant.” (OIG Report, Appendix G, at 29.)
Apart from this limited tool, and any reports provided by facilities to IHSC FMCs regarding detainee health, it appears ICE does not have a centralized screening, let alone tracking, mechanism or procedure to identify medically vulnerable or disabled individuals in its custody during the COVID-19 pandemic. Plaintiffs repeat the refrain from their Complaint that ICE has failed to ensure compliance with detention standards, and this failure extends to COVID-19 protocol compliance. (Compl. ¶¶ 522-537; PI Mot. at 12 (incorporating by reference additional OIG reports, dealing with management and oversight of detainee medical care).)
5. Reported Immigration Detention Facility Conditions
Plaintiffs provide evidence of the recent conditions at fourteen facilities in Alabama, California, Colorado, Georgia, Louisiana, and Texas. Plaintiffs also include anecdotal evidence of conditions in about fifteen additional facilities nationwide. Although the facts are cumulative, the Court summarizes the conditions below, by state and locality, along with any response provide by the government.
a. Etowah County Detention Center (Gadsen, Alabama)
An Etowah County immigration detainee, Hernandez, states that as of March 24, 2020, he had not received formal education about COVID-19, though there was an informative flyer in the dorm, which is in English only. (Hernandez Decl. ¶ 3.) Hernandez had not had his body temperature checked and has not seen other individuals having their temperatures taken. (Id. ¶ 4.) Soap must be purchased at commissary, and Hernandez did not observe officers wearing gloves or masks. (Id. ¶ 4.) New detainees and guards enter the facility regularly. (Id. ¶ 5.) Recently, a transferee reported feeling sick, and went to medical, where he did not have his temperature taken or receive any treatment, but was restricted to his cell. (Id. ¶ 6.) Individuals in Hernandez’s unit demanded the transferee be removed. Two individuals tied nooses around their necks and stepped onto railings of the second floor, threatening suicide unless the facility took preventive action. (Id.) After this incident, detainees in the unit were provided one surgical mask each, and the unit is on lockdown except for two half-hour increments daily. (Id. ¶¶ 6-7.)
Defendants state that Etowah screens each detainee for disabilities upon admission. (Vick Decl., Ex. 11 ¶ 7 (not stating which disabilities are screened, or how many individuals qualify as disabled at Etowah).) Defendants do not state whether Etowah has identified detainees at greater risk for contracting COVID-19, and do not say what measures are being taken to protect those detainees. However, they do note Etowah provides a list of “chronic care” detainees and two detainees over the age of 60. (Id. ¶ 11.) They state that as of April 8, 2020, there are no confirmed COVID-19 cases at Etowah. (Id. ¶ 13(a)-(c); Nelson Decl. ¶ 17(a).) The facility has increased sanitation frequency and supplies, including hand sanitizer, soap, masks, and gloves “readily available” for both staff and detainee use. (Vick Decl., Ex. 11 ¶ 15.)

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An FMC assigned to Etowah reports that he has been informed of Etowah’s COVID-19 protocols, and the facility is conducting intake screenings for COVID-19 symptoms (but not for COVID-19 risk factors), and following ICE and CDC guidance. (See generally Nelson Decl.) Etowah’s population is “within . . . approved capacities.” (Id. ¶ 18.) For group movements, the detainees are reminded to practice social distancing, and are not crowded in holding areas. (Id. ¶ 29.)

b. Adelanto ICE Processing Center (Adelanto, California)

Plaintiffs state that as of March 18, 2020, two dorms in the Adelanto West building were in quarantine or cohorting. (Rios Decl. ¶ 17.) On the morning of March 19, 2020 the Adelanto East building was also quarantined. (Id.) Al Otro Lado observed guards standing in groups in close proximity, and detainees report to the organization that guards did not wear gloves or masks in early to mid March. (Id. ¶ 22.) Detainees clean most of the facility and do not have masks themselves, and report a shortage of cleaning supplies. (Id. ¶ 23.) One Adelanto detainee, a sixty-three-year-old asylum seeker who is not subject to mandatory detention told his attorney on March 20, 2020 that he was confined with about 80 detainees, none of whom appear to be ill, but is residing in close quarters with four other individuals. (Ragland Decl. ¶ 10.) Nurses and doctors had not visited to perform check-ups on the quarantined individuals. (Id.)

Fraihat, who was held at Adelanto until a recent successful habeas petition,11 is fifty-eight and suffers from asthma, among other medical conditions. (Fraihat Decl. ¶¶ 3-4.) As of March 24, 2020, he had not received information about COVID-19 from ICE or Adelanto staff, and noted that soap was not easier to access, despite the outbreak. (Id. ¶ 6.) He stated that social distancing is not possible due to the close quarters. (Id.) He observed newly detained individuals still arrive at the facility, and that he had not had his temperature checked. (Id. ¶ 7; see also Sudney Decl. ¶ 9.) A guard told Fraihat that older individuals are cohorted in a unit that shares a door with a unit for individuals exhibiting COVID-19 symptoms. (Fraihat Decl. ¶ 8.)

Munoz, a sixty-year-old detainee released on April 2, 2020,12 described conditions in the Adelanto dorm for older individuals. (Munoz Decl.) He stated individuals in the unit have not had temperature checks or tests and are not spaced more than six feet apart. (Id. ¶¶ 3-5.) Guards move between units for count, and detainees who deliver meals also circulate between the units, as do the pill pass nurses. (Id. ¶ 8; Fraihat Decl. ¶ 11.) Some guards wear masks and gloves, but older detainees cannot access PPE, to his knowledge. (Id. ¶ 9.) If a detainee had a fever, he or she would have to submit a “kite,” which takes 24 hours to review. (Sudney Decl. ¶ 12.)

Defendants respond that Adelanto screens each detainee for disabilities upon admission. (Vick Decl., Ex. 10 ¶ 7 (not stating which disabilities are screened or how many at Adelanto qualify as disabled).) Defendants also state Adelanto has identified detainees “at greater risk for contracting COVID-19,” (Id. ¶ 11), but do not say what measures are being taken to protect those

11 Fraihat v. Wolf, Case No. 20-00590 (C.D. Cal. Mar. 30, 2020). 12 Munoz v. Wolf, Case No. 20-00625 (C.D. Cal. Apr. 2, 2020).

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detainees, or whether the criteria used conform with CDC guidelines. The facility has increased sanitation frequency and supplies. (Id. ¶ 15.)
Defendants state that as of April 10, 2020, there are no confirmed COVID-19 cases at Adelanto, and no housing units on monitoring for COVID-19. (Id. ¶ 13(a)-(b); Valdez Decl. ¶ 17(a)) The facility has negative pressure rooms onsite and can admit patients to the local hospital when needed. (Valdez Decl. ¶ 16.) Individuals believed to have been exposed to COVID-19, who are asymptomatic, are placed in cohorts with restricted movement. (Id. ¶ 15.) Two suspected cases received negative test results, and two more detainees are now being monitored due to unverifiable travel history and a fever. (Id. ¶ 17 (COVID-19 test pending, in the latter case).) Adelanto’s population is “within . . . approved capacities,” but it is not clear whether cohorted detainees have empty cells between them. (Id. ¶ 18.) Detainees are reminded to practice social distancing during “group movements,” and detainees are not crowded into law libraries, intake areas, or holding rooms. (Id. ¶ 30.)
c. Otay Mesa Detention Center (San Diego, California)
As of March 20, 2020, Al Otro Lado staff observed Otay Mesa employees shaking hands, patting shoulders, and working in close proximity to each other. (Rios Decl. ¶ 9.) Attorneys were allowed to enter the facility for non-contact video teleconference visits, without screening procedures. (Id. ¶ 8.) Visiting attorneys did not have their temperature taken, and were not asked if they had COVID-19 symptoms. (Id.) Telephones were not cleaned prior to the visit. (Id. ¶ 11.) Detainees reported cleaning pods and laundering clothes without protective gear other than gloves. (Id. ¶¶ 15-16.) The week prior, from March 13-17, Al Otro Lado staff could not schedule bond hearings for detainees at Otay Mesa, and as a result, medically vulnerable detainees could not be released. (Rios Decl. ¶ 5.) At least one client was transferred to Houston due to the delays. (Id. ¶ 6.) As of April 17, 2020, ICE reports that eighteen detainees and eight ICE staff at Otay Mesa have tested positive for COVID-19.13
d. Aurora Contract Detention Facility (Aurora, Colorado)
According to the reports of a detainee who was a practicing doctor in New Jersey, with medical licenses in New York and New Jersey, as of March 21, 2020, Aurora had taken few steps to prepare for COVID-19, except distributing information and implementing some screening measures. (Solomonov Decl. ¶ 4.) Up to eighty people live in a dorm with a maximum capacity of eighty-two. (Id. ¶¶ 6, 9.) The dorm consists of four- to eight-person cells, where it is “impossible to stay away from other people.” Detainees do not have access to hand sanitizer, have not been tested for COVID-19, have no access to masks, and have not changed cleaning procedures. (Id. ¶ 7.) Eighty detainees share a single sink with a timed faucet that only stays on for a few seconds and that has low water pressure. (Id. ¶ 8.) According to another detainee’s report, the only guaranteed way to get bar soap is to buy it for $3 at commissary. (Zwick Decl. ¶ 20.)

13 ICE Guidance on Covid-19, https://www.ice.gov/coronavirus.

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Colorado has been under a state of emergency since March 10, 2020. (Solomonov Decl. (attaching Elizabeth Jordan Declaration ¶ 4).) Nevertheless, Aurora added about thirteen new people to the declarant’s dorm from March 18 to 21, 2020, and some purportedly came from jails with symptomatic individuals. (Id. ¶ 6.) The screening procedures for transferees consisted of a questionnaire and temperature check, and the detainees were concerned about asymptomatic individuals gaining admission to their dorm. (Id. ¶ 11.) A lieutenant declared on March 20, 2020 that there were no coronavirus cases in the facility, and told detainees to wash their hands. (Id. ¶ 11.) As of April 20, 2020, two ICE employees or facility staff have tested positive for COVID-19 at Aurora.14
e. Folkston ICE Processing Center (Folkston, Georgia)
On March 19, 2020, a detainee caller from Folkston reported he lacked access to soap and sanitizer, and at least one person in his housing unit had symptoms of cough, fever, or shortness of breath, but had not been removed from the unit. (Rivera Decl. ¶ 21.) A Southeast Immigrant Freedom Initiative (“SIFI”) attorney visiting Folkston on March 16, 2020 was required to undergo a temperature check and questionnaire, and provided her own gloves and disinfectant wipes. (Id. ¶ 19.)
f. Stewart Detention Center (Lumpkin, Georgia)
The week before March 23, 2020, SIFI attorneys entering Stewart were not required to submit to temperature checks or to pass screening. (Rivera Decl. ¶ 22.) Some but not all facility staff wore gloves, and no staff wore masks. (Id.)
Defendants state that Stewart screens each detainee for disabilities upon admission. (Vick Decl., Ex. 12 ¶ 7.) Defendants state Stewart has identified detainees at greater risk for contracting COVID-19, but do not say what measures are being taken to protect those detainees in particular. (Id. ¶ 11.) They state that as of April 2, 2020, there are no confirmed detainee COVID-19 cases at Stewart but there is one suspected case. (Id. ¶ 13(a)-(c).) They do not state whether any housing unit is being cohorted or quarantined. The facility has increased sanitation frequency and supplies, including hand sanitizer, soap, masks, and gloves, which are “readily available” for both staff and detainee use. (Id. ¶ 15.) Defendants do not state what special accommodations or measures have been taken to protect Stewart detainees at risk of severe illness or death as a result of COVID-19.
As of April 10, 2020, Defendants knew of thirty suspected cases of COVID-19 in the facility, and they were placed on “medical observation,” and there were five confirmed cases in the facility. (Bretz Decl. ¶ 17.) Those five individuals are “isolated and receiving medical treatment” consistent with CDC guidelines. (Id. ¶ 14.) The facility now provides 24-hour
14 ICE Guidance on Covid-19, https://www.ice.gov/coronavirus.

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access to disinfectants, sanitizer, and soap in every housing unit, and is “encouraging . . . general population to use these tools often and liberally.” (Id. ¶ 16.) As of April 17, 2020 seven detainees and one ICE staff member tested positive for COVID-19 at Stewart.15
g. Irwin Detention Center (Ocilla, Georgia)
One detainee at Irwin reported to SIFI staff that there were confirmed cases of COVID-19 in the facility and that it was under quarantine. (Rivera Decl. ¶ 17.) A March 19, 2020, a detainee caller reported that neither ICE nor guards had given information about COVID-19, and that at least one person in his housing had a worsening cough, but had not been removed from the unit. (Id. ¶ 18.) As of April 17, ICE Reports one COVID-19 case at Irwin.16
h. South Louisiana ICE Processing Center (Basile, Louisiana)
The legal director of Las Americas Immigrant Advocacy Center reports that detainees have no access to soap or sanitizer, and that guards ran out of gloves. (Corchado Decl. ¶ 10.) Toilet paper is limited, adding to hygiene concerns, and multiple people in the barracks were coughing. (Id. ¶ 10.) One immune-compromised detainee was working in the facility kitchen until at least March 20, 2020. (Id. ¶ 11.) Las Americas reports HIV positive detainees are scheduled to be transferred by bus and/or plane, through various detention centers. (Id. ¶ 12.) Parole-eligible detainees with family in the U.S. have had pending parole applications for up to three weeks. (Id. ¶ 13.)
i. LaSalle Detention ICE Processing Center (Jena, Louisiana)
SIFI staff received a March 19, 2020 call from an individual held at LaSalle who complained of fever, chest pain, difficulty breathing while trying to sleep, and of coughing blood. (Rivera Decl. ¶ 11.) The detainee stated he tested negative for the flu but had not been tested for COVID-19, and he could only obtain ibuprofen, syrup, and salt. He reported sharing a unit with others with similar symptoms. (Id. ¶ 11.) He stated that GEO staff were not routinely using gloves. (Id. ¶ 11.) On March 20, 2020, SIFI received information from two clients who had engaged in a 120-day hunger strike that they would likely be force fed on March 23 or 24, 2020. (Id. ¶ 13.) The ICE field office twice denied their parole applications, despite evidence of medical vulnerability. (Id.) ICE Response to requests for release “remains spotty” and many applications are denied or receive no decision for months. (Id. ¶¶ 14-15.) As of April 17, 2020, one detainee has tested positive at this facility.17
// //

15 ICE Guidance on Covid-19, https://www.ice.gov/coronavirus. 16 ICE Guidance on Covid-19, https://www.ice.gov/coronavirus. 17 ICE Guidance on Covid-19, https://www.ice.gov/coronavirus.

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j. Pine Prairie Detention Center (Pine Prairie, Louisiana)
As of March 16, 2020, detainees informed a SIFI staff member that they lacked access to hand soap, and that the facility operator, GEO Group, had not altered protocols in response to the pandemic. (Rivera Decl. ¶ 7.) During a visit, the SIFI staff member submitted to a temperature check and questionnaire, but noted staff and detainees did not wear masks or gloves. (Id. ¶ 6.) On March 18, 2020, a detainee told SIFI staff that he and about 60 others in Charlie Alpha unit were under quarantine, after someone in the unit was suspected of having COVID-19. (Id. ¶ 8.) Individuals in the unit had to clean their own unit, and had no access to hand soap or sanitizer, except soap they had for showers. (Id.) No spacing measures had been implemented. (Id.) The following day, a detainee in another unit stated they were receiving hygiene supplies every two days, and that two individuals with COVID-19 symptoms had been removed from the unit.
On the day after that, March 20, 2020, a SIFI member visited detainees from the quarantined unit, but staff did not check her temperature. (Id. ¶ 10.) The staff member observed some staff wore masks and others did not. (Id.) The detainees stated they did not have masks inside the unit, and that detainees were still cleaning the dorm without gloves. (Id.) Transferees or newly detained individuals continued to be admitted to the unit. (Id.) As of April 17, 2020, four detainees at Pine Prairie have tested positive.18
k. Joe Corley Detention Facility (Conroe, Texas)
Las Americas received several complaints from clients concerned about the lack of preventive measures a Joe Corley Detention Facility. (Corchado Decl. ¶ 17.) The facility places 36 people in each barrack. (Id. ¶ 22.) Cafeteria workers organized a three-day strike, and access to food was disrupted, resulting in one detainee suffering an epileptic seizure. (Id. ¶ 18.) Clients report to Las Americas there are others in their dorms sick with what seems like the flu, and who have been denied medical visits. (Id. ¶ 19.) Two clients have asthma and have not received inhalers, and another detainee with bullets in his legs has not been able to obtain pain medication. (Id. ¶¶ 18-21.) Deportation Officers have informed all but one Las Americas clients that ICE will not consider their parole applications, because they were formerly placed in Migrant Protection Protocols (“MPP”), even though such individuals are eligible and similarly situated clients have obtained parole before. (Id. ¶ 23.)
l. Houston Contract Detention Facility (Houston, Texas)
A detainee at this facility declares that as of March 24, 2020, he did not receive formal information about COVID-19 beyond informational flyers, and observed no increase in cleaning supplies to support additional handwashing. (Sanchez Decl. ¶ 7.) Detainees with cleaning assignments had to mop and sweep without gloves or protective equipment, and guards did not wear gloves or masks. (Id. ¶ 7.) Social distancing in the 40-person open dorm with bunk beds

18 ICE Guidance on Covid-19, https://www.ice.gov/coronavirus.

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four feet apart was not possible. (Id. ¶ 10.) The week prior, new transferees from Otay Mesa were added to the facility. (Id. ¶ 11.) As of April 20, 2020, one ICE employee tested positive at this facility.
m. South Texas ICE Processing Center (Pearsall, Texas)
On March 17, 2020, six detainees reported they had not received information about COVID-19 from the facility. (Steglich Decl. ¶ 6.) Detainees did not know what precautionary measures they should be taking, and no protective gear was available. (Id.) New arrivals continued to come to the facility, without information as whether they had been screened. (Id. ¶ 7.) None of the detainees reported temperature checks. (Id.) Court rooms at the facility were functioning as normal, with judges, attorneys, court staff, and respondents in close proximity. (Id. ¶ 10.) Respondents were held in a crowded, closed cells before and after their hearings. (Id. ¶ 11.)
n. Other Facilities
Plaintiffs also provide declarations from legal service providers about the response to COVID-19 at immigration detention facilities in their region. An immigration legal services provider covering New Jersey facilities with COVID-19 cases reports that transferees continue to arrive in housing units where people exhibited symptoms of the virus. (Saenz Decl. ¶¶ 7-9.) At Bergen County Jail, clients are locked down in close quarters with their cellmates for all but a few hours a day, have no recreation or phone access, and must use toilets that cannot be flushed regularly. (Id. ¶ 13.) The conditions at Hudson County Jail in Kearny have been similar. (Id.) The service provider, New York Immigrant Family Unity Project, submitted release requests to ICE for 16 particularly vulnerable people, but ICE had not answered as of March 23, 2020. (Id. ¶ 15.)
The National Immigrant Justice Center (“NIJC”) covers the following facilities: McHenry County Jail in Woodstock, Illinois; Jerome Combs Detention Center in Kankakee, Illinois; Boone County Jail in Burlington, Kentucky; Clay County Detention Center in Brazil, Indiana; Kenosha County Detention Center in Kenosha, Wisconsin; Pulaski County Detention Center in Ullin, Illinois; Dodge County Detention Center in Juneau, Wisconsin; Otay Mesa Detention Center in San Diego California; Cibola County Correctional Center in Milan, New Mexico; and South Texas Detention Complex in Pearsall, Texas. (Zwick Decl. ¶¶ 3-4.) NIJC notes that “[m]ost clients reported that they received no information whatsoever from ICE or facility staff, much less medical staff, about the virus, and were learning what they knew almost exclusively from watching television.” NIJC clients reported lack of access to soap, water, hand sanitizer, disinfectants, or other necessary supplies. (Id. ¶¶ 15-25.)
Another organization, Friends of Miami-Dade Detainees (“FOMDD”), provided anecdotes regarding Krome Service Processing Center in Miami, Florida; Broward Transitional Center in Pompano Beach, Florida, and Glades County Jail in Moore Haven Florida. (Conlin Decl. ¶ 2.) FOMDD has not been allowed to bring cleaning supplies, masks, gloves, or hand

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sanitizer to the facilities. (Id. ¶ 4.) Detainees at these facilities reportedly lack adequate soap and cleaning materials. (Id. ¶ 7.)
II. LEGAL STANDARD
A. Provisional Class Certification
Courts in the Ninth Circuit “routinely grant provisional class certification for purposes of entering injunctive relief.” Carrillo v. Schneider Logistics, Inc., 2012 WL 556309, at *9 (C.D. Cal. Jan. 31, 2012) (citing Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)). Federal Rule of Civil Procedure 23 (“Rule 23”) governs the litigation of class actions. A party seeking class certification must establish the following prerequisites:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). After satisfying the four prerequisites of numerosity, commonality, typicality, and adequacy, a party must also demonstrate one of the following: (1) a risk that separate actions would create incompatible standards of conduct for the defendant or prejudice individual class members not parties to the action; (2) the defendant has treated the members of the class as a class, making appropriate injunctive or declaratory relief with respect to the class as a whole; or (3) common questions of law or fact predominate over questions affecting individual members and that a class action is a superior method for fairly and efficiently adjudicating the action. See Fed. R. Civ. P. 23(b)(1)-(3).19
A trial court has broad discretion regarding whether to grant a motion for class certification. See Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). However, “[a] party seeking class certification must affirmatively demonstrate [] compliance with [Rule 23]—that is, [the party] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A district court must conduct a “rigorous analysis” that frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Id. at 351. “Courts typically proceed claim-by-claim in determining whether the Rule 23 requirements have been met, particularly as to the Rule 23(a)(2) and (b)(3) requirements of common questio[ns] and predominance.” Allen v. Verizon California, Inc., 2010 WL 11583099, at *2 (C.D. Cal. Aug. 12, 2010).
Rule 23 further provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues,” Fed. R. Civ. P. 23(c)(4), or the

19 While some circuits have adopted an “ascertainability” prerequisite to certification, the Ninth Circuit has not. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 n.4 (9th Cir. 2017).

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“class may be divided into subclasses that are each treated as a class under this rule,” Fed. R. Civ. P. 23(c)(5). “This means that each subclass must independently meet the requirements of Rule 23 for the maintenance of a class action.” Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981).
B. Preliminary Injunction
“A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citations omitted). An injunction is binding only on parties to the action, their officers, agents, servants, employees and attorneys and those “in active concert or participation” with them. Fed. R. Civ. P. 65(d).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit employs the “serious questions” test, which states “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citations omitted).
III. DISCUSSION
A. Rule 23(a) Requirements
Plaintiffs request provisional certification of the following two subclasses (“Subclasses”):
Subclass One: All people who are detained in ICE custody who have one of the Risk Factors placing them at heightened risk of severe illness and death upon contracting the COVID-19 virus.20

20 The Risk Factors are defined as being over the age of 55; being pregnant; or having chronic health conditions, including: cardiovascular disease (congestive heart failure, history of myocardial infarction, history of cardiac surgery); high blood pressure; chronic respiratory disease (asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other pulmonary diseases); diabetes; cancer; liver disease; kidney disease; autoimmune diseases (psoriasis, rheumatoid arthritis, systemic lupus erythematosus); severe psychiatric illness; history of transplantation; and HIV/AIDS.

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Subclass Two: All people who are detained in ICE custody whose disabilities place them at heightened risk of severe illness and death upon contacting the COVID-19 virus.21
(Class Cert. Mot. at 2-3.) Plaintiffs argue that the putative class members are at risk of serious illness or death due to a systemwide failure to implement adequate preventive measures. (Id.)
1. Numerosity
A class satisfies the prerequisite of numerosity if it is so large that joinder of all class members is impracticable. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). To be impracticable, joinder must be difficult or inconvenient but need not be impossible. Keegan v. American Honda Motor Co., 284 F.R.D. 504, 522 (C.D. Cal. 2012). There is no numerical cutoff for sufficient numerosity. Id. However, forty or more members will generally satisfy the numerosity requirement. Id.
The Court finds the class is sufficiently numerous that joinder of all class members would be impracticable. Although Plaintiffs do not know the exact number of people in ICE detention with the specified Risk Factors or Covered Disabilities, the Court agrees that “general knowledge and common sense indicate that [the class] is large.” Inland Empire-Immigrant Youth Collective v. Nielsen, 2018 WL 1061408, at *7 (C.D. Cal. Feb. 26, 2018). At the time Plaintiffs filed, about 40,000 individuals were in immigration detention facilities nationwide. (Seaborn Decl., Ex. F (attaching ICE’s published Average Daily Population as of 03/14/2020).) Plaintiffs estimate about 1400 individuals over the age of 50 are in ICE custody, and about 2400 individuals with Chronic Obstructive Pulmonary Disease, for example. (Class Cert. Mot. at 3-4.)
Defendants assert unconvincingly that Plaintiffs “fail to show that there are at least 40 individuals” with the defined factors. (Class Cert. Opp’n at 11.) However, Plaintiffs are not required to provide irrefutable proof of the number of individuals in the putative class. Where the relief sought is “only injunctive or declaratory,” the numerosity requirement is somewhat relaxed, and “even speculative or conclusory allegations regarding numerosity” are sufficient to permit certification. Sueoka v. United States, 101 F. App’x 649, 653 (9th Cir. 2004). In addition, Defendants do not meaningfully question Plaintiffs’ estimates. Defendants’ own declarations suggest that detention facilities track the numbers of disabled detainees, and if this is true, it stands to reason that the government would counter Plaintiff’s numbers with their own data. (Vicks Exs. 10-12, ¶¶ 7, 11 (noting IHSC believes facilities are tracking the numbers of individuals with disabilities, and some are tracking those with COVID-19 risk factors).)

21 Covered Disabilities include: cardiovascular disease (congestive heart failure, history of myocardial infarction, history of cardiac surgery); high blood pressure; chronic respiratory disease (asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other pulmonary diseases); diabetes; cancer; liver disease; kidney disease; autoimmune diseases (psoriasis, rheumatoid arthritis, systemic lupus erythematosus); severe psychiatric illness; history of transplantation; and HIV/AIDS.

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Defendants next argue that a finding of impracticability of joinder is barred by the fact that two Named Plaintiffs have sought and obtained release, and “scores if not hundreds” of ICE detainees have sought release across the country. (Class Cert. Opp’n at 12.) Defendants fail to articulate why this fact is relevant to the impracticability inquiry. If anything it tends to show the turmoil, expense, and difficulty caused by a piecemeal approach. Moreover, Plaintiffs’ Motions seek a centralized ICE process of COVID-19 harm reduction for the most at-risk individuals, not release on bond. It would be inconvenient and difficult, if not impossible, for detainees to obtain timely relief by filing conditions of confinement suits for each detention facility or unit in the country. Given the many obstacles to accessing counsel during the COVID-19 pandemic, the Court is concerned that many putative class members would not be able to proceed on their own, a fact which further highlights the impracticability of joinder.
2. Commonality
The commonality requirement is satisfied when plaintiffs assert claims that “depend upon a common contention . . . capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350; see also id. (“What matters to class certification . . . is not the raising of common questions . . . but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”) (internal quotation marks and citations omitted). Differences among putative class members sometimes impede the generation of such common answers. Id. In the Ninth Circuit, “Rule 23(a)(2) has been construed permissively. . . . The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003).
Plaintiffs present the Court with shared factual and legal issues more than adequate to support a finding of commonality. Stated in general terms, the common question driving this case is whether Defendants’ system-wide response—or the lack of one—to COVID-19 violates Plaintiffs’ rights. One shared factual question is therefore what, if any, nationwide measures ICE has taken in response to COVID-19 to protect the health of vulnerable immigration detainees and whether those measures are legally sufficient. The existence, scope, and adequacy of those measures are central to all of Plaintiffs’ claims.
Three shared legal questions are whether the supposed systemwide actions or inactions: (1) amount to deliberate indifference and expose detainees to a substantial risk of harm, Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Brown v. Plata, 563 U.S. 493, 505 n.3 (2011); (2) result in conditions of confinement more restrictive than criminal detention and that constitute punishment, Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004); (3) or deprive detainees of the benefits of an Executive Agency program, solely on the basis of disability, 29 U.S.C. § 794 (a). Plaintiffs identify several additional common issues that would satisfy Rule 23(a)(2)’s standard. (Class Cert. Mot. at 11-12.) Even one issue common to each class is all that is required. Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D. Cal. 1996).

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Defendants argue that the proposed classes “flunk” the commonality requirement due to the factual variation between facilities and between the degree of COVID-19 threat to each individual. (Class Cert. Opp’n at 14.) For example, Plaintiffs provide evidence of the conditions at many geographically dispersed detention facilities, where the COVID-19 response differs somewhat. In addition, Plaintiffs themselves have varying medical conditions and risk factors.
The Court disagrees that these differences defeat commonality. Despite Plaintiffs’ admitted differences, each putative class member finds herself in similar situation. Each class member claims entitlement to a minimally adequate national rescue response from ICE. Indeed, the variety of facility COVID-19 countermeasures tends to support Plaintiffs’ contention that ICE has failed to institute the well-ordered, mandatory relief effort to which they claim entitlement. This facility doesn’t have adequate soap and handwashing facilities. That one does not provide PPE for detainees cohorted with someone thought to be exposed to the virus. This person may die of COVID-19 because of hypertension, and that one may die because of HIV. Yet across all facilities and individuals, the question remains: is ICE required to adopt a global response, and is that response adequate? Parsons, 754 F.3d at 681-82 (finding commonality satisfied where “policies and practices of . . . systemic application expose[d] all inmates in [Arizona Department of Corrections] custody to a substantial risk of serious harm.”). As a result, the factual differences are not of the sort that likely affect entitlement to relief or that are likely to change the outcome of the legal analysis. Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Dukes, 564 U.S. at 348, 358.
3. Typicality
“The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). The typicality inquiry focuses on the claims, not the specific facts underlying them. Just Film, Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017). “The requirement is permissive, such that ‘representative claims are typical if they are reasonably coextensive with those of absent class members; they need not be substantially identical.’” Id. (quoting Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014)). “Measures of typicality include whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Id. (internal quotations and citations omitted). The applicability of different defenses to the class representative will preclude typicality if “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Id. (quoting Hanon, 976 F.2d at 508).
The Court finds that the putative class representatives’ claims are typical of those in the proposed class, because they have the same claims and face the same or similar harms arising from the same course of conduct. Hanon v. Dataproducts, 976 F.2d 497, 508 (9th Cir. 1992). Each Plaintiff has either a Risk Factor or Covered Disability included in the class definitions (hypertension, diabetes, or cardiovascular disease, or over fifty-five years old) and is or was

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detained at one of several facilities, across three states, impacted by Defendants’ alleged inaction. (Hernandez Decl. ¶ 2; Sanchez Decl. ¶¶ 2-3; Fraihat Decl. ¶¶ 2-5; Sudney Decl. ¶¶ 2-7; Munoz Decl. ¶¶ 1-2.) The common course of conduct alleged by Plaintiffs includes ICE’s inadequate oversight of detention facilities’ medical care, failure to identify individuals with disabilities or with COVID-19 vulnerabilities, and failure to implement adequate precautionary measures and protocols with respect to those individuals. The failures to act are thus the same across the class as a whole, as is the legal injury: exposure to an unreasonable risk of harm resulting from COVID19 infection, punitive conditions of confinement, or deprivation of program benefits on the basis of disability.
Defendants again raise the fact that numerous detainees have petitioned for or obtained release, and comment that individualized habeas relief is a “better avenue” for relief. (Class Cert. Opp’n at 18-19.) However, that fact would not bar a finding of typicality or result in a cessation of the class interest in ensuring an appropriate systemwide response to COVID-19. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1092 (9th Cir. 2011) (finding an offer of judgment for the full amount of a plaintiff’s claim before class certification does not moot the class action, that “if the district court certifies the class, certification relates back to the filing of the complaint,” and that in this case, the action may continue, because the individual relief “fails to satisfy the demands of the class.”) Moreover, the relief sought in a habeas petition is particularized, but here, Plaintiffs claim entitlement to a comprehensive response to the pandemic. The Court also observes that some habeas petitions and TROs for individual release will be denied, and those individuals also have a continued interest in a comprehensive response, short of release, that ensures adequate protections.
Nor is the difference in legal standards across circuits a bar to typicality, as Defendants assert. (Class Cert. Opp’n at 19.) First, the representatives and the putative class members assert a similar risk of physical harm and of detriment to their rights, despite some differences in the legal standards for claims across the circuits. Second, the Supreme Court has held that a federal agency is not necessarily entitled to confine any ruling of a court of appeals to its immediate jurisdiction. In Califano v. Yamasaki, 442 U.S. 682 (1979), the Court held that there are no legal limits on the geographical scope of a class action brought in federal district court. 442 U.S. at 702; Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987). The primary concern should be that the relief granted does not impose greater burdens than necessary to redress the complaining parties. Id. As a result, the Court finds Plaintiffs have established the typicality of the representatives’ claims.
4. Adequacy
In determining whether a proposed class representative will adequately protect the interests of the class, the Court asks whether the proposed class representatives and their counsel have any conflicts of interest with any class members and whether the proposed class representatives and their counsel will prosecute the action vigorously on behalf of the class. Hanlon, 150 F.3d at 1020.

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The proposed class representatives and class counsel can adequately represent the class. The named Plaintiffs establish their willingness to work with class counsel to effectively represent the interests of the class as a whole. (Fraihat Decl., ¶¶ 12-14; Sudney Decl., ¶¶ 15-17; Sanchez Decl., ¶¶ 21-23; Hernandez Decl. ¶¶ 9-10; Munoz Decl. ¶¶ 13-14.) Plaintiffs’ counsel, meanwhile, has extensive experience litigating immigrants’ rights and class actions. (Fox Decl. ¶¶ 3-11; Seaborn Decl. ¶¶ 3-14; Alderman Decl. ¶¶ 1-6; Graybill Decl. ¶¶ 3-8; Johnson Decl. ¶¶ 2-6). The Court perceives no disqualifying conflict of interest or indication that Plaintiffs and their counsel will not “vigorously” pursue the action on behalf of the class. Hanlon, 150 F.3d at 1020 (9th Cir. 1998).
Defendants do not argue Plaintiffs will not adequately protect the interests of the class, except to the extent that they have been released pursuant to independent habeas petitions or have different levels of COVID-19 risk. (Class Cert. Opp’n at 20-21.) However, Defendants cite no authority for the proposition that release from detention prevents a finding of typicality or necessarily results in a conflict of interest.22 Similarly without merit is the contention that an individual with diabetes will advocate more or less vigorously to be protected from COVID-19 than an individual with cardiovascular disease or with HIV/AIDS. The non-detained representatives may be in an even better position, of comparative liberty, to pursue claims on behalf of the class. In sum, the Court finds the adequacy requirement is satisfied
B. Rule 23(b) Requirements
Plaintiffs seeks to certify their proposed sub-classes under Rule 23(b)(2). (Certification Mot. at 14.) Rule 23(b)(2) permits certification of a class seeking declaratory or injunctive relief where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In the Ninth Circuit, “[i]t is sufficient to meet the requirements of Rule 23(b)(2) [when] class members complain of a pattern or practice that is generally applicable to the class as a whole.” Rodriguez I, 591 F.3d at 1125-26 (9th Cir. 2010) (internal citation and quotation marks omitted) (finding certification under Rule 23(b)(2) proper where “proposed members of the class each challenge Respondents’ practice of prolonged detention of detainees without providing a bond hearing and seek as relief a bond hearing with the burden placed on the government”). Thus, the critical inquiry is “whether class

22 Defendants also raise the possibility that detainees held under different statutory mandates will have different, conflicting, interests. (Class Cert. Opp’n at 21 (raising the specter of a conflict between class members who are “mandatorily” detained and those who are not).) The Court is not concerned about that potential conflict. The class’s interest is not in release, but in not being subjected to unlawful conditions of confinement. Second, whatever the particular detention authority Defendants might invoke, the due process violations asserted arise from the same systematic failures, and could overcome a more generalized detention mandate. See Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional . . . .”).

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members seek uniform relief from a practice applicable to all of them.” Rodriguez I, 591 F.3d at 1125.
Because Defendants’ actions and inactions apply to the class generally, the Court determines that Rule 23(b)(2)’s requirements are satisfied. The putative class seeks declaratory and injunctive relief based on the asserted inadequacies of Defendants’ COVID-19 protocols and response. For purposes of this inquiry, “[t]he fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2).” Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014) (finding Rule 23(b)(2) satisfied where the state department of corrections established policies and practices that placed “every inmate in custody in peril” and all class members sought essentially the same injunctive relief); Rodriguez I, 591 F.3d at 1125.
A related test for whether Rule 23(b)(2) certification is appropriate is “the indivisible nature of the injunctive or declaratory remedy” sought, or “the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360. Defendants again remark that Plaintiffs suffer from different conditions and are detained at different facilities, and Defendants contend on this basis the Rule 23(b)(2) requirements are not met. (Class Cert. Opp’n at 14-15 (also noting potential individual differences with respect to flight risk, likelihood of removal, and danger to the community).) However, Plaintiffs do not seek any individualized determination by this Court of whether they are entitled to release, and do not request a different injunction for each class member. Rather, they ask the Court to determine whether ICE’s systematic actions, or failures to act, in response to COVID-19 amount to violations of the class members’ constitutional or statutory rights. As a result, the same injunction or declaratory judgment would provide relief to all class members, or to none of them, and the Court concludes Rule 23(b)(2)’s requirements are satisfied.
C. Preliminary Injunction
The Court finds that Plaintiffs are likely to succeed on the merits of one or more of their claims, will suffer irreparable harm as a result of the deprivation of their rights, and that the balance of equities and public interest heavily weigh in favor of granting preliminary relief.
1. Success on the Merits or Serious Questions
Plaintiffs claim Defendants’ COVID-19 response gives rise to three claims for relief: (1) medical indifference in violation of the Fifth Amendment; (2) punitive conditions of confinement, in violation of the Fifth Amendment; and (3) denying persons with disabilities the benefits of Executive Agency programs and activities, in violation of Section 504 of the Rehab Act. (PI Mot. at 9, 15, 17.)
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a. Standing
Defendants argue that Plaintiffs lack Article III standing,23 and cannot therefore succeed on any of their claims. (PI Opp’n at 14-15.) Defendants do not raise concerns about whether the harm alleged can be fairly traced to them. Instead they argue narrowly that the asserted harm is speculative and not redressable, because no COVID-19 cases have been identified in Plaintiffs’ facilities. That is no longer true. Seven detainees at Stewart Detention Center in Lumpkin Georgia, where Martinez is held, have tested positive for COVID-19, and thirty more are suspected to have the disease.24 Even if no detainee or staff member had tested positive, for reasons described in the irreparable harm section below (Part III.C.2), the Court rejects the contention that the risk of COVID-19 is overly speculative.25
b. Medical Indifference
The standard for medical indifference in violation of the Fifth Amendment was recently articulated in a case involving pretrial detainees, Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018). The elements of a medical indifference claim by pretrial detainees are:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—

23 “Constitutional standing concerns whether the plaintiff’s personal stake in the lawsuit is sufficient to make out a concrete ‘case’ or ‘controversy’ to which the federal judicial power may extend under Article III, § 2.” Pershing Park Villas Homeowners Ass’n v. United Pacific Ins. Co., 219 F.3d 895 (9th Cir. 2000). “[T]he irreducible constitutional minimum of standing” is comprised of three elements: (1) an injury-in-fact; (2) a causal connection between the injury and challenged conduct such that the injury is “fairly traceable” to the challenged action; and (3) it must be “likely,” not merely “speculative” that the injury can be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The injury-in-fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560. “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561.
24 (Bretz Decl. ¶ 14.) See also ICE Guidance on COVID-19, https://www.ice.gov/coronavirus.
25 Defendants cite no authority for, and the Court rejects, the implication that it lacks authority to enter class-wide relief to require a constitutionally adequate response to COVID-19 from ICE. (PI Opp’n at 4-5 (arguing that “this Court lacks the authority to redress such injuries,” and not disputing that Plaintiffs’ proposed injunction would provide them with relief).) See also Padilla v. Immigration & Customs Enf’t, 2020 WL 1482393, at *11 (9th Cir. Mar. 27, 2020) (discussing authority of district courts to enter class wide relief).

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making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.
888 F.3d at 1125. “With respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each particular case.’” Id. (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070-71 (9th Cir. 2016)). Objective unreasonableness is “more than negligence but less than subjective intent—something akin to reckless disregard.” Id.
Plaintiffs are likely to succeed on the merits of their medical indifference claim. The Court analyzes each element below.
i. Intentional Decision
A failure to act with respect to a known condition of confinement may constitute an intentional decision. See Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (permitting a failure-to-protect due process claim under 42 U.S.C. § 1983 where officers knew of the risk); Flentoil v. Santa Clara Cty. Dep’t of Corr., 2020 WL 571025, at *7 (N.D. Cal. Feb. 5, 2020) (refusal to provide medication). Some courts have found that where the defendant did not have time to act, however, there is not an intentional decision. Pajas v. Cty. of Monterey, 2018 WL 5819674, at *8 (N.D. Cal. Nov. 5, 2018) (finding no jury could find the sheriff acted intentionally towards a condition of confinement by his “failure to revamp jail policies and procedures,” because he had just taken office less than three weeks earlier).
Defendants made an intentional decision to promulgate only non-binding guidance for the first month of the pandemic, despite some knowledge of the risk posed by COVID-19. The March 6, March 27, and April 4, 2020 ICE guidance documents illustrate Defendants’ awareness of a grave risk, but their failure to mandate a facility-wide response. Cf. Brown v. Trejo, 2018 U.S. Dist. LEXIS 193389, *28 (C.D. Cal. Sept. 24, 2018) (finding that failure to act with regard to a condition, without knowledge of that condition or the risk posed, is not intentional). From March 11, 2020, when the pandemic was declared by the World Health Organization, until April 10, 2020, Defendants’ policy documents equivocated dangerously, and the IHSC guidance counseled both “follow me” and “defer to the CDC.” (Action Plan; Docket Review Guidance.)
ICE’s systemwide inaction specifically towards individuals with disabilities or certain risk factors also likely constitutes an “intentional decision.” Defendants do not directly dispute that ICE itself does not track medically vulnerable and/or disabled detainees with specificity.26 Nor

26 Defendants’ Declarations state that some facilities are tracking detainees with disabilities and COVID-19 vulnerabilities, but the declarations fail to address whether Defendants themselves track these individuals or required facilities to track them. The declarations do not explain whether the disabilities facilities screen for are coextensive with the CDC-defined risk factors, and do not explain if a procedure is available for obtaining that

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does the Docket Review Guidance mandate action aimed at them. It asks Field Office Directors to “please” make individualized determinations of the necessity of ongoing detention, and only as to some detainees. (Docket Review Guidance.) Defendants have not made the Court aware of a requirement that FODs make individualized determinations as to eligible detainees. Under current policy, ineligible medically vulnerable individuals who are mandatorily detained will not be identified, or offered any accommodation beyond that available to the general population to protect from this deadly disease.
A final relevant decision is ICE’s apparent failure to enforce compliance with its policy documents. To the extent COVID-19 risk was addressed by individual facilities from March 11, 2020 to April 10, 2020, it seems to have been voluntary. Now, there is a Pandemic Response Requirement document. This document also includes no mention of enforcement mechanisms. Plaintiffs incorporated by reference into their Complaint several OIG reports about ICE’s medical care system, which the Court finds persuasive on this point. (Compl. ¶¶ 160 n.45, 186 n.97, 347 n.303.) The OIG reports discuss at greater length ICE’s monitoring and oversight failures, with particular regard to inadequate medical care, limited hygiene, and long wait times for urgent medical procedures.
ii. Substantial Risk of Serious Harm
Whether “a substantial risk of serious harm” exists is a largely a question of fact. Lemire v. Cal. Dep’t. of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013). “[I]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk . . . for reasons personal to him or because all prisoners in his situation face such a risk.” Farmer v. Brennan, 511 U.S. 825, 843 (1994).
Plaintiffs also demonstrate that ICE’s policies and delayed response likely subject Subclass members to a substantial risk of serious harm. It is undisputed that COVID-19 finds its way into almost every workplace and communal setting, and the Defendants provide little explanation why immigration detention facilities will be different. Defendants also do not dispute that 15% of individuals in the Subclasses who ultimately contract COVID-19 will die, or that those who survive are likely to suffer life-altering complications. At the larger detention facilities, a COVID-19 outbreak could result in dozens of deaths. And as recent ICE COVID-19 case numbers indicate, once a facility has a few cases, the disease spreads rapidly, despite IHSC and CDC protocols.
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information. The declarations are also extremely vague as to the level of oversight and monitoring conducted by FMCs, whether FMCs can obtain medical information on particular detainees, and many other pertinent questions. Only as of April 10, 2020, did ICE mandate all facilities to report to ICE FODs or FMCs the A-number, location, and medical condition of any detainee with the CDC-defined risk criteria. (Pandemic Response Requirements at 6.)

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iii. Objective Unreasonableness or Reckless Disregard
Substantive due process imposes a standard of deliberate indifference or reckless disregard. See Gantt v. City of L.A., 717 F.3d 702, 708 (9th Cir. 2013); Tennison v. City and Cnty. of S.F., 570 F.3d 1078, 1089 (9th Cir. 2009). In Gantt, the Ninth Circuit explained: “Deliberate indifference is the conscious or reckless disregard of the consequences of one’s acts or omissions. It entails something more than negligence but is satisfied by something less than acts or omission for the very purpose of causing harm or with knowledge that harm will result.” 717 F.3d 702, 708 (9th Cir. 2013).
Defendants’ failures to act are likely “akin to reckless disregard.” Gordon, 888 F.3d at 1125. As of the drafting of this Order, Defendants have not provided even nonbinding guidance to detention facilities specifically regarding medically vulnerable detainees, pending individualized determinations of release or denial of release. Second, Defendants delayed mandating adoption of the CDC guidelines, and unreasonably delayed taking steps that would allow higher levels of social distancing in detention.27 Although Defendants state three of their facilities are within population limits, they do not explain whether the population has been reduced so that quarantined or medically isolated cohorts can comply with CDC recommendations, which are now mandated. (CDC Interim Guidance at 16, 20; Pandemic Response Requirements, Attach. E.) As a result, any medically vulnerable individual in an ICE facility likely confronts an unreasonable risk of infection, severe illness, and death.
While Defendants took some available measures to mitigate the threat of COVID-19, (see generally, Holt Decl.; Action Plan; Docket Review Guidance; Pandemic Response Requirements), there is a serious question whether the issuance of non-binding recommendations is an objectively “reasonable” response to a pandemic, given the high degree of risk and obvious consequences of inaction. The Court has noted at least two probable serious failures to act: first, the month-long failure to quickly identify individuals most at risk of COVID-19 complications and to require specific protection for those individuals; and second, the failure to take measures within ICE’s power to increase the distance between detainees and prevent the spread of infectious disease, for example by promptly releasing individuals from detention to achieve greater spacing between medically vulnerable individuals and the general population.

27 On April 6, 2020, ICE’s website stated that ERO decided to “reduce the population of all detention facilities to 70 percent or less” to increase social distancing. ICE Guidance on COVID-19, https://www.ice.gov/coronavirus. The Pandemic Response Requirements state that all facilities “should . . . to the extent practicable . . . [make efforts] to reduce the population to approximately 75% of capacity.” (Pandemic Response Requirements at 13.) However, it is not clear how facilities could achieve this objective without ICE assistance, nor is it clear that ICE is close to meeting this objective. Defendants provide evidence that the population of single adult detainees has decreased only slightly in the past month. (Holt Decl. ¶ 13 (from 35,980 on March 13, 2020 to 31,709 on April 13, 2020).).

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Plaintiffs point to several additional global failures they deem objectively unreasonable, which bolster their chances of success on this claim. Plaintiffs raise serious questions about the reasonableness of the IHSC guidance at the time it was promulgated and updated. (Reply at 5.) The IHSC guidance omits aspects of the CDC recommendations and is incommensurable with others (Venters Decl. II ¶ 3.) Again, the Court is particularly disturbed that IHSC guidance did not more strongly recommend social distancing28 or even PPE for the most at risk detainees stuck in cohorts, even assuming social distancing and PPE for the whole detained population is impracticable.
Plaintiffs also provide several reasons the Docket Review Guidance is objectively unreasonable. (Reply at 7.) First, it omits a CDC-defined risk factor.29 Second, it does not apply to medically vulnerable individuals held in “mandatory” detention, who remain in harm’s way. Third, it does not protect individuals while release determinations are being made. Fourth, it gives ICE FODs responsibility for identifying individuals at risk, not medical professionals. Fifth, it does not require action within a specific period of time. Sixth, it fails to provide clinical guidance. Seventh, it is, and remains, mere guidance and is not determinative. Eighth, it does not have a strong presumption of release. (Reply at 8.)
As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members. The evidence suggests systemwide inaction that goes beyond a mere “difference of medical opinion or negligence.” Bell v. Mahoney, 2019 WL 6792793 (C.D. Cal. Aug. 29, 2019). (Seaborn Decl., Ex. E, Letter from Dr. Scott Allen and Dr. Josiah Rich to Congressman Bennie Thompson et al. (Mar. 19, 2020); id., Ex. J, Open Letter to ICE from Medical Professionals to ICE Acting Director.) Plaintiffs are likely to satisfy the objective element30 of their deliberate indifference claim.
28 Defendants state the CDC Interim Guidance does not require social distancing, (PI Opp’n at 21), but the Court disagrees. The policy only recognizes that social distancing is “challenging” and then goes on to emphasize, “it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” CDC Interim Guidance at 4. The guidance also recommends making a list of possible social distancing strategies, id. at 6, which may be implemented at the individual, group, or operational levels.
29 This flaw remains in place even after April 10, 2020. Although the Pandemic Response Requirements order facilities to report to ICE any detainee with a high body mass index (BMI), the Docket Review Guidance omits BMI from the categories of person who will receive individualized consideration. The reverse problem exists with regard to pregnant detainees. The Pandemic Response Requirements do not require facilities to report pregnant detainees, but the Docket Review Guidance purports to provide individualized consideration for these individuals.
30 Defendants’ Class Certification Opposition notes that some circuits require plaintiffs to satisfy both an objective and subjective component for a medical indifference claim. (Class Cert. Opp’n at 19.) The Court rejected that argument in the class certification analysis. The Court pauses to note, however, that in one recent habeas decision in the District of Maryland, the court

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iv. Causation
Defendants’ action, or inaction, has caused harm to the Subclasses. First, Defendants exercise control over the size of the detainee population as a whole, and thus determine one of the most important factors in the spread of disease: the density of the detained population.31 Defendants also discretion to release individuals, including those who are “mandatorily detained” and to use alternatives to detention to achieve governmental objectives. (Jordan Decl., Ex. A.) Across facilities, it is ICE—not the facility—that decides whether an individual may be released.32
Next, as Defendants’ own declarations attest, (Vicks Decl. Exs. 10-13), ICE purports to exercise oversight and monitoring powers at contract detention facilities, and to correct any observed deficiencies. Defendants do not dispute that they have the authority to mandate compliance, but a month into the pandemic merely “recommended” compliance. As the exhaustive list of facility conditions in the fact section above illustrates, most facilities had significant compliance gaps even in mid to late March 2020, despite the fact that ICE issued guidance on March 6, 2020. As a result, the dangerous conditions to which detainees are subjected can be laid at Defendants’ doorstep. In sum, Plaintiffs are likely to succeed on their medical indifference claim.
c. Punitive Conditions of Confinement
Plaintiffs are also likely to succeed on their claim of punitive conditions of confinement. If a civil detainee is not afforded “more considerate” treatment than that available in a criminal pretrial facility, this creates a rebuttable presumption of punitiveness, which defendants may

found the subjective component to be satisfied because “there is no dispute that Respondents were and are subjectively aware of the risk that COVID-19 poses to both healthy and high-risk individuals” and “evidence supports the conclusion that as of the time of the filing . . . Respondents were disregarding the risk.” Coreas v. Bounds, Case No. 8:20-cv-00780 (D. Md. Apr. 4, 2020), ECF No. 56. A similar analysis could support a finding of the subjective prong in this case, were that necessary.
31 Notably, ICE could reduce the detained population by about half, simply by releasing detainees with no prior convictions and no pending charges, (Seaborn Decl. Ex. F), but it has not elected to do so. This would not require individualized determinations, could be achieved quickly, and would provide significant protection to the Subclass members who remain in detention.
32 Perhaps contract facilities could refuse to maintain dangerous population levels during the pandemic. However, the Court is unaware of a facility that has done so, and finds facilities are unlikely to take independent or decisive action given the economic imperative to maintaining full capacity and the contractual obligation to make a certain number of beds available for ICE detainees.

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counter by offering legitimate, non-punitive justifications for the restrictions. Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004) (citing Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)). Restrictions are also presumptively punitive where they are “employed to achieve objectives that could be accomplished in so many alternative and less harsh methods.” Id. (citing Hallstrom v. City of Garden City, 991 F.2d 1473, 1484 (9th Cir. 1993)).
During a pandemic such as this, it is likely punitive for a civil detention administrator to fail to mandate compliance with widely accepted hygiene, protective equipment, and distancing measures until the peak of the pandemic, and to fail to take similar systemwide actions as jails and prisons. Here, the protective actions taken by comparable prison and jail administrators have been as favorable or more favorable than Defendants’. For example, the federal Bureau of Prisons (“BOP”) has issued a more decisive and urgent call to action. (Reply at 10-11; Jordan Declaration, Ex. D, Memorandum from Att’y Gen. William Bar to Director of BOP (April 3, 2020).) The Attorney General directed BOP to prioritize the use of home confinement, noting “[w]e have to move with dispatch . . . to move vulnerable inmates out of these institutions.” Id. at 1. The Memorandum commands the Director of BOP to “IMMEDIATELY MAXIMIZE” appropriate transfers to home confinement, and goes so far as to authorize transfer to home confinement where electronic monitoring is not available. Id. at 1-2. In contrast, the Docket Review Guidelines ask FODs to “please” make individualized determinations as to release, and arguably fails to communicate the same sense of urgency or concern. To the Court’s knowledge, there is still no requirement that FODs take such action.
Defendants only weakly argue a legitimate, non-punitive justification for their month-long failure to meaningfully track medical vulnerabilities and to issue more than proposals. The legitimate purpose advanced by immigration detention is to secure attendance at hearings and to ensure the safety of the community. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001). However, attendance at hearings cannot be secured reliably when the detainee has, is at risk of having, or is at risk of infecting court staff with a deadly infectious disease with no known cure. Participation in immigration proceedings is not possible for those who are sick or dying, and is impossible for those who are dead. Another purpose of detention, public safety, is not advanced by delay. Plaintiffs establish that public safety as a whole is seriously diminished by facility outbreaks, which further tax community health resources. (Meyers Decl.; Venters Decl.) As a result, Defendants’ inactions are likely “arbitrary or purposeless,” and are excessive given the nature and purpose civil detention. Bell v. Wolfish, 441 U.S. 520, 539 (1979).
d. Section 504 of the Rehab Act
Plaintiffs are also likely to succeed on their Section 504 claim. To bring a Section 504 claim, a plaintiff must show that “(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance.” Updike v. Multnomah Cty., 870 F.3d 939, 949 (9th Cir. 2017) (quoting Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135

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(9th Cir. 2001)). Section 504 includes an “affirmative obligation” to make benefits, services, and programs accessible to people with disabilities.33 Id. (citations omitted).
Plaintiffs contend that persons with health conditions putting them at risk of severe illness or death if exposed to COVID-19 qualify as persons with disabilities under Section 504. (PI Mot. at 17.) The Defendants do not argue otherwise. (PI Opp’n at 28-29.) As a result, the Court finds that the medical conditions defined in the Subclass Two likely qualify under the Rehab Act. See 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
The programmatic “benefit” in this context is shared by all class members and is best understood as participation in the removal process. The “accommodation” Plaintiffs seek is also the same across the class: effective systemwide practices, such as disability tracking, and related life-preserving directives from ICE. (PI Mot. at 19.) Although Defendants assert that three facilities screen for disability at intake, they do not specify: (1) what those disabilities are, (2) to what extent they overlap with COVID-19 vulnerabilities, or (3) whether ICE required the facility to share that information with ICE before April 10, 2020. (Vick Decl., Exs. 10-12 (discussing screening in the same paragraphs, 7 and 11); Valdez Decl. ¶ 12; Reply at 14 n.31 (remarking that Stewart Detention facility purports to track disability yet “identified no detainees who would be at greater risk for contracting COVID-19”).) The only reasonable accommodation, which was likely denied here, was for ICE to mandate identification of all detainees with CDC-defined COVID-19 vulnerabilities, and to provide them with minimally adequate protection, whether that be detention with social distancing or protective equipment, an alternative to detention, or some other epidemiologically sound intervention.
The Court is not persuaded by Defendants’ argument that each detainee must individually request a reasonable accommodation and provide notice to the facility. (PI Opp’n at 29 (citing Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010)).) It is not reasonable to expect each detainee to utilize facility grievance mechanisms and ICE request boxes to obtain this kind of systemwide response to a pandemic. The argument also ignores the systematic nature of the relief sought here. Subclass members face the prospect of quick successions of transfers among ICE’s network of facilities, and cannot be expected to provide separate notice to each.
In addition, Defendants do not respond to Plaintiffs’ claim that ICE has an affirmative duty to track disabilities and provide accommodations, because the population is detained. See, e.g., Armstrong v. Brown, 732 F.3d 955, 962 (9th Cir. 2013) (affirming district court’s order to track and accommodate class member’s disabilities, and noting jails had an obligation to prevent future violations); Updike v. Multnomah Cty., 870 F.3d 939, 949 (9th Cir. 2017) (noting Title II and § 504 include an affirmative obligation for public entities to make benefits, services, and programs accessible to people with disabilities). One month into the crisis, Defendants tacitly

33 Section 504’s implementing regulations also prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration” that “have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b).

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acknowledged the importance of tracking medical vulnerabilities and the inadequacy of their existing detainee tracking tools when they ordered facilities to provide that information to them. (Pandemic Response Requirements at 5-7.) As a result of these systemwide failures, Plaintiffs are likely to succeed on their Rehab Act claims, and have met the first requirement for a preliminary injunction.
2. Likelihood of Irreparable Harm
A plaintiff must demonstrate she is likely to suffer irreparable harm in the absence of a preliminary injunction. See Winter, 555 U.S. at 20. The Ninth Circuit cautions that “[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean Marine Servs. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). A plaintiff seeking injunctive relief must demonstrate that “remedies available at law, such as monetary damages, are inadequate to compensate” for the injury. Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., 736 F.3d 1239, 1249 (9th Cir. 2013). “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Plaintiffs have established they will suffer the irreparable harm of increased likelihood of severe illness and death if a preliminary injunction is not entered. The Constitution protects those in detention against “a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”); see also Unknown Parties v. Johnson, 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (finding evidence of “medical risks associated with . . . being exposed to communicable diseases” adequate to establish irreparable harm).
Even in the early days of the pandemic, and with few exceptions, courts did not hesitate to find irreparable harm as a result of potential COVID-19 exposure in prison and detention, including in facilities where there had not been a confirmed case. (See Jordan Decl., Appendix 1 (collecting cases).) At this stage of the pandemic, the threat is even clearer. The number of immigration detainees testing positive for COVID-19 continues to increase at an alarming rate. (Jordan Decl. II, Ex. A (charting the increase).) Defendants do not argue that the curve is likely to flatten in the near future. They do not deny that about 15% of individuals vulnerable to COVID-19 will die, if they are infected or that more will suffer lasting consequences. Defendants also fail to respond to Plaintiffs’ evidence that detained populations tend to have worse health outcomes than the population as a whole. (Franco-Paredes Decl. at 1-2; Public Health Amicus at 18 (noting HIV among incarcerated population is ten times that of the general population, and tuberculosis is 2,500 times more prevalent); Venters Decl. at 7 (referencing study concluding that the uniform age definition of a geriatric or older prisoner should be fifty-five years).)
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3. Balance of the Equities and Public Interest
Where the government is the opposing party, balancing of the harm and the public interest merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Thus, the Court asks whether any significant “public consequences” would result from issuing the preliminary injunction. Winter, 555 U.S. at 24.
The balance of equities and public interest sharply incline in Plaintiffs’ favor. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (quotation omitted). Moreover, there can be no public interest in exposing vulnerable persons to increased risks of severe illness and death. “Faced with . . . preventable human suffering, [the Ninth Circuit] ha[s] little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)). Plaintiffs also attach evidence suggesting that a failure to protect the most vulnerable detainees could quickly overwhelm local hospitals with insufficient ICU beads or respirators, diminishing the available health resources for all. (Seaborn Decl., Ex. E at 4.) If a preliminary injunction is entered, however, survival is maximized. (Id.; see also Public Health Amicus at 19-23.)
4. Scope of Relief
The most serious systemic deficiencies noted, and which must be addressed to provide relief to the Subclasses, are as follows: (1) lack of any requirement, to the Court’s knowledge, that Field Offices make individualized custody determinations for at risk detainees, as opposed to a mere request that they do so; (2) discrepancy between the risk factors identified in the Subclass definition and the risk factors triggering individualized custody determinations under the Docket Review Guidance; (3) lack of a performance standard for the safe detention of at risk detainees pending custody decisions, or in the event ICE deems detainees ineligible for release; (4) inconstant adherence to ICE detention standards pertinent to COVID-19. In the Conclusion below, the Court orders relief narrowly tailored to resolve these deficiencies.
Defendants ask that the Court limit the scope of injunctive relief by excluding detainees who have filed separate actions. However, the fact that some detainees have started down one avenue should not prevent ICE from exploring more expeditious paths to relief. See Pride v. Correa, 719 F.3d 1130, 1137 (9th Cir. 2013). In addition, some of those individuals have been or will be denied relief, and will still require safe conditions of confinement.
Until this point, the Order has tended to use a systems perspective, weighing public health or other structural factors. The Court therefore pauses to note the possibility of differences in detainee perspective. To proceed in the safest manner, it would also be in the public interest for FODs adhering to the Docket Review Guidance to consider the willingness of each vulnerable detainee to be released, if this is not considered already. Plaintiffs’ expert declaration notes that “[f]rom a medical and epidemiologic standpoint, people are safer from COVID-19 infection when not detained, and the epidemic curve of COVID-19 on the general

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community is flattened by having fewer people detained.” (Venters Decl. II ¶ 6.) While this may be true as a general proposition, given the many dangers and uncertainties of the pandemic, involuntary release of the most vulnerable detainees could be counterproductive.
Finally, it is possible that Defendants’ actions since the hearing, or actions of which the Court is unaware, have addressed some of the Court’s concerns. However, Defendants’ halting start to pandemic response does not remove the need for preliminary relief, because Defendants have not argued or shown that delays or non-enforcement of ICE facility-wide policies will cease. McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“an executive action that is not governed by any clear or codified procedures cannot moot a claim”).
IV. CONCLUSION
For the above reasons, the Court GRANTS the motions to file amicus briefs. The Court DENIES AS MOOT the ex parte application for leave to file a supplement. The Court GRANTS Plaintiffs’ emergency motion to certify subclasses. A separate order defining the Subclasses and Risk Factors, and appointing representatives and class counsel will issue concurrently. The Court further GRANTS Plaintiffs’ motion for preliminary injunction as follows:
 Defendants shall provide ICE Field Office Directors with the Risk Factors identified in the Subclass definition;
 Defendants shall identify and track all ICE detainees with Risk Factors. Most should be identified within ten days of this Order or within five days of their detention, whichever is later;
 Defendants shall make timely custody determinations for detainees with Risk Factors, per the latest Docket Review Guidance. In making their determinations, Defendants should consider the willingness of detainees with Risk Factors to be released, and offer information on post-release planning, which Plaintiffs may assist in providing;

 Defendants shall provide necessary training to any staff tasked with identifying detainees with Risk Factors, or delegate that task to trained medical personnel;
 The above relief shall extend to detainees with Risk Factors regardless of whether they have submitted requests for bond or parole, have petitioned for habeas relief, have requested other relief, or have had such requests denied;
 Defendants shall promptly issue a performance standard or a supplement to their Pandemic Response Requirements (“Performance Standard”) defining the minimum acceptable detention conditions for detainees with the Risk Factors, regardless of the statutory authority for their detention, to reduce their risk of COVID-19 infection pending individualized determinations or the end of the pandemic;

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 Defendants shall monitor and enforce facility-wide compliance with the Pandemic Response Requirements and the Performance Standard.
These measures shall remain in place as long as COVID-19 poses a substantial threat of harm to members of the Subclasses. The parties may apply to modify or terminate the injunction. IT IS SO ORDERED.

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Case 1:19-cv-01593-JEB Document 68-2 Filed 04/21/20 Page 1 of 4
EXHIBIT 2

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Chad WOLF, et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF ROSE MURRAY, ESQ.

I, Rose Murray, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a direct services attorney working for the Southeast Immigrant Freedom Initiative (“SIFI”). SIFI is a project within the Southern Poverty Law Center (“SPLC”). I am based in Alexandria, Louisiana and I provide legal assistance to immigrants detained at various facilities within the state of Louisiana.
2. The difficulties that I and my colleagues have encountered getting responses from deportation officers and ICE and detention center staff, and a conversation with a deportation officer, it appears that officers on the ground have been overwhelmed and not able to keep up with parole applications being submitted; are not aware when new applications are submitted; are working erratic schedules which seems to create a vacuum of responsibility and confusion over where to send correspondence and parole applications; and an ICE officer mentioned a backlog of physical mail that has not been reviewed for days as well as a backlog of electronic correspondence. I and colleagues

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have called the ICE Oakdale office up to thirty times without answer; and if we do get an answer, the norm is to send us to voicemail boxes of deportations officers that are full; or the call does not get returned. 3. My parole request for client Ms. G, a class member at Adams, sent 4/13/20, is still pending. It does not appear she has been fast-tracked for re-assessment nor independently flagged for re-assessment given her COVID vulnerabilities. It is unclear to me whether anyone has received or read our parole application on her behalf, despite follow-up. We requested humanitarian parole based on to the elevated risk that she faces due to COVID-19. She suffers from the following conditions of which Adams is aware given ICE medical records provided to counsel: uncontrolled diabetes, hypertension, fatty liver disease, and lupus (an auto-immune disorder), all of which make her highly vulnerable to contracting, and potentially dying from, COVID-19; and the fact that her detention is further not in the public interest because she was separated from her minor son when they presented at the border last June and he remains in ORR custody, having no other sponsor in the US. 4. It does not appear that my client, Mr. A, a class member, at Adams, has been flagged or re-assessed for release based on his COVID vulnerability of diabetes, a condition of which Adams is aware, as they are regularly measuring his blood sugar levels. 5. It does not appear that the 4/10 ICE guidance to make strong efforts to implement social distancing in detention centers nor reduce capacity to 75% of the detained population is known or being implemented in this region, as clients across detention centers in the region report small numbers of released individuals per day (usually fewer than 5) and

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continue to report dorms full of 44, 62, 60, 95 people; large groups of up to 1400 eating together in the cafeteria; and no ability to implement social distancing. 6. It does not appear that the ICE guidance to flag for re-assessment within 12 hours those with COVID vulnerable underlying health conditions is known or being implemented in this region at all, based on my coworkers and my experiences with numerous clients and potential clients with COVID vulnerabilities in Adams, LaSalle, Pine Prairie, Winn, Richwood, and South Louisiana (Basile). 7. On January 22, 2020, we submitted a parole request for our Mr. H-R, a class member, who is currently detained at Pine Prairie ICE Processing Center. He has multiple vulnerabilities to COVID-19, including a history of severe heart problems for which he has not received any treatment in ICE custody and a collapsed lung. As of April 20, 2020, his request has not been acknowledged by ICE. I declare under penalty of perjury that the foregoing is true and correct.
Date: April 20, 2020

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EXHIBIT 3

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 Case 1:19-cv-01593-JEB Document 15 Filed 06/28/19 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Ángel Alejandro Heredia Mons, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593 ) ) ) ) ) )

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs respectfully move this court to certify a class pursuant to Rule 23(a) and 23(b)(2)

of the Federal Rules of Civil Procedure and Local Rule 23.1. In support of their motion, Plaintiffs

rely on the accompanying Memorandum, declarations, and exhibits.

A proposed order is attached.

Statement Pursuant to Local Rule 7(m)

Pursuant to Local Rule 7(m), on June 17 and 18, 2019, Plaintiffs’ counsel, Luz Virginia

López, repeatedly attempted to confer with Defendants’ counsel, the Office of Immigration

Litigation, U.S. Department of Justice (“OIL”), to determine whether Defendants would consent

to the relief requested herein. Ms. Lopez left several telephone messages for Sarah B. Fabian,

Lead Attorney at OIL, which have yet to be returned. On June 18, 2019, Ms. Lopez again

contacted OIL and spoke with attorney Kathleen A. Connolly. Ms. Connolly stated that she did

not have the authority to confer on this matter, and informed Ms. Lopez that someone would soon

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contact her to discuss. As of the date of this filing, Defendants’ counsel has not contacted Ms. Lopez to confer about the relief requested herein, despite Plaintiffs’ repeated attempts to confer.

Dated: June 28, 2019
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 East Ponce De Leon Ave, Suite 340 Decatur, GA 30030 Tel: (404) 521-6700 Laura.Rivera@splcenter.org
Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org
*admitted pro hac vice

Respectfully submitted:
//s// Melissa Crow___________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia Lopez* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org Luz.Lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 / fax: (404) 221-5857 Mary.Bauer@splcenter.org

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CERTIFICATE OF SERVICE I hereby certify that, on June 28, 2019, I electronically filed the attached PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION and the related memorandum, proposed order, and exhibits with the Clerk of Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case. I further certify that I emailed a copy of the attached motion and the related memorandum, proposed order, and exhibits to Defendants as follows:

Sara B. Fabian U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 PH: (202) 532-4824 FX: (202) 616-8962 sarah.b.fabian@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Kathleen Ann Connolly U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 PH: (202) 305-8627 FX: (202) 307-8781 kathleen.a.connolly@usdoj.gov
ATTORNEY TO BE NOTICED

Respectfully submitted:
//s// Melissa Crow_____________
Melissa Crow (D.C. Bar No. 453487) SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org

3

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ÁNGEL ALEJANDRO HEREDIAMONS, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593(JEB) ) ) ) ) ) )

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org

Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org

Attorneys for Plaintiffs * Admitted pro hac vice

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 2 of 22
TABLE OF CONTENTS INTRODUCTION……………………………………………………...…………………………1 FACTUAL BACKGROUND……………………………………………………………………. 2 LEGAL STANDARD……..………………………………………………………………………6 ARGUMENT…………………………………………………………………………………..….6 I. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE 23(a).
A. The Proposed Class Satisfies the Numerosity Requirement……………………6, 7 B. The Proposed Class Satisfies the Commonality Requirement…………………….9 C. The Proposed Class Satisfies the Typicality Requirement………………………11 D. The Proposed Class Satisfies the Adequacy Requirement………...…………….13 II. THE PROPOSED CLASS IS ADEQUATELY DEFINED FOR CERTIFICATION…..14 III. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE 23(b)(2)…15 IV. THE COURT SHOULD DESIGNATE PLAINTIFFS’ COUNSEL AS CLASS COUNSEL……………………………………………………………………………….16 CONCLUSION ………………………………………………………………………………….17
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TABLE OF AUTHORITIES
Cases
Abdi v. Duke, No. 1:17-CV-0721 EAW, 2017 WL 6507248 (W.D.N.Y. Dec. 19, 2017) ............2, 10, 16
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................................................................6
Barnes v. District of Columbia, 242 F.R.D. 113 (D.D.C. 2007) ......................................................................................... 14
Brewer v. Lynch, 2015 WL 13604257 (D.D.C. Sept. 30, 2015) ...................................................................15
Bynum v. Dist. of Columbia, 214 F.R.D. 27 (D.D.C. 2003) ..................................................................7, 8, 10, 11, 13, 15
Coleman v. Dist. of Columbia, 306 F.R.D. 68 (D.D.C. 2015) ..............................................................................................7
Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) ....................................................................2, 4, 11, 16
Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006) ............................................................................................7, 8
DL v. Dist. Of Columbia, 302 F.R.D. 1 (D.D.C. 2013) ......................................................................................7, 9, 14
DL v. Dist. of Columbia, 713 F.3d 120 (D.C. Cir. 2013) ......................................................................................9, 10
Feinman v. F.B.I., 269 F.R.D. 44 (D.D.C. 2010) ............................................................................................12
Johnson v. Dist. of Columbia, 248 F.R.D. 46 (D.D.C. 2008) ................................................................. 7, 9, 11, 13, 14, 16
Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998) ..........................................................................................14
R.I.L-R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ........................................................................11, 15, 16
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Richards v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006) ............................................................................................6
Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181 (D.D.C. 2013) ..................................................................................12
Taylor v. Dist. of Columbia Water & Sewer Auth., 241 F.R.D. 33 (D.D.C. 2007) ........................................................................................9, 15
Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014) ....................................................................................14, 15
Twelve John Does v. Dist. of Columbia, 117 F.3d 571 (D.C. Cir. 1997) ..........................................................................................13
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ......................................................................................................6, 10
Statutes 8 U.S.C. § 1158 ...............................................................................................................................6 8 U.S.C. § 1182(d)(5) .....................................................................................................................4 8 U.S.C. § 1225(b)(1)(B) ....................................................................................................... 2, 3, 6
Other Authorities 8 C.F.R. § 1.2 ..................................................................................................................................6 8 C.F.R. § 208.2(b) .........................................................................................................................3 8 C.F.R. § 208.30 ............................................................................................................................3 8 C.F.R. § 208.31 ............................................................................................................................6 8 C.F.R. § 212.5 ..............................................................................................................................4 Fed. R. Civ. P. 23(a)(1) ...........................................................................................................6, 7, 9 Fed. R. Civ. P. 23(a)(2) .............................................................................................................9, 11 Fed. R. Civ. P. 23(a)(3) ...........................................................................................................11, 13
iii

Case 1:19-cv-01593-JEB Document 15-1 Filed 06/28/19 Page 5 of 22 Fed. R. Civ. P. 23(a)(4) .................................................................................................................13 Fed. R. Civ. P. 23(b)(2)........................................................................................................6, 15, 16 Fed. R. Civ. P. 23(g)(1)..................................................................................................................16 Memorandum from John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementi ng-the-PresidentsBorder-Security-Immigration-Enforcement-ImprovementPolicies.pdf ………..............................4 U.S. ICE, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) ........................................................................................3, 4
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INTRODUCTION Plaintiffs file this class action to challenge the policy of the New Orleans Field Office of U.S. Immigration and Customs Enforcement (“ICE”) to categorically deny release from custody to asylum seekers who have shown a credible fear of persecution while their cases are pending. The categorical denial of release on parole contravenes a policy directive requiring ICE officers to release on parole asylum seekers who present neither a flight risk nor a danger to the community. New Orleans ICE Field Office’s no-parole policy also violates the Immigration and Nationality Act (“INA”) and its implementing regulations and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Plaintiffs seek a declaration that the policy is unlawful and an injunction requiring an individualized parole determination for each class member to determine whether he or she poses a flight risk or a danger to the community that justifies his or her detention. Pursuant to Federal Rule of Civil Procedure 23, the named Plaintiffs seek certification of the class set forth below on behalf of all others who are similarly situated. All arriving asylum seekers who: a. are found to have a credible fear of persecution or torture; b. who are or will be detained by U.S. Immigration and Customs Enforcement; c. after having been denied parole under the authority of the New Orleans ICE Field
Office. Plaintiffs’ proposed class satisfies all the requirements of Rule 23(a) and 23(b)(2). With hundreds of class members, the class is sufficiently numerous. The New Orleans ICE Field Office subjects all class members to a common no-parole policy, regardless of where they are detained. Class representatives are subject to the same policy as all class members, and are therefore typical of the class. Class representatives and their experienced counsel will fairly and adequately represent the class. The class is adequately defined for certification. And the New Orleans ICE Field Office has acted on grounds generally applicable to the class through its no-parole policy,
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such that an injunction and declaration with respect to the whole class is appropriate. This and other courts have recently certified or provisionally certified similar classes of asylum seekers with credible fear to whom ICE has denied parole. See Damus v. Nielsen, 313 F. Supp. 3d 317, 322 (D.D.C. 2018) (provisionally certifying class); Abdi v. Duke, No. 1:17-cv-0721 EAW, 2017 WL 6507248 (W.D.N.Y. Dec. 19, 2017). This Court similarly should certify the proposed class and appoint Plaintiffs’ counsel as class counsel.
FACTUAL BACKGROUND Plaintiffs are eleven1 asylum seekers who requested asylum upon arriving at a port of entry to the United States and who are now detained by ICE, under the authority of the New Orleans ICE Field Office). See Declaration of Ángel Alejandro Heredia Mons (“Heredia Mons Decl..” attached hereto as Exh. 1) ¶¶ 4, 13; Declaration of Dayana Mena López (“Mena López Decl.,” attached hereto as Exh. 2) ¶¶ 4, 12; Declaration of Y.A.L. (“Y.A.L. Decl.,” attached hereto as Exh. 3) ¶¶ 4, 11; Declaration of J.M.R. (“J.M.R. Decl.,” attached hereto as Exh. 4) ¶¶ 4, 18; Declaration of P.S.P. (“P.S.P. Decl.,” attached hereto as Exh. 5) ¶¶ 4, 17; Declaration of R.O.P. (“R.O.P. Decl.,” attached hereto as Exh. 6) ¶¶ 4, 12; Declaration of Adrián Toledo Flores (“Toledo Flores Decl.,” attached hereto as Exh. 7) ¶¶ 4, 10; Declaration of Douglas Enrique Puche Moreno (“Puche Moreno Decl.,” attached hereto as Exh. 8) ¶¶ 4, 11; Declaration of M.R.M.H. (“M.R.M.H. Decl.,” attached hereto as Exh. 9) ¶¶ 4, 10, 11; Declaration of F.J.B.H. (“F.J.B.H. Decl.,” attached hereto as Exh. 10) ¶¶ 4, 12; and Declaration of Miguel Angel Girón Martínez (“Girón Martínez Decl.,” attached hereto as Exh. 11) ¶¶ 4, 14. Each Plaintiff was interviewed by an asylum officer pursuant to 8 U.S.C. § 1225(b)(1)(B), and ultimately determined to have a credible fear of persecution or torture. See Heredia Mons Decl.
1 Plaintiff Roland Nchango Tumenta was granted asylum; he is no longer a Plaintiff in this case. 2

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¶¶ 14-17; Mena López Decl. ¶ 15; Y.A.L. Decl. ¶ 12; J.M.R. Decl. ¶ 19; P.S.P. Decl. ¶ 18; R.O.P. Decl. ¶¶ 14-15; Toledo Flores Decl. ¶ 12; Puche Moreno Decl. ¶¶ 13-14; M.R.M.H. Decl. ¶ 12; F.J.B.H. Decl. ¶ 15; Girón Martínez Decl. ¶¶ 14-15. That means “there is a significant possibility, taking into account the credibility of the statements made by [the Plaintiff] in support of the [Plaintiff]’s claim[s] and such other facts as are known to the officer, that [the Plaintiff] could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v); see also 8 C.F.R. § 208.30 (describing credible fear interview and determination process). Each Plaintiff was thus entitled to pursue an asylum claim in removal proceedings before an immigration judge. See 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.2(b).
Although none of the Plaintiff asylum seekers is a flight risk or dangerous, and there is no question as to their identity, all have been detained and denied parole by the New Orleans ICE Field Office. See Heredia Mons Decl. ¶ 20; Mena López Decl. ¶ 21; Y.A.L. Decl. ¶ 17; J.M.R. Decl. ¶¶ 21-24; P.S.P. Decl. ¶¶ 21-22; R.O.P. Decl. ¶ 21; Toledo Flores Decl. ¶¶ 15, 20; Puche Moreno Decl. ¶ 17, 21; M.R.M.H. Decl. ¶¶ 14, 15, 19, 23, 27, 31; F.J.B.H. Decl. ¶¶ 20, 23; Girón Martínez Decl. ¶¶ 17, 20.
Until recently, ICE, bound by a December 2009 Directive, generally released asylum seekers found to have a credible fear of persecution or torture on parole after ICE agents made case-by-case determinations as to whether asylum seekers posed a flight risk or a danger to the community. See ICE Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) (“Parole Directive”). The Parole Directive provides that “when an arriving alien found to have a credible fear establishes . . . his or her identity” and shows “based on the facts of the individual alien’s case... that he or she presents neither a flight risk nor danger to the community, [ICE] should . . . parole the alien on the basis that his or her
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continued detention is not in the public interest.” Parole Directive ¶ 6.2. In recognizing that detention of asylum seekers who do not pose a flight risk or danger is not in the public interest, the Directive implements the parole statute, which provides that the Secretary of DHS “may . . . in his discretion parole into the United States” “any alien applying for admission to the United States” on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5); 8 C.F.R. § 212.5.
The Parole Directive has not been expressly superseded or repealed by any subsequent policy directive or rule. To the contrary, government officials have made numerous statements that the Parole Directive remains in effect. A February 2017 memorandum from former DHS Secretary John Kelly states that the Parole Directive “remain[s] in full force and effect” pending the Secretary’s “further review and evaluation.”2 Counsel for the government also has represented to the Supreme Court and this Court that the Parole Directive “remains in full force and effect.” Supp. Reply Br. for Pets., at 6 n.2, Jennings v. Rodriguez, No. 15-1204 (filed Feb. 21, 2017); Damus, 313 F. Supp. 3d at 340. In spite of that, in November 2018, the New Orleans ICE Field Office issued a written statement to regional immigration practitioners taking the contradictory position that the Parole Directive was dead letter. See Email from New Orleans ICE Field Office to American Immigration Lawyers Association Midsouth Region (attached hereto as Exh. 12).
Like other ICE jurisdictions across the country, the New Orleans ICE Field Office has effectively rescinded the Parole Directive and adopted a de facto policy of detaining all or nearly all arriving asylum seekers with credible fear. In 2016, the New Orleans ICE Field office granted
2 Memorandum from John Kelly, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, at 9-10 (Feb. 20, 2017) (“Kelly Memo”), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-PresidentsBorder-Security-Immigration-Enforcement-Improvement-Policies.pdf.
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75.86 percent of parole requests.3 In 2017, the parole grant rate dropped by 54 points to 21.88 percent.4 In 2018, the parole grant rate plummeted to just two percent, with the New Orleans ICE Field Office granting only two of 130 parole requests.
Beyond the data are the experiences of legal services providers who confirm that the New Orleans ICE Field Office has effectively stopped giving due consideration to parole requests. See Declaration of Allyson Page (“Page Decl.”) ¶ 10; Declaration of Joseph S. Giardina (“Giardina Decl.”) ¶¶ 9, 14; Declaration of Olga Badilla (“Badilla Decl.”) ¶¶ 5, 6; Declaration of Helen Boyer (“Boyer Decl.”) ¶ 17. These attorneys attest to the wholesale turnabout in the New Orleans ICE Field Office’s manner of adjudicating parole requests. See Page Decl. ¶¶ 9-10 (noting that previously, “if an arriving asylum seeker had generally met the requirements outlined for release by the 2009 Parole Memorandum, they would be granted parole by the New Orleans ICE ERO Field Office,” whereas now, “ICE [] no longer grant[s] detainees parole”); Giardina Decl. ¶ 16; Badilla Decl. ¶¶ 10, 12 (attesting to conversation with ICE agent that left her with impression that “it didn’t matter” whether or not she submitted documents in support of parole application); Boyer Decl. ¶¶ 10, 17. The practitioners also have heard directly from ICE officers in the New Orleans ICE Field Office that “there [is] a directive to blanket deny paroles in Louisiana. See Giardina Decl. ¶ 16 (attesting to conversation with ICE agent who explained denial of parole by saying “it was not his call there was a directive to blanket deny paroles in Louisiana”); id. at ¶ 17 (attesting to separate conversation where ICE agent explained “it would be 99% impossible to demonstrate to him that a detainee was not a flight risk or a danger in order for him to grant parole”).
3 Plaintiffs expect to supplement the record with the relevant data in short order. 4 Id.
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In light of this, Plaintiffs move to certify a class consisting of: (1) all arriving asylum seekers5; (2) who are found to have a credible fear of persecution or torture6; and (3) who are or will be detained by ICE; (4) after having been denied parole under the authority of the New Orleans ICE Field Office.
LEGAL STANDARD Federal Rule of Civil Procedure 23 “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). The requirements are two-fold. Under Rule 23(a), Plaintiffs must establish numerosity, commonality, typicality, and adequacy of representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). This “ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). Under Rule 23(b), Plaintiffs must establish one of its three subsections. Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). In this case, Plaintiffs argue that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
ARGUMENT I. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE 23(a).
A. The Proposed Class Satisfies the Numerosity Requirement. The proposed class is “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no specific threshold that must be surpassed in order to satisfy the
5 See 8 C.F.R. § 1.2. 6 See 8 U.S.C. §§ 1225(b)(1)(B)(v), 1158; 8 C.F.R. § 208.31.
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numerosity requirement; rather, each decision turns on the particularized circumstances of the case.” Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 25 (D.D.C. 2006). In this Court, proposed classes of at least 40 members have met the numerosity requirement absent exceptional circumstances. See, e.g., Johnson v. Dist. of Columbia, 248 F.R.D. 46, 52 (D.D.C. 2008); Bynum v. Dist. of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003); Disability Rights Council of Greater Wash., 239 F.R.D. at 25.
Rule 23(a)(1) does not require a showing as to the exact number of class members. See Johnson, 248 F.R.D. at 53, Bynum, 214 F.R.D. at 32. An estimate will suffice so long as it has a reasonable evidentiary basis. Feinman v. F.B.I., 269 F.R.D. 44, 49 (D.D.C. 2010). Courts may “draw reasonable inferences from the facts presented to find the requisite numerosity.” Coleman v. Dist. of Columbia, 306 F.R.D. 68, 76 (D.D.C. 2015).
“Demonstrating impracticability of joinder” for purposes of numerosity “does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.” DL v. Dist. Of Columbia, 302 F.R.D. 1, 11 (D.D.C. 2013) (internal quotation marks and citation omitted), aff’d, 860 F.3d 713 (D.C. Cir. 2017). Relevant factors include the “financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.” Id. (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)).
Here, joinder is impractical firstly because of the number of people suffering from the alleged harms. In 2018 alone, the New Orleans ICE Field Office denied 128 requests for parole by asylum seekers who passed their credible fear interviews. Declaration of Sophie Beiers (“Beiers Decl.”) ¶ 7. This figure, coupled with evidence of the dramatic expansion of detention bed space under the jurisdiction of the New Orleans ICE Field Office over the last two years, means that at
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present, many more asylum seekers with a credible fear have been detained and denied parole
pursuant to the blanket no parole policy. As detailed in Plaintiffs’ Complaint and supported by
news reports, ICE has tripled its capacity to confine people in its custody in Louisiana over the
past several months.
A May 2019 report tallied about 2,800 beds across several local Louisiana jails shifted to
a new use since 2017—to warehouse migrants for ICE: 1,000 in Richwood, 250 in Bossier, 1,000
in Jackson, and 500 at River.7 In Mississippi, under the jurisdiction of the New Orleans ICE Field
Office, up to 1,300 asylum-seekers may be confined in Tallahatchie, a so-called “asylum
processing center.”8 And just this month, local officials announced that the Winn Correctional
Center in Winnfield, Louisiana will confine up to 1,500 migrants for ICE.9 Given this alarming
expansion, many more individuals will become class members in the future. These facts alone
satisfy numerosity. See, e.g., Disability Rights Council of Greater Wash., 239 F.R.D. at 25; Bynum,
7 See Bryn Stole, “As fewer inmates fill Louisiana jails, wardens turn to immigration officials to fill bunks, budgets,” The Advocate (May 9, 2019), available at: https://www.theadvocate.com/new_orleans/news/article_5bda8872-7271-11e9-836ab76530b7c21c.html. See also, KNOE News, “More than a thousand migrant detainees from the border to be housed at the Richwood Correctional Facility,” (April 4, 2019), available at: https://www.knoe.com/content/news/More-than-a-thousand-migrant-detainees-from-the-borderto-be-housed-at-the-Richwood-Correctional-Facility--508150181.html; Noah Lanard, “Louisiana Decided to Curb Mass Incarceration. Then ICE Showed Up.” Mother Jones (May 1, 2019), available at: https://www.motherjones.com/politics/2019/05/louisiana-decided-to-curb-massincarceration-then-ice-showed-up/. 8 See, e.g., Noah Lanard, “ICE is Sending Hundreds of Asylum-Seekers to a Private Prison in Mississippi,” Mother Jones (Feb. 15, 2019) available at: https://www.motherjones.com/politics/2019/02/ice-is-sending-hundreds-of-asylum-seekers-to-aprivate-prison-in-mississippi/. 9 See Juanice Gray, “Immigrant detainees arrive,” Natchitoches Times (June 14, 2019), available at: https://www.natchitochestimes.com/2019/06/14/immigrant-detainees-arrive/; Noah Lanard, “ICE Is Sending Asylum-Seekers to the Private Prison Where Mother Jones Exposed Abuse,” (June 11, 2019), available at: https://www.motherjones.com/politics/2019/06/ice-is-sendingasylum-seekers-to-the-private-prison-where-mother-jones-exposed-abuse/.
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214 F.R.D. at 32; Johnson, 248 F.R.D. at 52; Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007).
Many other reasons make joinder impracticable in this case. Joinder is inherently impracticable where, as here, “the class seeks prospective relief for future class members, whose identities are currently unknown and who are therefore impossible to join.” DL, 302 F.R.D. at 11. Most putative class members have limited financial resources, speak little to no English, and know little to nothing about U.S. immigration law. See Page Decl. ¶¶ 14-15 (“In my experience, parole denial notices are written in English even when the recipients do not speak or read English.”); Badilla Decl. ¶ 4 (“It was also difficult for us to confirm whether the immigrants’ parole requests had in fact been denied because none of the immigrants in the group of 17 we were assisting could read or write English”); id. at ¶ 12 (noting parole clients’ need for pro bono asylum lawyers, and difficulty in navigating legal system); Giardina Decl. ¶ 13. Taken together, these factors create insurmountable obstacles for detained asylum seekers to institute individual suits in defense of the rights asserted in this case.
The proposed class thus satisfies the numerosity requirement of Rule 23(a)(1). B. The Proposed Class Satisfies the Commonality Requirement. Rule 23(a)(2), which requires “questions of law or fact common to the class,” is likewise satisfied. The key to commonality is that class members’ claims must depend on “a common contention [] capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal–Mart Stores, 564 U.S. at 350. Commonality is satisfied where there is a single or “uniform policy or practice that affects all class members.” DL v. Dist. of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013). “[S]o long as a
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single aspect or feature of the claim is common to all proposed class members,” such as a generally applicable policy or practice, “factual variations among the class members will not defeat the commonality requirement.” Bynum, 214 F.R.D. at 33. “Even a single common question will” support a commonality finding. Wal-Mart Stores, 564 U.S. at 359 (internal alternations and citations omitted). For example, a proposed class consisting of illegally detained persons satisfies the commonality requirement even if the class members were detained for different reasons or amounts of time. See Bynum, 214 F.R.D. at 34.
The proposed class here satisfies these requirements. All class members are or will be detained after having been found to have a credible fear of persecution in their home countries. All have been detained pursuant to a “uniform policy or practice” of denying them parole without individualized reviews of flight risk or dangerousness. See DL, 713 F.3d at 128. The class members all challenge the legality of the government’s categorical denial of parole on the same grounds. They all allege that categorical denial of parole violates the INA and its implementing regulations as well as the U.S. Constitution, and that it is an arbitrary and capricious and unlawful departure from ICE’s own Parole Directive. A determination of whether the blanket no parole policy is unlawful on one or more of these grounds will resolve the issues the class is facing “in one stroke.” Wal–Mart Stores, 564 U.S. at 350; see also Abdi, 2017 WL 6507248, at *6 (proposed class satisfies commonality because “this Court’s conclusion that the Buffalo Federal Detention Facility is violating the [Parole] Directive would resolve the . . . claims of all members of the proposed class”).
Plaintiffs have statistical evidence that the Policy has been applied to all class members, each of whom has been (or will be) denied parole pursuant to the Policy. In the New Orleans ICE Field Office, parole grant rates have dropped precipitously. While in past years, the New Orleans
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ICE Field Office paroled nearly all asylum seekers who were found to have a credible fear pursuant to the Parole Directive,10 in 2018, the New Orleans ICE Field Office denied 98.5 percent of the same group’s parole requests pursuant to the Policy. Beiers Decl. ¶ 7. Commonality is satisfied under these circumstances. See Damus, 313 F. Supp. 3d at 335; R.I.L-R., 80 F. Supp. 3d at 182 (commonality satisfied where plaintiffs “have provided ample evidence that nearly every [class member]” has been detained pursuant to policy). The proposed class therefore satisfies the commonality requirement of Rule 23(a)(2).
C. The Proposed Class Satisfies the Typicality Requirement. Plaintiffs’ claims also are “typical of the claims . . . of the class.” Fed. R. Civ. P. 23(a)(3). Typicality means that the representative plaintiffs must “possess the same interest and suffer the same injury” as the other class members. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (internal quotation marks and citations omitted). The typicality and requirements often overlap because both “serve as guideposts” to determine whether a class action is practical and whether the representatives’ claims are sufficiently interrelated with class claims to “fairly and adequately protect[]” absent class members. Id. at 157 n.13. Courts liberally construe the typicality requirement, such that factual variations between the representative plaintiffs and the absent class members “do not negate typicality.” Bynum, 214 F.R.D. at 34. “Rather, if the named plaintiffs’ claims are based on the same legal theory as the claims of the other class members, it will suffice to show that the named plaintiffs’ injuries arise from the same course of conduct that gives rise to the other class members’ claims.” Id. at 35. See also Johnson, 248 F.R.D. at 53 (internal quotation marks and citation omitted).
10 See note 3, supra. 11

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Here, Plaintiffs, the proposed class representatives, have “suffered injuries in the same general fashion as absent class members.” Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 196 (D.D.C. 2013) (internal quotation marks and citation omitted). Like the other putative class members, Plaintiffs, the proposed class representatives, are asylum seekers detained under the authority of the New Orleans ICE Field Office. See Heredia Mons Decl. ¶¶ 4-13; Mena López Decl. ¶¶ 4, 12; Y.A.L. Decl. ¶¶ 4, 11; J.M.R. Decl. ¶¶ 4, 18; P.S.P. Decl. ¶¶ 4, 17; R.O.P. Decl. ¶¶ 4, 12; Toledo Flores Decl. ¶¶ 4, 10; Puche Moreno Decl. ¶¶ 4, 11; M.R.M.H. Decl. ¶¶ 4, 10, 11; F.J.B.H. Decl. ¶¶ 4, 12; Girón Martínez Decl. ¶¶ 4-14. Like the putative class, Plaintiffs have been interviewed by asylum officers and found to have a credible fear of persecution. See Heredia Mons Decl. ¶¶ 14-17; Mena López Decl. ¶ 15; Y.A.L. Decl. ¶ 12; J.M.R. Decl. ¶ 19; P.S.P. Decl. ¶ 18; R.O.P. Decl. ¶¶ 14-15; Toledo Flores Decl. ¶ 12; Puche Moreno Decl. ¶¶ 13-14; M.R.M.H. Decl. ¶ 12; F.J.B.H. Decl. ¶ 15; Girón Martínez Decl. ¶¶ 14-15.
Similarly, the New Orleans ICE Field Office has denied them parole pursuant to its blanket no-parole policy. See Heredia Mons Decl. ¶ 20; Mena López Decl. ¶ 21; Y.A.L. Decl. ¶ 17; J.M.R. Decl. ¶¶ 21-24; P.S.P. Decl. ¶¶ 21-22; R.O.P. Decl. ¶ 21; Toledo Flores Decl. ¶¶ 15, 20; Puche Moreno Decl. ¶ 17, 21; M.R.M.H. Decl. ¶¶ 14, 15, 19, 23, 27, 31; F.J.B.H. Decl. ¶¶ 20, 23; Girón Martínez Decl. ¶¶ 17, 20. The manner in which ICE applied the no-parole policy to Plaintiffs is typical of the way ICE has done so to other putative class members: by failing to grant them parole interviews, imposing deadlines that were unreasonable if not impossible to meet, and issuing them rote denial forms with check boxes marked and no meaningful explanation of the reasons for the denial. See Heredia Mons Decl. ¶¶ 18-22; Mena López Decl. ¶¶ 16, 18-20; Y.A.L. Decl. ¶¶ 14, 1617; J.M.R. Decl. ¶¶ 19-23; P.S.P. Decl. ¶¶ 21-22; R.O.P. Decl. ¶¶ 18-23; Toledo Flores Decl. ¶¶
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15-19, 20-21; Puche Moreno Decl. ¶¶ 16-19, 21; M.R.M.H. Decl. ¶¶ 15-17, 19-20; F.J.B.H. Decl. ¶¶ 19-24; Girón Martínez Decl. ¶¶ 16-20.
Plaintiffs’ claims therefore “arise from the same course of conduct that gives rise to the other class members’ claims,” Bynum, 214 F.R.D. at 35, and are based on the same legal theory as all class members. Accordingly, the proposed class representatives’ claims are “typical” under Rule 23(a)(3).
D. The Proposed Class Satisfies the Adequacy Requirement. The proposed class also satisfies Rule 23(a)(4)’s requirement that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To satisfy this requirement, Plaintiffs must show (1) that there is no conflict of interest between the named members and the rest of the class, and (2) that counsel for the class is competent to represent the class. See Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575-76 (D.C. Cir. 1997); Johnson, 248 F.R.D. at 53-54. No conflict exists between the proposed class representatives and the other class members. The class representatives and the remaining class members have suffered the same injury: they have been denied individualized custody determinations due to the blanket no-parole policy. The class representatives and the remaining class members assert the same legal claims. And they all would benefit from the same declaratory and injunctive relief. Because their interests in this litigation are aligned, there is no conflict of interest between the named and unnamed class members. In addition, proposed class counsel are competent to represent the class. Plaintiffs’ counsel has devoted, and will continue to devote, substantial time and resources to the prosecution of this action. See Declaration of Mary Bauer (“Bauer Decl.”) ¶¶ 5, 6; Declaration of Katie Schwartzmann
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(“Schwartzmann Decl.”) ¶¶ 4-6. They have extensive experience with civil rights and class action litigation. See Bauer Decl. ¶ 5; Schwartzmann Decl. ¶¶ 3, 5. Plaintiffs’ counsel are therefore well qualified to prosecute this action. II. THE PROPOSED CLASS IS ADEQUATELY DEFINED FOR CERTIFICATION.
“It is axiomatic that for a class action to be certified a ‘class’ must exist.” Johnson, 248 F.R.D. at 52 (internal quotation marks and citations omitted). This “common-sense requirement” is not “a particularly stringent test, but plaintiffs must at least be able to establish that the general outlines of the membership of the class are determinable at the outset of the litigation.” Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998) (internal quotation marks and citation omitted). The requirement “is designed primarily to help the trial court manage the class” such that it is not “impossible to determine who is or is not a member of the class.” Id. at 346. But beyond the “general demarcations of the class of individuals who are being harmed,” Thorpe v. District of Columbia, 303 F.R.D. 120, 139 (D.D.C. 2014) (internal quotation marks and citations omitted), “precise ascertainability . . . is not required in cases such as this where only injunctive relief is sought.” DL, 302 F.R.D. at 17.
Here, four objective criteria easily define the outlines of class membership at the outset of the litigation. Class members (1) are arriving asylum seekers; (2) who receive a positive credible fear determination; and (3) are or will be detained by ICE; (4) after having been denied parole by the New Orleans ICE Field Office. These four criteria allow for objective identification of both current class members and future class members. See, e.g., DL, 302 F.R.D. at 10-11 (certifying class of present and “future class members” who will enter preschool with disabilities, but “whose identities are currently unknown”); Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007) (certifying class of current and future prisoners detained beyond their date of release). ICE’s
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monthly reports of its parole decisions regarding class members will further facilitate straightforward identification of all current and future class members and effective management of the class. Cf. Brewer v. Lynch, 2015 WL 13604257, at *7 (D.D.C. Sept. 30, 2015) (class adequately defined when “identifying the class members . . . would take little more than a perusal of the [government’s] records”). Accordingly, the proposed class is adequately defined. III. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF RULE
23(b)(2). The proposed class also satisfies Rule 23(b)(2), which requires that “[t]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Courts in this District have interpreted Rule 23(b)(2) to impose two requirements: “(1) that defendant’s actions or refusal to act are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37; R.I.L-R., 80 F. Supp. 3d at 182. To satisfy Rule 23(b)(2), “it is enough to show that a defendant has acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity.” Bynum, 214 F.R.D. at 37 (internal quotation marks and citation omitted); see also R.I.LR., 80 F. Supp. 3d at 182 (requirements of Rule 23(b)(2) met where class “challenges a policy generally applicable to all class members”) (internal quotation marks omitted); Thorpe v. D.C., 303 F.R.D. 120, 151 (D.D.C. 2014) (proposed class alleging “systemic deficiencies in the District’s system of transition assistance and that those deficiencies appear to be affecting the class” satisfied Rule 23(b)(2)); Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. at 47 (proposed class alleging pattern or practice of discrimination satisfied Rule 23(b)(2)).
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Here, all class members are being detained without individualized parole determinations pursuant to the New Orleans ICE Field Office’s blanket no-parole policy. Class members have suffered a consistent harm, namely the application of this unlawful policy. All class members seek the same declaratory and injunctive relief requiring that parole determinations be made in compliance with the law. In other words, Plaintiffs and other putative class members challenge a Policy generally applicable to the class, and seek declaratory and injunctive relief that will benefit the class as a whole. This is just the sort of claim that satisfies Rule 23(b)(2). See, e.g., Damus v. Nielsen, 313 F. Supp. 3d 317, 335 (D.D.C. 2018) (granting provisional class certification in challenge to Parole Directive); R.I.L-R., 80 F. Supp. 3d at 182 (lawsuit “seek[ing] declaratory and injunctive relief invalidating consideration of [deterrence] factor and enjoining ICE from applying the policy to deny release” “challenges a policy ‘generally applicable’ to all class members” and thus satisfies Rule 23(b)(2)); Abdi, 2017 WL 6507248, at *10 (Rule 23(b)(2) satisfied because “injunctive relief requiring Respondents to conform to the strictures of the [Parole] Directive will be applicable to all proposed class members”). Section 23(b)(2) is likewise satisfied here. IV. THE COURT SHOULD DESIGNATE PLAINTIFFS’ COUNSEL AS CLASS
COUNSEL. Rule 23(g)(1) requires a court that certifies a class to appoint class counsel. Fed. R. Civ. P. 23(g)(1). In appointing class counsel, a court must consider “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Id. The court also may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B); Johnson, 248 F.R.D. at 58.
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For the same reasons that Plaintiffs’ counsel satisfies the adequacy requirement, this Court

should designate Plaintiffs’ counsel as class counsel. See Bauer Decl. ¶¶ 2-6; Schwartzmann Decl.

¶¶ 3-6. For all these reasons, the Court should designate Plaintiffs’ counsel as class counsel.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion should be granted. Plaintiffs respectfully

request that the Court certify the proposed class, consisting of (1) all arriving asylum seekers, (2)

who are found to have a credible fear of persecution or torture, and (3) who are or will be detained

by ICE, (4) after having been denied parole under the authority of the New Orleans ICE Field

Office; and appoint Plaintiffs’ counsel as class counsel.

Dated: June 28, 2019

Respectfully submitted,

Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

//s// Melissa Crow____________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org

Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org

Attorneys for Plaintiffs *Admitted pro hac vice
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ÁNGEL ALEJANDRO HEREDIAMONS, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 1:19-cv-01593(JEB) ) ) ) ) ) ) )

[PROPOSED] ORDER GRANTING CLASS CERTIFICATION Upon consideration of Plaintiffs’ Motion for Class Certification dated June 28, 2019, the memoranda of law and exhibits submitted in support and any in opposition thereto, and the entire record herein, it is hereby ORDERED that Plaintiffs’ Motion for Class Certification, dated June 28, 2019, is GRANTED; it is further ORDERED that Plaintiffs are certified as representatives of a class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The class is defined as: (1) all arriving asylum seekers (2) who are found to have a credible fear of persecution or torture and (3) who are or will be detained by U.S. Immigration and Customs Enforcement (“ICE”); (4) after having been denied parole under the authority of the New Orleans ICE Field Office.

Date: __________________

____________________________ The Honorable James E. Boasberg
United States District Court Judge

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EXHIBIT
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Laura Rivera
From: Sent: To: Subject: Attachments:

Rose Murray <murray.rose@gmail.com> Thursday, November 29, 2018 3:22 PM SIFI Alexandria; Daniel Werner; Laura Rivera Fwd: [midsouth] *** IMPORTANT *** UPDATE FROM ICE ERO 2018 11 29 ICE-AILA Liaison Meeting agenda and questions kam.pdf; New Orleans AOR Docket_AILA_October 2018.pdf

‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: Ana Sardi <ana@mayeauxsardi.com> Date: Thu, 29 Nov 2018 at 13:18 Subject: [midsouth] *** IMPORTANT *** UPDATE FROM ICE ERO To: AILA Mid South Chapter Mailing List <midsouth@lists.aila.org> Cc: Ken Mayeaux <ken@mayeauxsardi.com>
Dear All: I just received this important update from ERO. Enclosed you will find a FULL DOCKET LIST and answers to the questions that were posed at the AILA Liaison meeting in New Orleans. PLEASE READ OF. ACUNAS EMAIL BELOW. Let me know if you have any additional questions.
Ana Maria Sardi, Esq.
Attorney at Law 321 St. Joseph Street Baton Rouge, LA 70802
Main: 225-754-4477 Cell: 225-270-0010 Fax: 225-341-8755

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Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 3 of 9 CONFIDENTIALITY NOTICE: This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
From: Acuna, Brian S <Brian.S.Acuna@ice.dhs.gov> Sent: Thursday, November 29, 2018 1:14 PM To: Ana Sardi <ana@mayeauxsardi.com> Cc: Bowman, Tyrone A <Tyrone.A.Bowman@ice.dhs.gov>; Warren, Scott W <Scott.W.Warren@ice.dhs.gov> Subject: RE: Trey Lund's role
Hello Ana, this is the update. The answers and docket list are attached. Please note on answer #3 we placed the websites for Bossier and Tallahatchie facility information at ICE.gov in highlighted text. Those links can be clicked or simply go to ICE.gov and search the facility.
George Lund is our Acting Field Office Director. Typically attorneys interact with the FOD or his representative if our groups have these meetings like on Nov. 2nd. Individual casework such as detention and removal inquiries are dealt with through the normal process of Deportation Officer, supervisor, and as needed Assistant Field Office Director or NewOrleans.Outreach@ice.dhs.gov.
Thanks and have a great day.
Brian S. Acuna
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations New Orleans Field Office
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Case 1:19-cv-01593-JEB Document 15-3 Filed 06/28/19 Page 4 of 9 (504) 599-7868 (504) 520-0396 [cell] (504) 589-2661 [fax] Brian.S.Acuna@ice.dhs.gov
--You are currently subscribed to midsouth as: [murray.rose@gmail.com] To change your email address go to https://www.aila.org/myaila/account/edit You can also unsubscribe or make changes at https://www.aila.org/MyAila/Account/Listservs If you are on a list you have an account with AILA. If you have never logged into aila.org the forgot password link is https://www.aila.org/MyAila/ForgotPassword Enter the email address that the list is using for you and it will send you a password link. Have problems? Email listservs@aila.org
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ICE ERO – AILA Liaison Meeting – November 2, 2018 AILA Midsouth Meeting – New Orleans
GENERAL QUESTIONS
1) Please give us an organizational update on the ICE staff (ERO) including the names, emails and phone numbers, in particular the deportation officers and supervisors for Memphis, Nashville, Gadsden, Birmingham, Montgomery, New Orleans, Jena and Oakdale and how the dockets are divided. George Lund is the Acting Field Office Director for Alabama, Arkansas, Louisiana, Mississippi and Tennessee. The docket lists are attached.
2) Please give us an organizational update on the ICE OCC attorneys including the names and contact information for New Orleans, Oakdale and Memphis. OCC will cover this.
DETENTION FACILITIES
3) Please identify the detention centers in the New Orleans district at which ICE/ERO is presently detaining noncitizens on a greater than 72-hour basis. For each facility please provide the names and contact information for the warden. Etowah County Detention Center (Gadsden, AL); LaSalle ICE Processing Center (Jena, LA); Pine Prairie ICE Processing Center (Pine Prairie, LA); Allen Parish Public Safety Correctional Complex (Oberlin, LA); Bossier Parish Medium Security Facility (Plain Dealing, LA) Bossier Facility Info; Tallahatchie County Correctional Facility - TASC (Tutwiler, MS) Tallahatchie Facility Info.
a) Please also identify the person at the facility to whom our members should direct inquiries regarding problems with access to counsel or other detention issues?
b) Please also identify the ICE/ERO deportation officer(s) assigned to each facility, and the ICE/ERO officer with supervisory authority over detention operations at each facility. Our ERO staffing assignments are listed on the AILA docket issued to your members
c) Please provide number of ICE beds at Bossier and Tutwiler and explain if ICE is con term facilities and with how many ICE detainees in each long term? Bossier Parish is a local facility. The Tallahatchie Asylum Screening Center is a national facility. ICE is exploring with the appropriate parties on setting up a Legal Orientation Program at the TASC.
d) If in these “secondary” detention locations once CFI is passed are they transferred elsewhere? Where? We advise AILA members to work on each case individually with the assigned ERO Officers, or new field offices in the event of a transfer.
4) How does an attorney schedule an attorney call at Alexandria Staging Facility? Attorneys should request and coordinate calls directly with the assigned Deportation Officer and/or the respective ERO office exercising docket control over those cases.

AILA-ICE New Orleans Liaison Meeting

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DETENTION FACILITIES – CONT’D
5) Please tell us about any new detention facilities being developed or contemplated within the NOLA field office. Is Pine Prairie expanding or Basile reopening? No
6) Can attorneys now schedule attorney calls and in person visits with the facility staff at La Salle? The facility follows the PBNDS 2011 standard for legal visits.
ICE DETAINERS AND HOLDS
7) Please inform members of ICE’s policies and a list of contacts regarding the best practices for gathering information about detained criminal respondents with “Immigration Holds/Detainers.” When the Defendant/Respondent is detained/arrested by local authorities and an Immigration HOLD is placed (sometimes immediately), is there an immigration/deportation officer in charge of that Respondent at that initial moment that will take a G-28, and what is the preferred procedure for accomplishing this? Can contact be made while the State or Federal criminal proceeding is still ongoing? We are experiencing police and Sheriff’s departments that refuse to release or bond out inmates because of an ICE detainer – who do we talk to? Yes. Please contact the local office supervisor to discuss the case.
8) Please inform members of ICE’s policies regarding ICE’s timetable for acquiring jurisdiction over criminal defendants/respondents subject to an Immigration Hold/Detainer once the respondent has been sentenced for a deportable crime that has NO BOND relief. What is ICE’s policy regarding how much time would be allowed for the Defendant/Respondent to serve their sentence before ICE takes jurisdiction over the Defendant/Respondent? What is ICE’s policy regarding criminal defendants/respondents subject to an Immigration Hold/Detainer that have pleaded guilty to a deportable crime with no Bond relief, and who do not wish to fight the case in Immigration court and instead would prefer to just be “Deported”? There is no timing policy for local or state jurisdictions when ICE screens individuals under CAP. ICE staff monitoring federal and Louisiana Department of Corrections under CAP may also process individuals through the Institutional Removal Program.

AILA-ICE New Orleans Liaison Meeting

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November 2, 2018

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PROSECUTORIAL DISCRETION AND JOINT TERMINATION
OCC spoke on Saturday, November 3, 2018, and answered these 9) Overall, what is the preferred procedure to request that OCC agree to re-calendar and/or
jointly terminate where the respondent has relief (i.e. AOS and/or I-601A/CP, etc.)?
10) More specifically, when will ICE exercise PD to jointly terminate proceedings to allow individuals to apply for a 601A waiver? Can they implement guidelines to assist us?
11) For respondents seeking PD, where an NTA has not been filed with the Immigration Court, will ICE/OCC what is the procedure to request that the NTA be cancelled?
12) What is the preferred procedure for escalating PD denials? Can you please provide a chart or list of people with whom to follow-up with in such circumstances?
ISAP AND SUPERVISION POLICIES AND ISSUES
13) What criteria are used to determine whether to arrest someone at a check-in? We have been told by Deportation Officers one factor in an arrest was that the field office now had detention space for our client – is this appropriate? ICE Officers have the discretion to arrest an individual on recognizance or supervision.
14) What are ICE's responsibilities to the children whose parents they arrest if the children are present at a check-in? If an AILA member has a specific problem with a case, they should speak to the local office supervisor.
15) Who makes the decision to arrest? ICE Officers have the discretion to arrest an individual on recognizance or supervision.
16) What criteria are used to determine who goes to ISAP? ICE Officers use the Alternatives to Detention program based on national policy.
17) What is the policy on release of pregnant women? The December 2017 ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees does not mention any provisions for release. ICE Officers have the discretion to release an individual on recognizance or supervision when medically necessary. The ICE policy on care of pregnant detainees is located here: https://www.ice.gov/directive-identification-andmonitoring-pregnant-detainees

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STAYS OF REMOVAL AND ENFORCEMENT OF FINAL ORDERS
18) How do pending applications for benefits factor into decisions whether or not to approve a stay? I'm confident that it's "case-by-case", but I imagine that there are also specific guidelines. There is no set policy for adjudicating stays.
19) More generally, what factors go into deciding whether to deny or approve a stay? ICE does take all equities into account.
20) If someone receives an order of removal from immigration court, at what point will ICE begin enforcement? Will they wait until the 90-day deadline to file a motion to reopen the case? Or is it when the removal order becomes final? ICE works on the arrangements when the order of removal is administratively final.
21) What is the procedure for requesting a GPS bracelet be removed? The Deportation Officer or the local office supervisor can review on a case-by-case basis, if requested.
22) What factors are used in determining whether to place someone on an ankle bracelet as well as when to remove the ankle bracelet? We would refer AILA members to November 2017’s response on this topic.
23) What is the procedure for changing reporting locations for persons on OSUP? Please advise clients to review instructions on Form I-220B.
24) What is the procedure for requesting a credible or reasonable fear interview? Speak to the Deportation Officer.
25) Why isn't ICE issuing bonds and all cases are being sent to the Immigration Judges? ICE Officers have the discretion to set a bond or release an individual on recognizance or supervision after processing, in appropriate cases.
26) Is the 2009 Parole Memo still in effect? If so, what percentages of parole requests are granted by the NOLA Field Office? We have problems contacting the Deportation Officer for these – what can we do? Technically no, by Executive Order. However, there is an injunction in certain field offices outside the New Orleans AOR. We do not have statistics to give out. If you cannot contact the Deportation Officer, please speak with the supervisor or NewOrleans.Outreach@ice.dhs.gov to pass on your parole request.
27) Is the 2011 Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs memo still in effect? No, by Executive Order.
28) Could you please provide us a list of intransigent countries that are not issuing your Field Office travel documents? We do not have information to give out because the field does not work on that aspect of ICE operations.

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*****Other questions from the audience or matters ICE officials wish to bring
to AILA members’ attention*****
29) If an attorney is planning on filing a stay of removal is it enough to call, fax or email a copy of the stay that will be filed to stop a pending removal? If this references a stay of removal at the EOIR or the BIA, no. Only a properly filed motion to reopen with an automatic stay under the law, or a stay motion granted by the court or BIA would be appropriate to halt a removal.
30) On behalf of Catholic Charities would ICE consider reinstating the pilot program for Cuban Nationals in the Baton Rouge area? Can you please clarify ICE’s removal policies on Cuban Nationals? We understand that the Referrals for Community Supported Release Program was a one (1) year pilot program. This was a national program, we would encourage your main Catholic Charities headquarters to speak to ICE headquarters. We would advise AILA members to research current federal regulations and international agreements with respect to the reestablishment of diplomatic relations with Cuba.
31) We are experiencing problems with clients who are reporting to ICE for a number of years and despite that receive an in-absentia removal order – what can we do about that? We request address change information from individuals who report to our offices at each appointment. When a Notice to Appear is filed with the court, and when ICE becomes aware of a change, ICE serves Form I-830 on the court. Respondents who are already in proceedings are responsible for likewise filing Form EOIR-33 with the court. If AILA members begin representation of a client and they are not sure where the court would address the hearing notices, we encourage contact with the Deportation Officer and if needed the Office of the Chief Counsel.

AILA-ICE New Orleans Liaison Meeting

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Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 1 of 5
EXHIBIT
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DECLARATION OF ALLYSON PAGE, ESQ.
l, Allyson Page, Esq., declare as follows:
I make this declaration based on my own personal knowledge and if called to testify l could and would do so competently as follows:
1. I am a staff attorney within the non-profit Immigration Services and Legal Advocacy (ISLA). I provide direct representation to detained immigrants at Pine Prairie ICE Processing Center.
2. In the Spring of 2018, I co-founded ISLA and took a position there as a staff attorney. In that role 1 divided my time between providing representation to detained immigrants in deportation proceedings and working to establish the non-profit and seek private and public funding for a program providing counsel to detained immigrants in the gulf south area.
3. I graduated from Tulane Law School in May 2014. Ln 2015 I began service as an AmeriCorps Equal Justice Works Justice Corps Fellow at Catholic Charities Archdiocese of New
Orleans (CCANO), working in the Immigration Program. At the end of my term, I was hired and
continued to work at CCANO for three years. 1 was admitted to the Louisiana State Bar on December 18, 2014. I am a 2007 graduate of McGill University, where I studied Political Philosophy, History, and Italian.
4. ISLA provides direct representation to detained immigrants at a detention center run by Department of Homeland Security (OHS) Immigration and Customs Enforcement (ICE) at Pine Prairie ICE Processing Center in Pine Prairie, Louisiana.

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 3 of 5
5. ISLA attorneys, including myself, regularly provide prose detainees with legal infonnation and assistance on their cases, including requests for release from detention on parole for "arriving" asylum seekers.
6. Due to my work in immigration detention, l am familiar with ICE policies, including the ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ("Parole Directive").
7. ISLA attorneys, including myself, have provided dozens of arriving asylum seekers with legal assistance on their requests for release from detention under the Parole Directive.
8. In the majority of cases in which I provided guidance to detainees, I would explain to them what types of documents they need to submit in support of their parole request and would help facilitate communication and access between the detainee and their sponsor. In several cases, prepared and submitted the parole request on behalf of the detainee to their ICE Deportation Officer at the ICE New Orleans Field Office.
9. Based on my experience and observations, until early 2017, if an arriving asylum seeker had generally met the requirements outlined for release by the 2009 Parole Memorandum, they would be granted parole by the New Orleans ICE ERO Field Office.
l0. In early 2017, shortly after the beginning of the Trump Administration, we noticed that ICE was no longer granting detainees parole, despite the vast majority of them appearing to meet the 2009 Parole Memorandum criteria.
11. In my experience, ICE provides a Parole Advisal and Scheduling Notification in

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 4 of 5
advance of speaking to the detainee about their request for parole. However, my experience is that this document is generally provided only in English. l have only seen this document written in Spanish one time, despite detainees requesting it be provided in their own language when they do not understand English.
12. In my experience throughout my time working in immigration detention, ICE routinely interviews all arriving asylum seekers after they have received a positive credible fear determination. However, it has been my experience that ICE does not routinely conduct this interview within 7 days of their positive credible fear detennination.
13. It has also been my experience that ICE does not routinely provide detainees with a decision on their parole request within 7 days of this interview.
14. In my experience, parole denial notices are written in English even when the recipients do not speak or read English. As a result, when arriving asylum seekers have notified me and my colleagues that their parole request was denied, we often have to explain the denial notice to them and that they have a right to request a redetermination of that decision.
15. I do not think that prose detainees are equipped to file their own individual lawsuits
or habeas actions to challenge their prolonged detention. I tried to explain this process to many
prose detainees who wanted to challenge their prolonged detention and it proved very difficult. Most arriving asylum seekers do not write or speak English as their first language, so they are not able to make the high-level technical arguments required in such legal contexts. l have never seen someone succeed in pro se habeas action.

Case 1:19-cv-01593-JEB Document 15-4 Filed 06/28/19 Page 5 of 5
16. I reserve the right to amend or supplement this report as appropriate upon receipt of additional infonnation or documents.
Jdeclare under penalty of perjury under the laws of the United States and the District of Columbia that the foregoing is true and correct.
Executed this if.2_ day of l/uM~ ,2019 at /tf-t/A) Ot/'/t1Uf5t /..../1-
Allyson Page, Esq.

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EXHIBIT
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons, et al., on behalf of themselves and others similarly situated,
Plaintiffs,
v.
KEVIN McALEENAN, Acting Secretary of the Dep't of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No . 1: 19-cv-01593 ) ) ) ) ) ) )

DECLARATION OF JOSEPH GIARDINA, ESQ.

I, Joseph Giardina, Esq., declare as follows:

I make this declaration based on my own personal knowledge and if called to testify I could and would do so competently as follows:

1. I am an associate with the Rozas & Rozas Law Firm based out of Baton Rouge, Louisiana.

I provide direct representation to detained immigrants in the State of Louisiana.

2. I have worked at this firm since September 2018 until the present. In this role I mainly focused

my time on detained litigation for Immigration clients

3. I graduated from LSU Law School in May 2017. I was admitted to the Louisiana State Bar in

July 2018. I am a 2012 graduate of LSU College, where I studied History.

4. Our Firm provides direct representation to immigrants detained in the various detention

facilities throughout the State of Louisiana.

5. During the course of my employment at the Firm, I have handled dozens of parole requests to

ICE on behalf of Arriving Aliens.

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6. Due to my work in immigration detention, I am familiar with ICE policies, including the ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ( "Parole Directive"). 7. I, have provided dozens of arriving asylum seekers with legal assistance on their requests for release from detention under the Parole Directive. 8. In the majority of cases in which I provided guidance to detainees, I would explain to them what types of documents they need to submit in support of their parole request and would help facilitate communication and access between the detainee and their sponsor. In my cases, I would prepare and submit the parole request on behalf of the detainee to their ICE Deportation Officer usually at the ICE Oakdale (LA) Field Office. 9. Based on my experience and observations, ICE has not granted a parole request, in the entire State of Louisiana, to any of my clients, despite the vast majority of them appearing to meet the 2009 Parole Memorandum criteria. 10. In my experience, ICE provides a Parole Advisal and Scheduling Notification in advance of speaking to the detainee about their request for parole. However, my experience is that this document is generally provided only in English. I have never seen this document in Spanish, despite detainees requesting it be provided in their own language, when they do not understand English.
11. In my experience throughout my time working in immigration detention, ICE routinely interviews all arriving asylum seekers after they have received a positive credible fear determination. However, it has been my experience that ICE does not routinely conduct this interview within 7 days of their positive credible fear determination.
12. It has also been my experience that ICE does not routinely provide detainees with a
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decision on their parole request within 7 days of this interview. 13. In my experience, parole denial notices are written in English even when the recipients
do not speak or read English. As a result, when arriving asylum seekers have notified me and my colleagues that their parole request was denied, we often have to explain the denial notice to them and that they have a right to request a redetermination of that decision. 14. There have been a number of my clients who clearly meet the ICE protocols, and ICE clearly states in their denials that their policy is usually to release a detainee as long as they show they are not a significant flight risk or danger to the community. 15. While there have been dozens of my clients who warranted a grant of parole, The most jarring example oflCE's blatant disregard of their own policies, occurred with Cuban client of mine. This individual had a grandfather that was granted Asylum in the United States, because he had been a political prisoner. The client's mother had also been granted Asylum along with his younger sister, My client was present for all the interviews and was approved as well, but since the process took 7 years he had turned 21 prior to the approval and had to be left behind. It came as no surprise that the persecution he and his family faced at the hands of the Cuban government only intensified once the rest of his family left for the United States, so even though the client had a pending I-130, he could not wait any longer and asked for Asylum at the border. The client then filed a parole request on his own, it was denied for lack of information provided. Then he hired my Firm, we filed numerous documentation showing his LPR mother, sisters, and U.S. citizen grandfather he would be staying with. ICE took multiple weeks to respond, and when they finally gave a response the box checked was the same answer as the first time. 16. When I tried to contact the officer to inquire as to how this could possibly be the determination seeing as we had provided voluminous documentation, and none of my emails or
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phone calls were returned. I was finally able to go to his field office and pull him out of his office, where he proceeded to tell me that the denial shouldn't have said that it should have been denied for another reason instead, he wouldn't say which one. I discussed with him the evidence we had provided, and asked further what else could ICE possibly want to show someone isn't not a flight risk or danger, if the policy is usually to release people than surely this client fits the criteria? He responded that it was not his call that it was a directive to blanket deny paroles in Louisiana from the New Orleans Field Office Director Trey Lund. When I asked how can I contact him, he responded that it would be impossible, he could not give an email address and there was no line to call. 17. Another instance that should be mentioned, was when I was speaking with an ICE officer I am friendly with about what potentially would he need to grant parole in one of his cases? He said that it would be 99% impossible to demonstrate to him that a detainee was not a flight risk or a danger in order for him to grant parole. Additionally, some officers I have spoken with did not even realize that a judge could not also grant a bond on Arriving Alien cases, and were surprised to learn they had the only say as to if they were granted a parole or not. 18. I will be happy to testify to my experiences if called upon.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

M f : Executed this

day of June, 2019, at (}df!wi

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EXHIBIT
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DECLARATION OF OLGA C. BADILLA
I, Olga C. Badilla, Esq. declare as follows:
I make this declaration based on my own personal knowledge and if called to testify I could and would do so competently as follows:
1. I am an immigration attorney in good standing with the State Bar of California since November 2004. I have been practicing immigration law exclusively for fourteen years. I am a named partner of a private practice and also work on behalf of the Los Angeles LGBT Center. I provide direct representation for immigrants in the Los Angeles area before the Los Angeles Immigration Court.
2. From December 2018 until the present, I assisted 17 LGBTQ immigrants on a pro bono basis with their credible fear interviews and parole requests on behalf of the Los Angeles LGBT Center, along with attorney Cristian Sanchez from RAICES.
3. The 17 immigrants were initially detained at the Tallahatchie County Correctional Facility in Tutwiler, Mississippi. While at the Tallahatchie County Correctional Facility they all received credible fear interviews. All of them were found credible and issued Notices to Appear. After they were found credible, all were given one day to provide documents for parole and then automatically denied one day after they were supposed to provide documents. In one case, the immigrant was able to notify me of his favorable credible fear finding the same day he received the decision, we then emailed the parole documents that night to ICE. The next morning the immigrant informed me he received a letter from the officer stating his parole had been denied.

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4. Initially I believed this was a mistake. In my experience, it is customary for ICE to provide the immigrant with more than one day to submit the parole documents. Neither Cristian nor I were provided a copy of the Notice to Appear, Credible Fear Decision or Parole Advisal and Scheduling Notification, even though we had submitted a G-28 to the corresponding ICE office for the Credible Fear Interview. As a result, many were denied parole in Tallahatchie without us having a chance to submit the required documents. It was also difficult for us to confirm whether the immigrants' parole requests had in fact been denied because none of the immigrants in the group of 17 we were assisting could read or write English; therefore, we had to rely on other immigrants in the facility who could read English to read the document to the immigrants to then in turn communicate the decision to us.
5. The denial of parole was also hard to understand, since in my experience if an immigrant had a favorable credible fear determination and they complied with the requirements as set forth in the Parole Advisal and Scheduling Notification, they would be granted parole, but I soon discovered this was not the case in Louisiana.
6. Prior to this incident, I had called the ICE office under the jurisdiction of the New Orleans Field Office to ask where I would file my clients parole requests. I asked if I could email it to the email at TASC@ice.dhs.gov and the officer stated, sure you can send whatever you want there. Given the tone, I understood this to mean it didn't matter.
7. Also at this time, I was advised by a reporter that the New Orleans ICE Field Office had stated that because the Tallahatchie County Correctional Facility was a transitional place, they could not grant parole.
8. When members of our group were transferred from Tallahatchie County Correctional Facility to other facilities in Louisiana, I submitted a Request for Redetermination of Parole for the 9 immigrants who had sponsors. Two of the initial 17 were sent to a different state, one of which was granted parole, soon after the request was filed.

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9. For all of the parole requests I provided the following: the immigrant's identity documents, with translations, letters from their sponsors, an ID for their sponsors, evidence of either residency or citizenship for their sponsors, a utility bill and financial records. I also provided a letter of support from the Los Angeles LGBT Center and RAICES. We also explained the vulnerability to harm for these LGBTQ immigrants, due to prolonged detention, especially for one of our clients who is a transgender woman. The sponsors for our group included family members as well as friends, including members of the LGBTQ community. I also noted that none of the members of our group had any criminal history and in fact all of them had presented themselves at a U.S. Port of Entry and requested asylum, therefore showing that they intended to comply with the rules as set forth by CBP and ICE.
10. In spite of the New Orleans ICE Field Office acknowledging that these LGBTQ individuals were part of a vulnerable group, all 9 Requests for Redetermination of Parole I submitted were denied. Of the 9, 8 were denied based on the following reason: "You have not established to ICE's satisfaction that you are not a flight risk". Underneath this category, the box was marked for "Imposition of a bond or other conditions of parole would not ensure, to ICE's satisfaction, your appearance at required immigration hearings pending the outcome of your case." No other box was checked. For one individual, the same boxes were checked plus the one for "You did not establish to ICE's satisfaction, substantial ties to the community." This individual's sponsor was his cousin.
11. In one case I sent in my request for Redetermination for Parole, and one month later I had not received a decision. When I made an inquiry, I was asked to resubmit my request and the next day I received the decision denying my request.
12. Throughout their detention the group has suffered from daily verbal abuse, being called faggots and being treated differently. After my clients began informing me of incidents of harassment, assaults and threats, I again asked that my requests for parole for the group be reconsidered, and I was told within a day that my request had been reviewed and denied. Some members of the group have opted to be in segregation for safety reasons,

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while others have chosen to endure the abuse knowing that parole is not an option. This has taken a toll on all of them, they feel helpless and are constantly in fear of being harmed or ridiculed it has also made finding pro bono representation for their asylum cases virtually impossible.
13. I reserve the right to amend or supplement this report as appropriate upon receipt of additional information or documents.
I declare under penalty of perjury under the laws of the United States and the District of Colombia that the foregoing is true and con-ect. Executed this 29th day of May, 2019 in Burbank, CA.
Olga~A:dilla, Esq.

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DECLARATION OF HELEN H. BOYER, ESQ. I, Helen H. Boyer, Esq., make this declaration based on my own personal knowledge and if called to testify I could and would do so competently as follows:
1. I am a staff attorney with Al Otro Lado, Inc. in Los Angeles, California. I provide direct representation to detained and non-detained immigrants in the southern California area. Additionally, I currently have two clients who are detained in Louisiana. I have served in this role since November of2018.
2. I graduated from University of California, Irvine School of Law in May 2018. I was admitted to t?e Pennsylvania State Bar on October 16, 2018. I am a 2012 graduate of American University, where I studied political science and gender studies.
3. Al Otro Lado is a bi-national, direct legal services non-profit organization serving indigent deportees, migrants, and refugees in Mexico and the United States. Al Otro Lado attorneys, including myself, provide representation to detained immigrants at several detention centers run by the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE), primarily in California. However, due to the increase in ICE detention centers in Louisiana, Al Otro Lado has begun representing a limited number of immigrants in their parole applications with the New Orleans ICE Field Office.
4. Due to my work in immigration detention, I am familiar with ICE policies, including ICE Policy Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ("Parole Directive"). For example, I am aware that the Parole Directive states that ICE "shcruld, absent additional factors[] , parole the alien on the basis that his or her continued detention is not in the public interest."

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5. I have represented two arriving asylum seekers in their requests for release from detention in Louisiana under the Parole Directive. Additionally, I have provided legal assistance to several arriving asylum seekers seeking release from detention under the Parole Directive in detention centers under the jurisdictions of the San Diego and San Antonio ICE Field Offices.
6. I currently represent M.R.M.H., an arriving asylum seeker who has been detained at LaSalle ICE Processing Center in Jena, Louisiana since May 6, 2019. He Vfas previously detained at River Correctional Center in Ferriday, Louisiana (February 20, 2019 to May 6, 2019) and Tallahatchie County Correctional Facility in Tutwiler, Mississippi (early January 2019 to February 20, 2019). I began representing M.R.M.H. in early March 2019 for the limited purpose of his parole requests.
7. M.R.M.H. is an arriving asylum seeker with no criminal history in the U.S. or in any country in the world. He presented himself at the San Ysidro Port of Entry to seek asylum because he suffered persecution in his home country. He testified to this persecution in his Credible Fear Interview and was found by USCIS to have a credible fear of persecution and torture in his country of origin.
8. Since March 4, 2019, I have submitted three parole requests to the New Orleans ICE Field Office on M.R.M.H.'s behalf.
9. On March 4, 2019, I submitted a parole request on M.R.M.H. 's behalf, which included M.R.M.H.'s birth certificate, a letter from his Milwaukee-based sponsor, a copy of his sponsor's U.S. passport and financial documents, and a letter of support from M.R.M.H.'s U.S. Citizen friend. On March 20, 2019, I received a "Notification Declining to Grant Parole" from Acting Field Office Director George H. Lund, III, denying M.R.M.H. 's parole because "[i]mposition of a bond or other conditions of parole would

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 3 of 6
not ensure, to ICE's satisfaction, [M.R.M.H.'s] appearance at required immigration hearings pending the outcome of [his] case." 10. On or around April 7, 2019, M.R.M.H. began experiencing life-threatening health problems, including anaphylaxis. Due to the severe and delicate nature ofM.R.M.H.'s health, on April 8, 2019 I submitted a request for reconsideration of parole on M.R.M.H.'s behalf, which included the original supporting documents as well as additional information about his medical situation, a copy of the asylum officer's determination of M.R.M.H.'s credible fear of persecution and credibility of identity a letter from M.R.M.H.'s attorney for Immigration Court, and letters of support from a Catholic priest in his sponsor's community, a Milwaukee-based immigrant rights organization, his sponsor's two U.S.-citizen step-daughters, and M.R.M.H.'s Nevadabased family member. Despite this additional evidence and M.R.M.H.' s troubling health situation, ICE denied M.R.M.H.'s request for reconsideration on April12, 2019. Its response was in the form ofa brief email, which lacked any reasoning in line with the Parole Directive. The email denial simply stated, "Your previous parole request was denied. You have spoken to the case officer. ERO New Orleans sees you are trying to request a 2nd time. Your clients next hearing with DOJ EOIR will be on May 28, 2019. At this point, ERO will not consider release on parole. Your client will remain in custody pending the determination from the IJ." 11. On April 17, 2019, I submitted a Request for Release Under Order of Supervision Due to Urgent Humanitarian Concerns to the New Orleans ICE Field Office. In this Request, I included additional information about M.R.M.H. 's medical situation, and again reiterated the urgent nature of M.R.M.H. 's situation and his lack of flight risk and criminal history. On May 1, 2019, I filed additional documentation in support of my April 17th request,

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 4 of 6
including a medical report from a doctor who conducted an evaluation ofM.R.M.H. on April 30th, and a letter from another doctor who had reviewed M.R.M.H.'s medical records. Both letters urged that M.R.M.H. be released from detention due to his medical needs. On May 2, 2019, I received an email from a Supervisory Detention and Deportation Officer denying M.R.M.H.'s release, stating, "[a]t this point however, I must point out that M.R.M.H. is not eligible for release on an Order of Supervision as he is not a final order of removal." 12. In addition to the multiple denials ofM.R.M.H.'s parole requests, ICE has failed to provide M.R.M.H. with adequate medical care, despite two independent doctors expressing concern about his wellbeing. M.R.M.H. has been hospitalized on multiple occasions after experiencing anaphylaxis due to food allergies. Despite his allergies M.R.M.H. reports that detention officials continue to serve him plates of food containing his allergens. As a result, M.R.M.H. often skips meals to avoid potential medical emergencies. 13. Furthermore, M.R.M.H. is being kept in solitary confinement under "medical observation," which concerns me due to his experiences with trauma. He has told me that he is suffering from anxiety, depression, nightmares, and flashbacks. This is exacerbated by his isolation in solitary confinement, where he has been held since he was transferred to LaSalle ICE Processing Center on May 6, 2019. It is my understanding that he remains in solitary as of the present date. 14. I also currently represent an arriving asylum seeker who has been detained in DHS custody since early March 2019. He was previously detained under the jurisdiction ofthe San Antonio ICE Field Office, along with three of his family members. While his three family members were quickly paroled out of custody, my client was transferred to

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 5 of 6
Tallahatchie County Correctional Facility before he was able to apply for parole. He was
later transferred to Richwood. 15. Like M.R.M.H., this client is an arriving asylum seeker with no criminal history in the
U.S. or in any country in the world. He presented himself at the San Ysidro Port of Entry to seek asylum because he suffered persecution in his home country. He testified to this persecution in his Credible Fear Interview and was found by USCIS to have a credible fear of persecution and torture in his country of origin. 16. I submitted a parole request for this client on May 8, 2019, and included a copy ofthe client's birth certificate, a letter from his U.S. Citizen sponsor and his sponsor's U.S. Citizen roommate, and a copy of his sponsor's proof of income, proof of residence, and proof of U.S. citizenship. On May 28, 2019, I followed up on the request because I had not heard the results of the request. It is my understanding that this request remains pending as of the present date. 17. In my experience with this case, the New Orleans ICE Field Office has created insurmountable barriers for arriving asylum seekers to gain release from detention under the Parole Directive. It is unclear to me how any arriving asylum seeker without a criminal record would be able to prove, to New Orleans ICE officials' satisfaction, that they are not a flight risk and thereby should be released under the Parole Directive. In fact, based on my observations, it appears that the New Orleans ICE officials are not giving due consideration to parole applications. 18. I reserve the right to amend or supplement this report as appropriate upon receipt of additional information or documents. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge.

Case 1:19-cv-01593-JEB Document 15-7 Filed 06/28/19 Page 6 of 6

ecuted this Ja day of JlAM -!1 _

' 2019 in ~ B«rM, Cit .
~l(fLer,Esq.

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EXHIBIT
17

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Case 1:19-cv-01593-JEB Document 15-9 Filed 06/28/19 Page 1 of 3
EXHIBIT
18

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons, et al., on behalf of themselves and others similarly situated,
Plaintiffe,
v. KEVIN McALEENAN, Acting Secretary of the Dep't of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593 ) ) ) ) ) ) )

DECLARATION OF KATIE SCHWARTZMANN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I, Katie Schwartzmann, declare:

1. I am an attorney and Legal Director for the American Civil Liberties Union of Louisiana ("ACLU of LA") in New Orleans, Louisiana. I submit this declaration in support of Plaintiffs' Motion for Class Certification.

2. I graduated from Tulane University School of Law in May 2003 and have been a practicing attorney for over 15 years. I am admitted to practice in the state of Louisiana, including the United States District Courts for the Eastern, Western and Middle Districts of Louisiana. I am also admitted to practice in the U.S. Court of Appeals for the Fifth Circuit.

3. During the past decade, I have practiced solely in the area of civil rights and civil liberties, almost exclusively in Louisiana federal courts. For six years I served as the Legal Director for the ACLU of LA. In that capacity, I served as lead counsel in numerous federal cases, including briefing and argument before the Fifth Circuit Court of Appeals. Subsequent to my work at the American Civil Liberties Union I was the Director of the Southern Poverty Law Center's Louisiana office, and I also served as founding co-director of the Roderick and Solange MacArthur Justice Center in New Orleans before assuming my role as ACLU of LA Legal Director in December 2018.

4. I am experienced in handling complex prisoners' rights matters. I served as counsel in many prison-related lawsuits, including Morgan v. Gusman, No. 2:06-cv-05700 (E.D.

1

Case 1:19-cv-01593-JEB Document 15-9 Filed 06/28/19 Page 3 of 3
La. 2006); Terry v. City of New Orleans, 2:07-cv-00469 (E.D. La. 2007); Brown v. Normand, 2:09-cv-03805 (E.D. La. 2009); Advocacy Center v. Louisiana DHH, 2:10cv-01088 (E.D. La. 201 O); Mason v. Tangipahoa Parish Council, 2: 11-cv-00157 (E.D. La. 2011); Leonard v. Louisiana, 5:07-cv-00813 (W.D. La. 2007); Leger v. State of Louisiana DOC, 3:08-cv-00820 (M.D. La. 2008); Anderson v. State ofLouisiana, 3:09cv-00075 (M.D. La. 2009); and Billizone v. LeBlanc, 3:09-cv-00794 (M.D. La. 2009).
5. In addition to prison-related litigation, I have been lead counsel in many other civil rights cases in federal courts, on matters involving freedom of speech, freedom of religion, due process oflaw, and police misconduct, including Social Aid and Pleasure Club Task Force v. City ofNew Orleans, 2:06-cv-10057 (E.D. La. 2006); Henry v. City ofNew Orleans, 2:07-cv-01425 (E.D. La. 2007); Social Aid and Pleasure Club Task Force v. City ofNew Orleans, 2:08-cv-09738 (E.D. La. 2008); Elloie v. City ofNew Orleans, 2:07-cv-03231 (E.D. La. 2007); Houston v. City of New Orleans, 2:09-cv4245 (E.D. La. 2009); Griffith et al. v. Hughes et al. , 2:07-cv-09738 (E.D. La. 2007); Cooper v. Gee, 14-cv-507 (M.D. La. 2014); and Fontana v. New Orleans et al., 2:19cv-09120 (E.D. La. 2019).
6. I served as class counsel in a challenge to the conditions of confinement in Orleans Parish Prison, Jones v. Gusman, 12-cv-0859 (E.D. La. 2012), securing a consent judgment for 2,000 class members. Other class-action experience includes Berry v. Pastorek, 2: 10-cv-04049 (E.D. La. 2010) (suit on behalf of New Orleans public school students with disabilities, consent judgment reached); Dear v. Shea, 2:07-cv-01186 (E.D. La. 2007) (suit on behalf of indigent defendants ordered to pay fines or face jail time, settled prior to class briefing); Snow v. Lambert, No. 3: l 5-cv-00567 (M.D. La. 2015) (challenging pretrial detention practices in Ascension Parish). I am presently counsel in a putative class-action challenging prisoners' access to mental-health services and treatment at David Wade Correctional Center, Tellis v. LeBlanc et al., No. 5:18-cv-00541 (W.D. La. filed Feb. 20, 2018), and I am currently counsel in a class action challenging bail practices in Orleans Parish criminal courts. Caliste et al. v. Cantrell, 2:17-cv-06197 (E.D. La. 2018).
7. In this litigation, I am supervising ACLU of LA Staff Attorney Bruce Hamilton, who is highly qualified and has substantial litigation experience.
8. The ACLU of LA does not charge its clients for its services, including the clients in this case who are being represented on a pro bono basis.
I swear under penalty of perjury that the information in this affidavit is true to the best of my memory, knowledge and belief.
Date: June 11 , 2019
2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Ángel Alejandro Heredia Mons, et al., on

)

behalf of themselves and others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

Kevin K. McALEENAN, Acting Secretary of

) )

the Dep’t of Homeland Security, in his official )

capacity, et al.,

)

Defendants.

) )

Civil Action No. 1:19-cv-01593-JEB

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUCTION

Plaintiffs, Angel Alejandro Heredia Mons1, Dayana Mena López, Y.A.L., J.M.R., P.S.P., R.O.P., Adrián Toledo Flores, Douglas Enrique Puche Moreno, M.R.M.H., F.J.B.H., and Miguel Angel Giron Martinez, hereby move, on behalf of themselves and a class of similarly situated individuals, for a preliminary injunction to enjoin Defendants Kevin K. McAleenan, sued in his official capacity as the Acting Secretary of the Department of Homeland Security (“DHS”); Matthew T. Albence, sued in his official capacity as Acting Director for U.S. Immigration and Customs Enforcement (“ICE”); Nathalie R. Asher, sued in her official capacity as Acting Executive Associate Director for ICE Enforcement and Removal Operations; and George H. Lund, III, sued in his official capacity as Director of the New Orleans Field Office of ICE, from continuing to apply and implement their policy and practice of detaining asylum

1 The Board of Immigration Appeals has recently denied Plaintiff Angel Alejandro Heredia Mons’s asylum appeal, and he is now subject to a final deportation Order; Plaintiff Ronald Nchango Tumenta was recently granted asylum and was released from detention.
1

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seekers without individualized consideration of flight risk or danger to the community. As further explained in the accompanying Memorandum, the NOLA ICE Field Office has abdicated its responsibilities pursuant to ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009), the Immigration and Nationality Act, and its implementing regulations, and should therefore be set aside under the Administrative Procedure Act. The Deterrence Policy also violates the Due Process Clause of the Fifth Amendment to the United States Constitution. A preliminary injunction is warranted to prevent severe and irreparable harm to Plaintiffs, and to many others similarly situated who are, or will soon be, subject to this illegal and harmful conduct. In support of this Motion, Plaintiffs rely upon the accompanying Memorandum, declarations, and exhibits. A proposed order is attached for the Court’s convenience.
STATEMENT PURSUANT TO LOCAL RULE 7(m) Pursuant to Local Rule 7(m), Plaintiffs’ counsel conferred with Assistant U.S. Attorney Jeremy Simon of U.S. Attorney’s Office for the District of Columbia, to determine if Defendants would consent to the relief requested in this motion. Mr. Simon informed Plaintiffs’ counsel that Defendants oppose Plaintiffs’ Motion. Wherefore, Plaintiffs respectfully request that this Court grant this Motion.
Dated: July 18, 2019
Respectfully submitted,
2

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Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

__//s// Melissa Crow_________________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org
Attorneys for Plaintiffs *Pro Hac Vice applications forthcoming

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CERTIFICATE OF SERVICE I hereby certify that, on July 18, 2019, I electronically filed the attached PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUCTION with related memorandum, proposed order, and exhibits with the Clerk of Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.
Respectfully submitted: //s// Melissa Crow_____________
Melissa Crow (D.C. Bar No. 453487) SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, 7th Floor Washington, DC 20036 Tel: (202) 355-4471 Melissa.Crow@splcenter.org
4

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Ángel Alejandro Heredia Mons, et al., on behalf of himself and others similarly situated,
Plaintiffs,
v. KEVIN McALEENAN, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:19-cv-01593(-JEB) ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 2 of 39
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ....................................................................................................... 4
A. Legal Framework Governing Parole Decisions........................................................... 4 1. INA and Implementing Regulations ................................................................................. 4 2. The Parole Directive ........................................................................................................ 5
LEGAL STANDARD ................................................................................................................. 17 A. Preliminary Issues............................................................................................................ 17 1. Jurisdiction..................................................................................................................... 17 2. Legal Requisites for Establishing a Preliminary Injunction .......................................... 18
ARGUMENT............................................................................................................................... 18 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.............................. 18 A. Plaintiffs are Likely to Show That the NOLA ICE Field Office’s Departure From the Parole Directive Violates the APA, Being Arbitrary, Capricious, and Contrary to Law. ................................................................................................................. 18 B. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the INA and Its Implementing Regulations, and It Implicates Constitutional Concerns. 24 C. NOLA ICE’s Refusal to Abide by the Parole Directive Violates the Due Process Clause.................................................................................................................................... 29 1. Arriving Asylum Seekers Are Protected by the Due Process Clause. ............................ 29 2. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the Due Process Clause. ..................................................................................................................... 31 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF. ................................................................................................................................... 31 III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST BOTH FAVOR INJUNCTIVE RELIEF. ......................................................................................................... 33
CONCLUSION ........................................................................................................................... 34
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TABLE OF AUTHORITIES
Cases
Abdi v. Duke, 280 F. Supp. 3d 373 (W.D.N.Y. 2017) ........................................................... passim Ahad v. Lowe, 235 F. Supp. 3d 676, 687-88 (M.D. Pa. 2017)................................................ 29, 30 Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 372-75 (1998) ........................... 23 Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) ....................... 23 Bellarno Int’l Ltd. v. Food & Drug Admin., 678 F. Supp. 410, 415 (E.D.N.Y. 1988) ................. 21 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)......... 31, 32 Clark v. Martinez, 543 U.S. 371, 381 (2005) ............................................................................... 27 Damus v. Nielsen, 313 F. Supp. 3d 317, (D.D.C., 2018) ....................................................... passim Diaz v. Schiltgen, 946 F. Supp. 762, 764-65 (N.D. Cal. 1996)............................................... 25, 28 Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977).................................................................. 19 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) ............................................. 22 Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) ........... 22, 23 Hernandez v. Sessions, 872 F.3d 976, 995-96 (9th Cir. 2017) ..................................................... 33 Hubbard v. EPA, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986) ............................................................... 29 Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) .......................................................... 24, 27, 28 Jennings, 2017 WL 727754, at *6 (Feb. 21, 2017)................................................................. 21, 23 Lopez v. Fed. Aviation Admin., 318 F.3d 242, 247 (D.C. Cir. 2003) ........................................... 20 Maldonado v. Macias, 150 F. Supp. 3d 788, 800 (W.D. Tex. 2015)............................................ 29 Marczak v. Greene, 971 F.2d 510, 515 (10th Cir. 1992) .............................................................. 25 Mass. Fair Share v. Law Enf. Assistance Admin., 758 F.2d 708, 711 (D.C. Cir. 1985)............... 19 McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988) ..................... 21, 26 Morton v. Ruiz, 415 U.S. 199, 235 (1974) .............................................................................. 19, 20 Nat’l Venture Capital Ass’n v. Duke, 2017 WL 5990122, at *1 (D.D.C. Dec. 1, 2017) .............. 24 Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) .............................................................................. 29 O’Donnell Const. Co. v. D.C., 963 F.2d 420, 429 (D.C. Cir. 1992)............................................. 33 R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015) ................................................ passim Rosales-Garcia v. Holland, 322 F.3d 386, 408 (6th Cir. 2003) ............................................. 29, 30 Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) ....................................... 33, 34 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ......................................... 30, 31 Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010)............................................................ 18 Trudeau v. FTC, 456 F.3d 178, 190 (D.C. Cir. 2006) .................................................................. 29 U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232, 1235 (D.C. Cir. 1994)............................................. 21, 26 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68 (1954) ......................... 19, 20 United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1988).................................................... 32 Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 929, 934-95 (D.C. Cir. 2008) ............. 23 Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985)....... 31, 32 Zadvydas v. Davis, 533 U.S. 678 (2001) ............................................................................... passim
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Statutes § 1252(a)(2)(B)(ii) ........................................................................................................................ 18 5 U.S.C. § 706(2)(A)..................................................................................................................... 18 8 U.S.C. § 1101............................................................................................................................... 3 8 U.S.C. § 1182(d)(5) ................................................................................................................... 26 8 U.S.C. § 1182(d)(5)(A) .................................................................................................... 5, 24, 25 8 U.S.C. § 1225(b)(1)(B)(ii) ..................................................................................................... 4, 24 8 U.S.C. § 1225(b)(1)(B)(v) ........................................................................................................... 4 Other Authorities Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102................................................ 34 U.S. ICE, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of
Persecution or Torture (Dec. 8, 2009)............................................................................... 5, 6, 13 Rules 8 C.F.R. § 208.30(f) ........................................................................................................................ 4 8 C.F.R. § 212.5(b) ............................................................................................................. 5, 20, 26 8 C.F.R. § 212.5(b)(5)................................................................................................................... 26 8 C.F.R. § 235.3(c).......................................................................................................................... 5
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INTRODUCTION For the reasons delineated in this Court’s decision in Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018),), and in this brief, Plaintiffs move this Court to grant their request for a preliminary injunction requiring the U.S. Department of Homeland Security’s (“DHS”) component, the New Orleans Field Office of U.S. Immigration and Customs Enforcement (“NOLA ICE”), to immediately comply with the principles and procedures governing the release from detention of asylum-seekers, otherwise known as the “Parole Directive.” As this Court recently noted, the Parole Directive “establishes the process by which ICE must determine whether an individual who has passed a credible-fear interview—the first step toward gaining asylum status—will be released from detention on parole pending a full hearing.” Id. at 323. The facts of this case are virtually the same as Damus’s, as Plaintiffs assert that NOLA ICE officials have denied their parole requests—and in some cases, access to the parole process altogether—in violation of the Administrative Procedure Act, the Immigration and Nationality Act, and the Due Process Clause of the Fifth Amendment. Fewer than ten years ago, ICE paroled roughly 90 percent of asylum seekers. Id. Now, nationwide parole release rates have plummeted. In no jurisdiction is the parole release rate lower than in DHS’s NOLA ICE Field Office, where, across the five states under its jurisdiction— Alabama, Arkansas, Louisiana, Mississippi, and Tennessee—only two (2) of 130 (1.5 percent) parole requests were granted in 2018. Dkt. 2, ¶ 2. NOLA ICE officials have continued to openly disavow their obligations under the Parole Directive, despite scienter of this Court’s July 2, 2018 preliminary injunction order, and affirmations and representations by NOLA ICE officials that the Parole Directive remains in effect. NOLA ICE officials are fully aware that this Court granted Damus Plaintiffs’ request for a preliminary injunction directing DHS “to comply with the Parole Directive, and to provide
1

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individualized parole determinations” to asylum seekers. Id. In November 2018, just a few months after this Court’s issuance of the Damus preliminary injunction, a high-ranking NOLA ICE official represented to a nationally-recognized organization of immigration lawyers that the Parole Directive was no longer in effect by “executive order” in the NOLA ICE Field Office, but remained in effect in other field offices due to an injunction (presumably the one issued by this Court in July 2018). Dkt. 15-3, Exh. 12; Dkt. 2, ¶¶ 3-4. As recently as February 2017, then-DHS Secretary John Kelly wrote that the Parole Directive “shall remain in full force and effect.” Dkt. 2, ¶ 5. Over the past year, DHS has represented to the U.S. Supreme Court and this Court in briefs and oral argument that the Parole Directive remains binding policy upon ICE. Id.
Detaining asylum seekers without affording them individualized review of their parole requests, including an assessment of whether they are flight risks or dangers to the community, violates the Parole Directive. As in Damus, these Plaintiffs present evidence that they are likely to succeed on the merits of their claims. NOLA ICE’s total disregard of the Parole Directive has resulted in the prolonged detention of asylum seekers, absent a minimally sufficient determination by ICE that an individual asylum seeker poses a flight risk or a danger to the community, as required by the Parole Directive.
While the Government continues to represent to federal courts, including the U.S. Supreme Court, that the Parole Directive remains in full force and effect, and the law unequivocally requires that government agencies follow their own rules, NOLA ICE officials violate the Parole Directive every day. In granting Damus Plaintiffs’ request for a preliminary injunction, this Court joined another federal court in holding that ICE field offices unlawfully violate the Parole Directive by failing to provide individualized parole reviews to determine whether detention of asylum seekers was justified based on flight risk or danger to the community. See Abdi v. Duke, 280 F. Supp. 3d
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373 (W.D.N.Y. 2017). Plaintiffs present evidence that is virtually the same as the Damus plaintiffs, and therefore urge this Court to reach the same conclusion and preliminarily enjoin NOLA ICE’s violations of the Parole Directive.
Moreover, detention of asylum seekers without considering whether they pose flight or security risks also violates the Immigration and Naturalization Act, 8 U.S.C. § 1101, et seq. (“INA”) and regulations promulgated thereunder. In Jean v. Nelson, the Supreme Court held that a predecessor version of the INA’s parole provision requires immigration authorities to “make individualized determinations of parole.” 472 U.S. 846, 857 (1985). The current version of the parole statute contains the same operative language that formed the basis for the Supreme Court’s ruling in Jean and thus likewise mandates “individualized determinations of parole.” Id. Pursuant to INA regulations, such individualized review must be based on flight risk, danger to the community, and the public interest. Rather than conducting such individualized assessments, however, Defendants instead are unlawfully denying parole to virtually all asylum seekers in their jurisdiction.
Finally, detaining asylum seekers without considering whether detention is necessary based on the specific circumstances of each individual’s case violates the Due Process Clause. Each additional day of detention exacerbates ongoing irreparable harm to these individuals, who may be detained for many months—or even years. Absent Damus-like intervention by this Court, hundreds more asylum seekers detained by NOLA ICE will suffer the same fate. No public interest justifies such unlawful detention. Accordingly, the Court should preliminarily enjoin Defendants’ violations of the Parole Directive in the NOLA ICE Field Office, and require that Plaintiffs and other proposed class members receive individualized determinations of flight risk and danger to the community before they continue to be detained.
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Plaintiffs are asking this Court for “no more than [to] hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance.” Damus, 313 F. Supp. 3d at 323.
FACTUAL BACKGROUND A. Legal Framework Governing Parole Decisions
1. INA and Implementing Regulations The INA requires that a person who requests asylum at a port of entry to the United States undergo an interview with an immigration officer and demonstrate a credible fear of persecution in his or her home country, meaning there is a “significant possibility” that the individual is eligible for asylum. 8 U.S.C. § 1225(b)(1)(B)(v). If an individual establishes a credible fear of persecution, he or she is entitled to a hearing before an immigration judge to adjudicate the asylum claim. See id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). The time from an asylum seeker’s credible fear interview with an immigration officer to a decision on his or her asylum claim by an immigration judge is typically several months. See, e.g., Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 18, 23; Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 15, 24; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 12, 18; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 18, 24; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶¶ 18, 23; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶¶ 15-16, 26; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 12, 19; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶¶ 13, 20; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 13, 33; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 15, 29; Dkt. 16-11, Exh. 11, Girón Martínez Dec. ¶¶ 15, 21. If either the asylum seeker or DHS appeals the immigration judge’s asylum decision to the Board of Immigration Appeals or a federal court of appeals, the process can take longer than a year. See, e.g., Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 18; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 12. (Plaintiffs have remained in immigration detention for over a year).
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DHS, via its component ICE, has the authority to release asylum seekers from detention pending resolution of their asylum claims. Pursuant to the INA, the Secretary of DHS “may . . . in his discretion parole into the United States” “any alien applying for admission to the United States,” including any asylum seeker, “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A) (emphasis). (Emphasis added). The INA’s implementing regulations provide that DHS must exercise its parole discretion on a “case-by-case basis” and that it may parole arriving aliens who “present neither a security risk nor a risk of absconding” and “whose continued detention is not in the public interest.” 8 C.F.R. § 212.5(b); see also 8 C.F.R. § 235.3(c).
2. The Parole Directive In 2009, DHS issued the Parole Directive.1 The Parole Directive defines circumstances under which there is a “public interest” in granting parole pursuant to the INA and implementing regulations. It provides that absent exceptional overriding factors, an asylum seeker who has established a credible fear of persecution should be granted parole in the “public interest,” and released from detention while pursuing his or her asylum claim, so long as the individual establishes his or her identity and presents neither a flight risk nor danger to the community. Parole Directive ¶ 6.2. In considering parole applications, the Parole Directive requires 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.
1 ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, ¶ 4.4 (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf.
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The Parole Directive also delineates a number of procedural requirements for DHS’s adjudication of parole applications. These prescribe that the agency must:
 Provide arriving noncitizens with notice of their right to seek parole, which “shall be explained . . . in a language they understand,” id. ¶ 6.1;
 Conduct a parole interview within “seven days following a finding that an arriving [noncitizen] has a credible fear,” id. ¶ 8.2;
 Provide written notification of the parole decision that contains “a brief explanation of the reasons for any decision to deny parole” within seven days of the interview, id. ¶ 6.5-6.6;
 Notify applicants whose applications are denied that they may request a redetermination, id. § 8.2;
 “Review all relevant documentation offered” by the asylum seeker, as well as “any other information available,” in determining identity, id. ¶ 8.3.1.b;
 “[C]onsider whether setting a reasonable bond and/or” an alternative to detention program would mitigate any flight risk concerns, id. ¶ 8.3.2.c; and
 Engage in supervisory review of individual officers’ decisions, id. ¶ 8.5-8.6. ICE Field Offices have historically relied on the Parole Directive to grant parole to
thousands of asylum seekers with credible fears of persecution, based on individualized findings that their detention was unnecessary. This is not surprising, as the overwhelming majority of asylum seekers who establish a credible fear lack any criminal history, pose no threat to public safety, and do not need to be detained to ensure their appearance for court proceedings.2 DHS has
2 See, e.g., Mark Noferi, “A Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers” at 1, 3 (July 2015) (summarizing research showing that asylum seekers are predisposed to comply with legal processes), available at:), https://www.americanimmigrationcouncil.org/sites/default/files/research/a_humane_approach_ca n_work_the_effectiveness_of_alternatives_to_detention_for_asylum_seekers.pdf.
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not revoked or amended the Parole Directive. As recently as February 2017, then-DHS Secretary John Kelly stated that the Parole Directive “remain[s] in full force.” DHS has not withdrawn or amended the Parole Directive since that time. In 2018, DHS argued before this Court that the Parole Directive remained in full effect, before this Court preliminarily enjoined DHS from violating the Parole Directive. Damus, 313 F. Supp. 3d at 317.
As in Damus, the statistics show that NOLA ICE officials have ceased to implement the Parole Directive. According to ICE data obtained from DHS and analyzed by Plaintiffs’ statistician, from January 2016 through December 2016, NOLA ICE made 229 parole decisions, denying parole in 56 cases (or 24.5 percent of cases). Exh. Declaration of Sophie Beiers (“Beiers Decl.,” attached hereto as 1) ¶ 6. That year, NOLA ICE granted parole in 173 cases (or 75.5 percent of cases). Id. at ¶ 7. That year, NOLA ICE did not provide any reasons for denial.3 Id. From January 2017 through November 2017,4 NOLA ICE made 78 parole decisions. Id. at ¶ 7. From 2016 to 2017, the grant and denial rates completely flipped. In 2017, NOLA ICE denied parole in 64 cases (or 82 percent of cases) and granted parole in 14 cases (or 18 percent of cases). Id. In 2017, NOLA ICE did not list the reasons for denial 97 percent of the time, but they listed the remaining two (2) (2.9 percent) denials as due to “flight risk.” Id.
3 Ms. Beiers believes that some reasons for denial were listed in the “comments” column, but they did not follow the same structure as those listed in the allotted denial category columns. Many “comments” alluded to the absence of a US Sponsor or US Address. See, Exh.1, Beiers Dec. fn. 1. 4 DHS provided Plaintiffs with spreadsheets through November 2019; there was no data included for NOL in June 2017 and Plaintiffs did not receive data for December 2017.
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From January 2018 through January 2019,5 NOLA ICE made 130 parole decisions.6 Id. at ¶ 8. That year, NOLA ICE denied parole in 128 cases (or 98.5 percent of cases) and granted parole in just two (2) cases (or 1.5 percent of cases). Id. In 2018, the reasons for denial were given. NOLA ICE based the lion’s share of denials on flight risk grounds. Id. at ¶ 14. NOLA ICE officials denied parole based on flight risk in 85 cases, or 66.4 percent of cases involving a denial of parole. Id. In ten (10) of the cases denied based on flight risk, NOLA ICE officials noted an additional finding: a prior parole denial had been issued, and there was no basis to reconsider it. Id. Only one case denied due to flight risk was also denied due to NOLA ICE’s determination that the person was a danger to the community. Id. Of the 43 cases (33.6 percent) denied for other reasons outside of flight risk, thirteen (13) were denied solely due to no basis for redetermination and thirty (30) had no reason listed. Id. That means only one denial had anything to do with flight risk.
The statistics above show a remarkable increase in the rate of parole denials in the NOLA ICE Field Office over the last two-and-a-half years. The change from a denial rate of 24.5 percent in 2016 to a denial rate of 98.5 percent for the period between January 2018 to January 2019 demonstrates that NOLA ICE officials have abdicated their responsibility to follow their own Parole Directive. In fact, the NOLA ICE Field Office has the highest rate of parole denials of any field office in the United States.
Given the fact that statistics show that NOLA ICE has the highest parole denial rate in the country, it is unsurprising that a high-ranking NOLA ICE official admitted that the NOLA ICE Field Office had abandoned the Parole Directive by “executive order,” when responding to a
5 DHS provided Plaintiffs’ statistician with spreadsheets through February 2019, but there was no data for NOLA ICE included in the February 2019 spreadsheet. 6 One parole decision date was marked as September 2019. Ms. Beiers believes this was entered erroneously and should have been marked September 2018. This one case is included in the overall 130 figure.
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question from an immigration lawyer regarding whether the Parole Directive was still in effect in the NOLA ICE region. Dkt. 15-3, Exh. 12 at 8. Nor is it surprising that a NOLA ICE official informed the attorney of an asylum seeker that “it was not his call [to deny parole to the attorney’s client]; that it [sic] was a directive to blanket deny paroles [sic] in Louisiana from the New Orleans Field Office Director Trey Lund.” Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16.
Other legal services providers serving facilities located in the NOLA ICE Field Office region confirm that the Field Offices have effectively stopped granting parole. See Dkt. 15-4, Exh. 13, Page Decl. ¶¶ 9-10; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 9; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 9; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17; Exh. 2, Hartle Decl. ¶ 9. Some of these practitioners observed a marked departure from earlier treatment of parole requests, finding that individuals like the named Plaintiffs—who established their identity and pose no flight risk or danger—are now routinely denied parole, while similarly situated clients were routinely granted parole in earlier years. See Dkt. 15-4, Exh. 13, Page Decl. ¶¶ 9-10.
NOLA ICE officers have told practitioners and detained asylum seekers that “there is a blanket directive to deny paroles [sic]” by the NOLA ICE Field Office Director Trey Lund.” Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16. Other NOLA ICE officials have told detainees and legal services providers that they should not rush to turn in documents for their parole requests because ICE does not “give parole” in Louisiana, and that NOLA ICE is “not giving parole to anyone.” Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 24; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 21.
Testimony from Plaintiffs and legal services providers also demonstrates that the NOLA ICE Field Office is not making individualized parole determinations. For example, the former Warden of the Pine Prairie Detention Facility, Indalecio Ramos, told one of the Plaintiffs that
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NOLA ICE officials could not “possibly tend to everyone,” in response to the Plaintiff’s question about never seeing ICE agents at Pine Prairie conducting parole interviews or helping to provide information about parole to the people detained there. Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 25. When asked for the reason that NOLA ICE denies parole to almost everyone who requests it, a NOLA ICE official informed a Plaintiff that “you are all flight risks;” another NOLA ICE official told the same individual that “not even if Trump came to River [the detention facility] would we give out parole.” Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 25, 28.
Instead, the NOLA ICE Field Office issues denials that give no indication that they are considering the evidence submitted in support of the parole requests. The denials typically come as short form letters containing boilerplate language and checkboxes indicating that the asylum seeker poses a “flight risk” or has not sufficiently demonstrated her identity—even when these reasons are facially inconsistent with the evidence submitted. See, e.g., Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 14 (NOLA ICE officer told attorney he denies parole because it would be 99 percent impossible for individual to demonstrate he is not a flight risk); Dkt. 15-6, Exh. 15, Badilla Decl. ¶¶ 10, 15; Dkt. 15-7, Exh. 16, Boyer Decl. ¶¶ 9-11, 17; Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 21; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶ 16; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 20; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 21; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶ 21; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 19; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 16, 20; Dkt 16-10, Exh. 10, F.J.B.H. Decl. ¶ 20; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 17.
In the denial letters, ICE provides no individualized explanation of why parole was denied. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 22; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 23; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 21. One of the Plaintiffs attested that he noticed that NOLA ICE issued him a denial letter identical to his bunkmate’s. Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 21. In some
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cases, ICE has not provided a reason for the denial, or even issued a written decision at all. Dkt. 16-5, Exh. 5, P.S.P. Decl., Exh. C; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 18; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 24, 28.
The evidence also shows that the NOLA ICE Field Office is failing to follow other requirements of the Parole Directive. For instance, asylum seekers are not notified of the availability of parole, with most NOLA ICE officials failing to ensure that detainees receiving parole documents—often in a language they do not understand—are able to understand the content. See Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 16; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 12-14; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 14; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 19; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 13-16; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 16; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶ 13; Dkt 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 16-18; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 16.
When notification is provided, the ICE officer may not “explain the contents of the notification to the [asylum seeker] in a language he or she understands.” Parole Directive § 8.1; see Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 18; Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 16; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 12, 14; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 19; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 19; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 15; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶ 13; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 14; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶ 15; Dkt. 1610, Exh. 10, F.J.B.H. Decl. ¶¶ 16, 19; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶¶ 15-16; Dkt. 15-4, Exh. 13, Page Decl. ¶ 11; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 10; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 4.
Some asylum seekers are denied parole even before they are notified of their ability to seek it. See, e.g., Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 20; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶
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15; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 15-16, 32; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 20; Dkt. 15-6 Exh. 15, Badilla Decl. ¶ 3.
Many asylum seekers are not given parole interviews within seven days of passing a credible fear screening, or even before their parole requests are denied. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 19; Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 18; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶ 14; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 19-20; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 19; Dkt. 166, Exh. 6, R.O.P. Decl. ¶ 18; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶ 15; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 16; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶ 16; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 20, 23; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 16; Dkt. 15-4, Exh. 13, Page Decl. ¶ 12; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 11.
Sometimes the ICE Field Offices simply do not respond to parole requests. Dkt. 16-2, Exh. 2, Mena López Decl. ¶ 20; Dkt. 16-3, Exh. 3, Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶ 21; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 23; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 18, 20; Dkt. 16-8, Exh. 8, Puche Moreno Delc. ¶ 17; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 16; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 16. When parole interviews and formal denials are provided, the denials frequently are not within seven days of the interview. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 19-20; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶ 18; Dkt. 15-4, Exh. 13, Page Decl. ¶ 13.
The form denials also typically come in English, regardless of whether the asylum seeker understands English. See Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶ 22; Dkt. 16-3, Exh. 3, Y.A.L. Decl., Exh. C; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶ 20; Dkt. 16-5, Exh. 5, P.S.P. Decl., Exh. C; Dkt. 16-6, Exh. 6, R.O.P. Decl., Exh. C; Dkt. 16-9, Exh. 9, M.R.M.H. Decl., Exh.B; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 19; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶ 17; Dkt. 15-4, Exh. 13, Page
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Decl. ¶ 14; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 13. In all of these instances, NOLA ICE’s conduct violates the Parole Directive and is evidence that officials in this region are disregarding the Parole Directive in favor of a blanket parole denial policy that does not encompass an individual assessment of each asylum seekers’ potential for flight risk and danger to the community.
Officials at ICE and DHS Headquarters are fully aware of NOLA ICE’s failure to follow the Parole Directive. The Parole Directive specifically requires ICE Headquarters to analyze periodic reporting on parole decisions and take corrective action as needed. See Parole Directive¶¶ 8.11, 8.12. Although ICE Headquarters has been aware of detention practices across the ICE Field Offices for more than two years and that those practices violate the Parole Directive as this Court held in Damus, neither ICE Headquarters, nor the DHS Secretary, who supervises ICE Headquarters, has taken any action to require the NOLA ICE Field Office to follow the Parole Directive. Neither has ICE Headquarters taken action against the NOLA ICE Field Office Director, who NOLA ICE officials assert is implementing an “Executive Order” that abandons the Parole Directive in favor of a blanket denial of parole to asylum seekers. Dkt. 15-3, Exh. 12 at 12; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16.
As a result of NOLA ICE’s unlawful non-compliance with the Parole Directive, Plaintiffs are suffering irreparable harm from their unnecessarily prolonged detention. For example, Plaintiff R.O.P., a physician, fled Cuba because he refused to comply with the Cuban Government’s orders to withhold medically necessary treatment from patients who were political dissidents. Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶¶ 5-11. Cuban government officials punched and threatened R.O.P. with suspension of his medical license, if he did not follow their unethical orders. Id. Faced with physical violence and the prospect of never practicing medicine again for refusing to violate his Hippocratic oath, R.O.P. fled Cuba in July 2018. Id. at ¶ 12. Upon surrendering at a
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port of entry in the U.S. on July 17, 2018, R.O.P. was shuttled from Texas to detention facilities in the NOLA ICE region. Id. at ¶ 14. R.O.P. does not speak English, yet NOLA ICE officials provided parole documents written in English-only to him, never bothering to explain the content. Id. at ¶¶ 15-17. R.O.P. later learned that the documents were a Parole Advisal and Notice, and that he had missed his parole interview, as he had received the documents on the date that the interview was scheduled. Id. After much effort, R.O.P. managed to gather evidence to apply for parole with the help of his U.S. citizen girlfriend; yet NOLA ICE again denied his parole request. Id. at ¶¶ 19-21. R.O.P.’s parole denial letter was identical to his bunkmate’s. The letter stated that he was denied parole because he was a flight risk, even though he had a sponsor and met all other parole criteria. Id. at ¶ 14. With the help of legal counsel, R.O.P. submitted another parole request in September 2018, but he has yet to receive any response from NOLA ICE to that request. Id. at ¶ 23. R.O.P. submitted sponsorship letters, including one from his U.S. citizen girlfriend, to show he is not a flight risk. In addition, as a doctor, he has often cared for other detainees who are not provided adequate medical care, and he has provided evidence of this, demonstrating that is compassionate, productive, and not a danger to the community; yet, a year after arriving in the U.S., NOLA ICE continues to detain him under unsanitary, unhealthy (he has lost 40 pounds since he arrived in the U.S.), and oppressive conditions, and subject to frequent racial abuse. Id. at ¶ ¶ 21-23, 28-39. The Parole Directive should afford R.O.P. the opportunity to be free, but as R.O.P. learned, NOLA ICE has a “blanket ban on parole”, and “justice does not exist [there].” Id. at ¶ 24.
Plaintiff P.S.P., like R.O.P., is a Cuban doctor who fled government persecution because he refused to cause medical harm to pregnant women, and because of his sexual orientation. Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶¶ 5, 11. The Cuban Government beat and tortured P.S.P. because of his political and ethical beliefs, and because of his sexual orientation. Id. at ¶¶ 10-14. Like all of
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the named Plaintiffs, P.S.P. passed his credible fear interview and should have received information about applying for parole. Instead, NOLA ICE officials failed to explain the availability of parole to P.S.P. in a language that he could understand, and he only learned about the process after speaking to other detainees. Id. at ¶ 19. Despite presenting evidence, in accordance with the Parole Directive, establishing that he is not a flight risk nor a danger to the community if he were paroled, P.S.P. remains detained to this day, as NOLA ICE has denied his multiple parole requests. Id. at ¶¶ 21-24.
Plaintiffs Mena López and J.M.R. are conscientious objectors fleeing beatings and torture at the hands of the Cuban Government. Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 5-11; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 7-17. As a trans woman, Plaintiff Mena López has suffered significant medical, physical, and psychological harm while in prolonged detention, despite the fact that she meets all of the requisites for parole under the Parole Directive, and NOLA ICE should have granted her parole, but did not because of their blanket parole denial policy. Id. at ¶¶ 21-25. Like Ms. Mena López, J.M.R. meets all the requisites of the Parole Directive, but NOLA ICE has denied him parole twice, even though he has only ever submitted one request for parole. Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 20-23. J.M.R.’s prolonged detention has harmed his health and, like all of the other Plaintiffs, his ability to work on his asylum case. Id. at ¶¶ 25-31.
Plaintiffs Y.A.L. and M.R.M.H. are suffering irreparable medical harm from their unjust, prolonged detention. Despite meeting the requisites for parole under the Parole Directive, NOLA ICE continues to detain these asylum seekers in facilities that do not provide the medical care they so desperately need, unnecessarily putting their lives at risk. Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 20-24; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 21-36.
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All the Plaintiffs representing the putative class share similar experiences, finding themselves detained in the Kafkaesque bureaucracy that is the NOLA ICE parole process. All the named Plaintiffs are limited-English proficient, and required—but did not receive—interpretation and translation from NOLA ICE officials, in order to understand documents and quickly comply with parole deadlines. See, pp. 11-2, 13, supra. Even in cases where they have been able to retain legal counsel, NOLA ICE officials ignore compelling evidence in support of their parole requests and instead cleaved to their blanket parole denial policy. See, e.g., Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 21-25; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 15-24; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. Exhs. C-I. Plaintiffs Heredia Mons and Toledo Flores presented themselves at ports of entry with their respective partners. Their partners, women who were detained in other ICE Field Offices, are currently free on parole; yet Heredia Mons and Toledo Flores—who have presented virtually the same evidence in support of their parole requests—remain in detention under NOLA ICE. Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 15-20; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 10-20.
As in Damus, DHS has access to statistics clearly showing that the NOLA ICE Field Office has ceased to comply with the Parole Directive, and is currently implementing a policy resulting in the granting of parole requests to only 1.5 percent of detainees. Exh. 1, Beiers Decl. ¶ 13. And like in Damus, without the intervention of this court, DHS will continue to ignore the NOLA ICE Field Office’s non-compliance with internal policy and guidelines, and Plaintiffs and others in their class will continue to suffer in prolonged detention.
All but two of the Plaintiffs are currently detained as they await final adjudications of their asylum claims.7 Plaintiffs already experienced trauma before fleeing their home countries and are
7 The Board of Immigration Appeals recently denied Plaintiff Heredia Mons’s asylum appeal, and he is now subject to a final order of deportation; Plaintiff Roland Nchango Tumenta was granted asylum after the filingfilin of the Complaint in this case.
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thus particularly sensitive to the harm inflicted by continued detention. See Damus, 313 F. Supp. 3d at 342 (discussing testimony of Plaintiff’s expert Dr. Allen Keller, which noted the “harmful effects of immigration detention on the health and well-being of asylum seekers”). With each additional day of incarceration, these harms grow worse. See id.; Dkt. 16-1, Exh. 1, Heredia Mons Decl. ¶¶ 24-27; Dkt. 16-2, Exh. 2, Mena López Decl. ¶¶ 21-25; Dkt. 16-3, Exh. 3, Y.A.L. Decl. ¶¶ 18-24; Dkt. 16-4, Exh. 4, J.M.R. Decl. ¶¶ 26-31; Dkt. 16-5, Exh. 5, P.S.P. Decl. ¶¶ 24-28; Dkt. 166, Exh. 6, R.O.P. Decl. ¶¶ 27-39; Dkt. 16-7, Exh. 7, Toledo Flores Decl. ¶¶ 22-26; Dkt. 16-8, Exh. 8, Puche Moreno Decl. ¶¶ 22-25; Dkt. 16-9, Exh. 9, M.R.M.H. Decl. ¶¶ 35-39; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶¶ 26-30; Dkt. 16-11, Exh. 11, Girón Martínez Decl. ¶¶ 21-26; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 12; Dkt. 15-7, Exh. 16, Boyer Decl. ¶¶ 12-17.
LEGAL STANDARD A. Preliminary Issues8
1. Jurisdiction In its decision granting the preliminary injunction sought by the Damus Plaintiffs, this Court acknowledged it had jurisdiction over the matter because, as with the Plaintiffs in this case, the Damus Plaintiffs alleged “that ICE [was], as a matter of general course, not complying with the policies and procedures of the Parole Directive;” and the Damus Plaintiffs were “not challenging the outcome of ICE’s decision-making, but the method by which parole is currently being granted (or denied).” See Damus 313 F. Supp. 3d at 327 (emphasis added). Like the Damus Plaintiffs, the Plaintiffs in this action are “challeng[ing] an overarching agency” action as unlawful—in this case, Defendants’ systematic failure to follow the Parole Directive and to instead
8 Plaintiffs have filed a separate Memorandum in Support of Motion for Class Certification, Dkt. 15-1, wherein they set forth their arguments for class certification.
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impose detention without its safeguards and individualized determinations.” Id. (citing R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015));). See also, Abdi, 280 F. Supp. 3d at 385373, 385 (W.D.N.Y. 2017) (federal district court had jurisdiction beyond the jurisdictional bar of § 1252(a)(2)(B)(ii) where plaintiffs were not asking the court to review the propriety of any given parole decision, but, instead, simply sought compliance with certain minimum procedural safeguards when parole decisions are made). See Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding that §1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction over “challenge[s to] the extent of the Attorney General’s [discretionary] authority” over detention).
2. Legal Requisites for Establishing a Preliminary Injunction In deciding whether to issue a preliminary injunction, a court must consider “whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest.” Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Plaintiffs meet these requirements.
ARGUMENT I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. Plaintiffs are Likely to Show That the NOLA ICE Field Office’s Departure From the Parole Directive Violates the APA, Being Arbitrary, Capricious, and Contrary to Law.
The APA requires that courts “hold unlawful and set aside agency action” that is “arbitrary, capricious, . . . or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As set forth below, NOLA ICE’s failure to implement the Parole Directive should be preliminarily enjoined because it is arbitrary, capricious, and contrary to law. As this Court established in Damus, the NOLA ICE
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Field Office is bound by the Accardi doctrine to comply with the Parole Directive, and its failure to do so is arbitrary, capricious, and contrary to law.
This Court held that the Parole Directive “is binding agency policy and . . . can be challenged via an Accardi claim.” Damus, 313 F. Supp. 3d at 338. Pursuant to the Accardi doctrine, “government agencies are bound to follow their own rules, even self-imposed procedural rules that limit otherwise discretionary decisions.” Jefferson v. Harris, 2018 WL 324209, at *6 (D.D.C. Jan. 5, 2018) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68 (1954)); accord Abdi, 280 F. Supp. 3d at 386. In particular, “[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235 (1974); accord Jefferson, 2018 WL 324209 at *6 (“interference with regulations that seek to safeguard a plaintiff’s individual rights implicates the Accardi doctrine and its requirement that agencies abide by their own procedures”); Abdi, 280 F. Supp. 3d at 389 (violation of “internal policy” implicates Accardi doctrine if it “pertains to individual rights”).
The requirement that an agency follow its own directives is not “limited to rules attaining the status of formal regulations.” Mass. Fair Share v. Law Enforcement Assistance Admin., 758 F.2d 708, 711 (D.C. Cir. 1985); cf.1985); accord Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977) (whether provisions of nonregulatory agency guidance were binding depended on analysis of language, intent, and context).). Rather, even an unpublished manual or policy binds the agency if “an examination of the provision’s language, its context, and any available extrinsic evidence” supports the conclusion that it is “mandatory rather than merely precatory.” Doe, 566 F.2d at 281; see also Mass. Fair Share, 758 F.2d at 711-12 (invalidating agency action that violated the “highlyrefined procedures for treatment of applications for grants” found in internal program documents); Jefferson, 2018 WL 324209, at *6 (plaintiff pleaded valid Accardi claim based on agency
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violations of its “policies,” “regulations[,] and guidelines”). Again, this is particularly so “[w]here the rights of individuals are affected,” Morton, 415 U.S. at 235, and where the guidance provides one of “the only safeguard[s] . . . against unlimited agency discretion.” Lopez v. Fed. Aviation Admin., 318 F.3d 242, 247 (D.C. Cir. 2003).
This Court held that in circumstances strikingly similar to those at issue in this case that the Parole Directive was binding on DHS under the Accardi Doctrine. Damus, 313 F. Supp. 3d at 338. Consistent with its status as a “directive,” the Parole Directive imposes numerous substantive and procedural obligations on DHS and ICE, many of which affect the “rights of individuals.” Morton, 415 U.S. at 235. Most importantly, the Parole Directive “explain[s] how the term [‘public interest’ in 8 C.F.R. § 212.5(b)] is to be interpreted by [DHS] when it decides whether to parole arriving aliens.” Parole Directive ¶ 4.4. In doing so, the Directive instructs 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. § 6.2. Moreover, if a noncitizen “establishes to the satisfaction of [DHS] his or her identity and that he or she presents neither a flight risk nor danger to the community, [DHS] should, absent additional factors . . . parole the alien оn the basis that his or her continued detention is not in the public interest.” Id.
As noted, the Parole Directive also mandates that DHS “shall” follow a number of procedures in making parole decisions, such as the requirement that its officers inform asylum seekers of the availability of parole in a language they understand. Id. ¶ 6.1; see also supra at 6-7. All of the referenced substantive and procedural provisions impose obligations on the agency that it is bound to follow, and that affect whether or not individuals will continue to be deprived of their liberty.
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The Government itself has conceded that the Parole Directive imposes meaningful constraints on how DHS adjudicates parole requests. The Government recently represented to the United States Supreme Court that the Parole Directive requires DHS to “automatically consider parole for arriving aliens found to have a credible fear, and to release the alien if he establishes his identity, demonstrates that he is not a flight risk or danger, and there are no countervailing considerations.” Pet. Suppl. Reply Br., Jennings, 2017 WL 727754, at *6 (Feb. 21, 2017). The Government also represented that the Directive requires a parole review that “calls for far more than ‘checking a box on a form,’” and specifically “provides for notice to the alien, an interview, the opportunity to respond and present evidence,” and other procedural requirements. Id. The Government further represented to the Supreme Court that the Parole Directive provides critical safeguards against the arbitrary detention of arriving asylum seekers and that it remains “in full force and effect.” See id. at *6 n.2; see also Abdi, 280 F. Supp. 3d at 379 (recognizing that the Government “recently embraced” the Parole Directive before the Supreme Court, “telling the Justices that it remained in full force and effect”).
Despite the Government’s representations, the NOLA ICE Field Office—like the five Field Offices involved in the Damus litigation—has simply stopped following the Parole Directive. Statistics show that from January 2018 to January 2019, NOLA ICE granted parole requests to only 1.5 percent9 of applicants—by far the lowest parole approval rate of any ICE Field Office in
9 There is no doubt that the NOLA ICE Field Office’s overwhelming denial rate demonstrates a departure from the Parole Directive’s requirement of individualized determinations. See, e.g., McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988)1988) (four departures out of approximately 100 decisions was insufficient to show willingness to depart from model on individualized basis); U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232, 1235 (D.C. Cir. 1994)1994) (where agency “exercised discretion in only one out of over 300 cases,” it would show “little support for the [agency’s] assertion that it intended not to be bound”); Bellarno Int’l Ltd. v. Food & Drug Admin., 678 F. Supp. 410, 415 (E.D.N.Y. 1988)) (“two . . . instances of deviation” out of 386 decisions “can hardly form the basis for a finding of agency discretion”).
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the United States. NOLA ICE officials have admitted to legal service providers and asylum seekers in its custody that there is a “blanket” parole denial policy/directive, and have openly discouraged legal service providers and detainees from wasting their time applying for parole. Dkt. 15-3, Exh. 12 at 8; Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 16-6, Exh. 6, R.O.P. Decl. ¶ 24; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 16-10, Exh. 10, F.J.B.H. Decl. ¶ 21.
The testimony of attorneys with clients in custody of NOLA ICE confirms that NOLA ICE has abandoned the Parole Directive. Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 15-4, Exh. 13, Page Decl. ¶ 10; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17. As one legal services provider notes: “the New Orleans Field Office has created insurmountable barriers for arriving asylum seekers to gain release from detention under the Parole Directive. . . . it appears that New Orleans ICE officials are not giving due consideration to parole applications.” Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17.
Defendants’ failure to follow the Parole Directive is arbitrary and capricious for an additional reason: DHS cannot lawfully change its position on an established policy like the Parole Directive without “display[ing] awareness that it is changing position” and “show[ing] that there are good reasons for the new policy.” Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) [hereinafter, “) [Fox TV”]; accord Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Where, as here, an agency effectively abandons a prior policy, it must provide a more detailed explanation than if it were writing on a blank slate—particularly in light of the “serious reliance interests that must be taken into account.” Fox TV, 556 U.S. at 51516.
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Neither DHS nor, by extension, the NOLA ICE Field Office, has officially acknowledged that it has changed its policy.10 In fact, it has done precisely the opposite by representing to the Supreme Court in 2017 and to this Court in 2018 that the Parole Directive remains “in full force and effect.” Pet. Suppl. Reply Br., Jennings, 2017 WL 727754, at *6 n.2; Damus, 313 F. Supp. 3d at 326 ( (Defendant DHS asserted that ICE continues to implement Parole Directive). Nor has DHS provided any explanation, much less a reasoned explanation, for departing from the Parole Directive. Accordingly, its actions are arbitrary and capricious under Fox TV.
Further, while NOLA ICE’s abandonment of the Parole Directive may not have been in response to a written policy change, the requirement that an agency provide a reasoned explanation for a policy change applies equally to explicit and sub silentio departures from prior policy and practice. See, e.g., Fox TV, 556 U.S. at 515 (agency cannot “depart from a prior policy sub silentio or simply disregard rules that are still on the books”); Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) (agency cannot depart from “established pattern of agency conduct” without reasoned explanation).
Plaintiffs urge this Court to follow its own precedent set in Damus and to enjoin NOLA ICE’s unexplained departure from the Parole Directive, as Plaintiffs are likely to show that NOLA ICE is implementing a new, unwritten blanket parole denial policy in violation of the APA. See, e.g., Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 929, 934-95 (D.C. Cir. 2008); see also Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 372-75 (1998) (agency must follow its announced standard in adjudications, and cannot adopt different standard in practice).
10 NOLA ICE officials have admitted to legal services providers and some of the named Plaintiffs that the NOLA ICE Field Office is implementing a policy of “blanket” parole denials. See Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 15-4, Exh. 13, Page Decl. ¶ 10; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17.
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The overwhelming statistical and testimonial evidence clearly demonstrates that NOLA ICE has departed from the policy set forth in the Parole Directive in violation of the APA.
B. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the INA and Its Implementing Regulations, and It Implicates Constitutional Concerns. The language of the INA and its regulations mandate individualized parole reviews. The
failure of the NOLA ICE Field Office to provide individualized parole reviews not only violates the Parole Directive; it also violates the INA. Accordingly, even if DHS were to revoke the Parole Directive and to provide reasoned grounds for doing so, the failure of the NOLA ICE Field Office to consider release on parole based on the facts of each case still would be unlawful.
The INA establishes that an arriving asylum seeker initially “shall be detained,” 8 U.S.C. § 1225(b)(1)(B)(ii)), but that the Attorney General (now the DHS Secretary) then “may . . . in his discretion parole” such individuals into the United States on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A); accord Nat’l Venture Capital Ass’n v. Duke, 2017 WL 5990122, at *1 (D.D.C. Dec. 1, 2017) (“The [INA] . . . grants the Secretary of Homeland Security the discretionary authority to parole individuals into the United States on a case-by-case basis.”). According to the Supreme Court, release on parole is an “express exception” to detention and is a “specific provision authorizing release.” Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018).
Under established Supreme Court precedent, the INA provision that the Attorney General “may, in his discretion” release individuals on parole mandates that Defendants in fact make individualized parole decisions. In Jean v. Nelson, the Supreme Court considered a predecessor version of the parole statute. Jean, 472 U.S. at 848. Like the current version, it provided that the Attorney General “may in his discretion” release individuals applying for admission into the United States on parole. Id. at 859 (internal quotation marks omitted). Specifically, the version of
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the parole statute at issue in Jean provided that the Attorney General (or his designee) “may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States.” Id. (quoting predecessor version of 8 U.S.C. § 1182(d)(5)(A)) (internal quotation marks omitted). Based on this language, the Supreme Court remanded the case before it with instructions that the lower court determine “whether INS officials exercised their discretion under § 1182(d)(5)(A) to make individualized determinations of parole.” Id. at 857 (emphasis added).
The Supreme Court thus determined in Jean that the words “may in his discretion parole” require immigration authorities to consider a putative parolee’s individual circumstances in determining whether release on parole is appropriate. See, e.g., Marczak v. Greene, 971 F.2d 510, 515 (10th Cir. 1992) (Jean requires that immigration authorities “‘make individualized determinations of parole’” (quoting Jean, 472 U.S. at 857)); accord Diaz v. Schiltgen, 946 F. Supp. 762, 764-65 (N.D. Cal. 1996) (under predecessor version of parole statute, “[t]he District Director is required to ‘make individualized determinations of parole’” (quoting Jean, 472 U.S. at 857)). “[I]n each case a district director must determine whether a particular person is likely to flee, and whether that person’s continued detention would be in the public interest.” Marczak, 971 F.2d at 515 (emphasis added).
As noted, like the predecessor version of the parole statute at issue in Jean, the current statute provides that the Attorney General “may, in his discretion” release asylum seekers on parole. Jean thus mandates individualized parole reviews in this case and precludes parole determinations “on the basis of broad, non-individualized policies.” Indeed, unlike the predecessor version of the parole statute, the current version of the statute expressly states that parole should
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be considered on a “case-by-case basis,” 8 U.S.C. § 1182(d)(5)), making it all the more clear that individualized review is required.
The NOLA ICE Field Office is not making “individualized determinations of parole.” Rather, in denying parole in nearly 100 percent of cases, Exh. 1, Beiers Dec. ¶ 13, NOLA ICE officials are implementing a “broad, non-individualized policy” of general detention—without regard to whether an individual asylum seeker is a flight risk or a danger to the community, or whether detention of the asylum seeker is otherwise in the public interest.11
Beyond the statute, NOLA ICE also violates regulations promulgated pursuant to the parole statute. The regulations define when DHS may permissibly exercise its parole discretion “on a case-by-case basis.” 8 C.F.R. § 212.5(b). They provide that arriving asylum seekers are eligible for parole if they “present neither a security risk nor a risk of absconding” and if their “continued detention” is determined not to be in “the public interest.” 8 C.F.R. § 212.5(b)(5). 8 C.F.R. § 212.5(b)(5). Read in conjunction with the statute, the regulations require an individualized parole review in which an immigration official considers whether an individual asylum seeker presents a flight risk or a danger to the community and if his or her release is in the public interest. See id. The NOLA ICE Field Office is not engaging in the required individualized consideration. See supra at 9. Their failure to do so violates INA regulations and is contrary to law under the APA.
Finally, NOLA ICE’s blanket parole denial policy implicates constitutional concerns by depriving individuals of a fundamental interest in freedom from custody. Zadvydas v. Davis, 533 U.S. at 690 (“A statute permitting indefinite detention of an alien would raise a serious
11 Just as the statistical evidence demonstrates that NOLA ICE officials have impermissibly departed from the Parole Directive, see supra atpp. 8-9, the evidence also confirms that NOLA ICE has stopped exercising the discretion required by statute. See, e.g., McLouth Steel Prod. Corp., 838 F.2d at 1321; U.S. Tel. Ass’n v. F.C.C., 28 F.3d at 1235.
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constitutional problem.”). The doctrine of constitutional avoidance precludes NOLA ICE’s blanket parole denial policy and mandates that the INA and its regulations be construed to require individualized parole determinations based on flight risk and danger to the community. Courts must read a statute to avoid serious constitutional problems when it is “fairly possible” to do so. Id. at 689. See (2001); see also Clark v. Martinez, 543 U.S. 371, 381 (2005) (constitutional) (the avoidance canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”); Jennings, 138 S. Ct. at 843 (canon “permits a court to choose between competing plausible interpretations of a statutory text” (internal quotation marks and emphasis omitted)). Courts have consistently “read significant limitations” into the “immigration statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689.
Therefore, the parole statute and regulations must be construed to require individualized parole determinations founded on whether an individual is a flight risk or a danger to the community, clearly the opposite of NOLA ICE’s blanket parole denial policy. As discussed above, the Supreme Court’s decision in Jean mandates that construction and, in all events, such construction is “fairly possible.” In R.I.L-R., this Court addressed a section of the INA providing that the Attorney General “may continue to detain” or may instead release a non-citizen on bond or conditional parole pending a decision on whether he or she should be removed from the United States. The Government argued that “the statute contains no limitation on the Executive’s discretion to detain, nor does it enumerate the factors that may be considered.” R.I.L-R. 80 F. Supp. 3d at 186. Applying the doctrine of constitutional avoidance, the Court held that the provision did not afford DHS unfettered discretion to detain individuals absent individualized assessments of flight risk or danger to the community. The Court determined that the phrase “may continue to
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detain” must instead be construed to mean that immigration authorities only “may continue to detain” individuals when continued detention is consistent with due process principles—i.e., when detention is justified by circumstances specific to the individual’s case, like flight risk or danger to the community. Id. at 190.
Similarly, in Zadvydas, the Supreme Court addressed whether the words “may detain” in the INA authorized the Government to effect indefinite detention of migrants. Applying the constitutional avoidance doctrine, the Court determined that “may detain” must be construed in the context of the Due Process Clause and held that “while ‘may’ suggests discretion, it does not necessarily suggest unlimited discretion.” 533 U.S. at 697; accord Jennings, 138 S. Ct. at 844 (discussing avoidance analysis in Zadvydas).
The words “may, in his discretion, parole . . . on a case-by-case basis” cannot appropriately be construed to give the Government unfettered discretion simply to deny parole in virtually all cases, without considering whether continued detention of asylum seekers is necessary based on flight risk or danger to the community. Nor can the words appropriately be construed to authorize the NOLA ICE Field Office to deprive asylum seekers of their liberty for months or years on end in order to send a message to others. To so construe the statute would improperly render this sole “exception to detention” for arriving asylum seekers (Jennings, 138 S. Ct. at 844) a meaningless nullity. See, e.g., Diaz, 946 F. Supp. at 766.
Consistent with due process, the words “may, in his discretion, parole . . . on a case-bycase basis” rather require that the Government in fact exercise discretion in evaluating parole requests on a “case-by-case” basis.” Moreover, pursuant to the regulations, the Government must exercise such case-by-case discretion based on flight risk, danger to the community, and the public interest. As evidenced by the testimony from legal services providers, NOLA ICE has forsaken
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individualized parole assessments in favor of a blanket parole denial policy in violation of the INA. Dkt. 15-5, Exh. 14, Giardina Decl. ¶ 16; Dkt. 15-6, Exh. 15, Badilla Decl. ¶ 10; Dkt. 15-4, Exh. 13, Page Decl. ¶ 10; Dkt. 15-7, Exh. 16, Boyer Decl. ¶ 17.
C. NOLA ICE’s Refusal to Abide by the Parole Directive Violates the Due Process Clause.
Separate from the APA, NOLA ICE’s failure to abide by the Parole Directive also violates the Due Process Clause. See Trudeau v. FTC, 456 F.3d 178, 190 (D.C. Cir. 2006) (independent cause of action exists to remedy constitutional violations); Hubbard v. EPA, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986) (“[T]he court’s power to enjoin unconstitutional acts by the government . . . is inherent in the Constitution itself . . . .”).
1. Arriving Asylum Seekers Are Protected by the Due Process Clause. While the Supreme Court in Jennings did not reach the issue, numerous courts have found that the Due Process Clause protects against the arbitrary detention of “arriving” (or “excludable”) noncitizens like Plaintiffs. See, e.g., Rosales-Garcia v. Holland, 322 F.3d 386, 408 (6th Cir. 2003) (en banc) (finding serious constitutional problems with indefinite detention of excludable noncitizens); Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) (same); Ahad v. Lowe, 235 F. Supp. 3d 676, 687-88 (M.D. Pa. 2017) (“rising sea of case law” “has consistently determined that detained aliens,” including arriving noncitizens, “are entitled to some essential measure of due process”); Maldonado v. Macias, 150 F. Supp. 3d 788, 800 (W.D. Tex. 2015)TExh. 2015) (“[I]t is clear that aliens—even inadmissible aliens—are entitled to some constitutional protections, including some amount of due process.”); see also Rosales-Garcia, 322 F.3d at 410 n.29 (“[N]o circuit has concluded that the Due Process Clauses of the Fifth and Fourteenth Amendments do not apply to excludable aliens.”).
29

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 34 of 39
Zadvydas reinforces this conclusion. Seven of nine Justices in Zadvydas agreed that even noncitizens who had lost all legal right to reside in the United States had the right to “freedom from [unjustified] physical restraint,” 533 U.S. at 690; see also id. at 721 (Kennedy, J., dissenting) (acknowledging “serious” and “obvious” constitutional problems arising from arbitrary detention of noncitizens with removal orders, and stating that “both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious”). If noncitizens who have no legal right to be in the United States have such due process protections, it follows that those who—like Plaintiffs—do have a right to pursue legitimate asylum claims must have at least the same rights. See, e.g., Ahad, 235 F. Supp. 3d at 688 (“Given the scope of the due process protections provided to detained aliens, and acknowledged by the courts in the past, it would be anomalous to completely deny this modest measure of due process to detainees held pursuant to § 1225(b).”).
Defendants may rely on the Supreme Court’s decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), to argue that Plaintiffs lack due process rights because they presented themselves at ports of entry. Such reliance on Mezei would be unfounded. Mezei may be read to suggest that certain arriving noncitizens do not have due process rights with respect to their admission to the United States where national security is at issue. See id. at 215 (“we do not think that respondent’s continued exclusion deprives him of any statutory or constitutional right” (emphasis added)); id. at 216 (“respondent’s right to enter the United States depends on the Congressional will”). But Mezei does not mean that such individuals lack due process rights with respect to arbitrary detention.
The en banc Sixth Circuit emphasized in Rosales-Garcia that any such broad reading of Mezei was “eclipsed” by later Supreme Court cases that “rigorously delineated” “the contours of constitutionally permissible civil detention.” Rosales-Garcia, 322 F.3d at 413-14. Rosales-Garcia
30

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 35 of 39
further explained that the Mezei court “explicitly grounded its decision in the special circumstances of a national emergency and the determination . . . that Mezei presented a threat to national security”—circumstances that are absent in this case. Id.
2. NOLA ICE’s Refusal to Provide Individualized Parole Determinations Violates the Due Process Clause.
Pursuant to the Due Process Clause, the Government may not detain asylum seekers on grounds not reasonably related to the legitimate purposes of preventing flight or protecting the community. Zadvydas, 533 U.S. at 690. As this Court has acknowledged, Zadvydas “grounds its analysis of immigration detention in principles derived from the wider civil-commitment context.” R.I.L-R., 80 F. Supp. 3d at 189. Plaintiffs’ detention based on NOLA ICE’s blanket denial of parole—rather than an individualized determination that detention is warranted due to flight risk or danger to the community—deprives Plaintiffs of their due process rights. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE
RELIEF. Like the Damus Plaintiffs, the Plaintiffs have presented evidence showing that they are suffering or will suffer irreparable harm absent this Court’s intervention: “asylum-seekers are being denied parole without the protections of the ICE Directive. . . . instead, they are subject to a de facto ‘no-parole’ reality, under which detention has become the default option. . . . being deprived of the safeguards of the Parole Directive harms putative class members in a myriad ways.” Damus 313 F.3d at 342. In order to establish irreparable harm, the moving party must show that the injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). The injury must also be “both certain and great; it must be actual and not
31

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 36 of 39
theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id.
In this case, Plaintiffs and those similarly situated will suffer irreparable harm without injunctive relief. First, their injury is imminent and certain. They are currently being detained at NOLA ICE facilities. As this and other courts have recognized, detention irreparably harms Plaintiffs and other putative class members “in myriad ways.” Id.; R.I.L-R., 80 F. Supp. 3d at 191; Abdi, 280 F. Supp. 3d at 404 (detained asylum seekers suffered irreparable harm in “negative physical and mental health effects of prolonged detention and the fact that their continued detention has prevented putative class members from adequately preparing for their asylum hearings before an immigration judge”).
Moreover, Plaintiffs already experienced trauma before fleeing their home countries, and are thus particularly vulnerable to the harm inflicted by continued detention, which “worsen[s] symptoms of trauma and severely impede[s] the ability of asylum seekers to recover from their physical and mental conditions.” Damus, 313 F. Supp. 3d at 342 (citing to the Declaration of Allen S. Keller, “discussing the harmful effects of immigration detention on the health and well-being of asylum-seekers”). These harms only grow worse with each additional day of incarceration. Id. As such, the injuries caused by NOLA ICE’s policy of blanket denials of parole are “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy, 454 F.3d at 297 (internal quotation marks and citation omitted).
Plaintiffs’ injuries also are “beyond remediation.” Plaintiffs do not seek monetary compensation for their injuries. Rather, they seek injunctive and declaratory relief setting aside NOLA ICE’s blanket parole denial policy. The “unnecessary deprivation of liberty clearly constitutes irreparable harm.” United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1988)
32

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 37 of 39
(citation omitted). And “[u]nlike economic harm, the harm from detention pursuant to an unlawful policy cannot be remediated after the fact.” R.I.L-R., 80 F. Supp. 3d at 191. III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST BOTH FAVOR
INJUNCTIVE RELIEF. Plaintiffs ask this Court to follow its own precedent set out in Damus and enjoin an unlawful and unconstitutional policy to prevent irreparable harm to numerous vulnerable asylum seekers. Each Plaintiff seeks nothing more than an individualized review to determine whether there is a need for him or her to be detained. Neither the Government nor the public has any legitimate interest in denying Plaintiffs this modest relief. Indeed, the Government itself has expressly determined that the “continued detention” of asylum seekers who have passed credible fear, established their identity, and are not flight risks “is not in the public interest.” Parole Directive § 6.2. Numerous courts, including this Court, have recognized that the likelihood that individuals “will . . . be deprived of their physical liberty . . . in the absence of the injunction” weighs heavily in favor of granting preliminary relief. E.g., Hernandez v. Sessions, 872 F.3d 976, 995-96 (9th Cir. 2017) (describing numerous harms suffered by noncitizens in immigration detention); SeretseKhama v. Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) (“[T]he harm to petitioner if he is not released is immeasurably significant.”). These grave harms far outweigh any countervailing governmental interest. Moreover, the “issuance of a preliminary injunction would serve the public’s interest in maintaining a system of laws” where the Government must comply with its constitutional and legal obligations. O’Donnell Const. Co. v. D.C., 963 F.2d 420, 429 (D.C. Cir. 1992); see also R.I.L-R., 80 F. Supp. 3d at 191 (explaining that public interest is served by injunction that “ends an unlawful practice” and ensures compliance with the APA) (citation and quotation marks
33

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 38 of 39
omitted); Seretse-Khama, 215 F. Supp. 2d at 54 (“the public interest is served by petitioner’s release” because continued unlawful detention “poses serious constitutional risks”); Abdi, 280 F. Supp. 3d at 410 (“Granting preliminary injunctive relief will simply require Respondents to comply with their legal obligations and afford Petitioners procedural protections in connection with Respondents’ exercise of discretion.”).
It is important to note that treating asylum seekers with basic fairness and dignity is among our nation’s best traditions and a source of public interest and pride. See Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102 (“[I]t is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including . . . admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States.”). It is not in the public interest to arbitrarily detain asylum seekers, or to hamper their ability to effectively argue for asylum, so that they can be more easily sent back to where they come from.
In short, the balance of harms and the public interest decisively favor requiring NOLA ICE to follow the law, and afford asylum seekers the process required by DHS’s own binding Parole Directive, as well as by the INA and the Due Process Clause.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for a class-wide preliminary injunction should be GRANTED.
34

Case 1:19-cv-01593-JEB Document 22-1 Filed 07/18/19 Page 39 of 39

Dated: July 18, 2019
Katie Schwartzmann* Bruce Hamilton* AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org

Respectfully submitted,
//s// Melissa Crow____________
Melissa Crow (D.C. Bar No. 453487) Luz Virginia López* SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 melissa.crow@splcenter.org luz.lopez@splcenter.org
Mary Bauer* SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue Charlottesville, VA 22903 Tel: (470) 606-9307 mary.bauer@splcenter.org
Laura Rivera* SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 laura.rivera@splcenter.org
Attorneys for Plaintiffs *Admitted pro hac vice

35

Case 1:19-cv-01593-JEB Document 22-2 Filed 07/18/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Ángel Alejandro Heredia Mons, et al., on

)

behalf of themselves and others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

Kevin K. McALEENAN, Acting Secretary of

) )

the Dep’t of Homeland Security, in his official )

capacity, et al.,

)

Defendants.

) )

Civil Action No. 1:19-cv-01593-JEB

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Upon consideration of Plaintiffs Motion for Preliminary Injunction and accompanying Memorandum In Support, and for good cause shown, the motion is GRANTED. It is hereby ORDERED that:
1. Plaintiffs’ Motion for a Preliminary Injunction is GRANTED; 2. Plaintiffs’ Motion for Class Certification, dated March 20, 2018 (ECF No. 11), is
GRANTED on a provisional basis for purposes of this preliminary injunction, and Plaintiffs’ counsel are appointed as Class Counsel; 3. Defendants are hereby ENJOINED from denying parole to any provisional class members absent an individualized determination, through the parole process, that such provisional class member presents a flight risk or a danger to the community; 4. The individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class

1

Case 1:19-cv-01593-JEB Document 22-2 Filed 07/18/19 Page 2 of 2 member’s case. Such determinations, moreover, shall not be based on categorical criteria applicable to all provisional class members;
5. Defendants shall provide provisional class members with parole determinations that conform to all of the substantive and procedural requirements of U.S. Immigration and Customs Enforcement, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009); and
6. Within seven days of this Order, the parties will meet and confer to develop a notice that explains the requirements of this Order and provides class members with contact information for Class Counsel. IT IS SO ORDERED. _________________________________ United States District Court Judge
Date:
2

Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 1 of 5
EXHIBIT
1

Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 2 of 5
DECLARATION OF SOPHIE BEIERS I, Sophie Beiers, upon my personal knowledge, hereby submit this declaration and declare as follows: 1. I am a Data Journalist at the American Civil Liberties Union (ACLU) national office. Before I worked for the ACLU, I worked as Senior Data Analyst at YouthTruth, an education non-profit and a project of The Center for Effective Philanthropy. I hold a bachelor’s degree in Psychology from Pitzer College and a master’s degree in Quantitative Methods in Social Sciences from Columbia University. 2. My work was supervised and checked by Brooke Watson, Senior Data Scientist at the ACLU. Before she worked for the ACLU, she worked as Research Scientist at the EcoHealth Alliance, a nonprofit organization where she used statistics and mathematical modelling to research infectious disease. She holds a master’s degree in Epidemiology from the London School of Hygiene and Tropical Medicine and a bachelor’s degree in Microbiology from the University of Tennessee. 3. I analyzed the numbers found below using data produced by U.S. Immigration and Customs Enforcement (“ICE”) in response to a request under the Freedom of Information Act (“FOIA”), 2019-ICLI-00010. The data summarizes parole decisions by the ICE Field Offices from January 2016 through February 2019 for arriving aliens found to have a credible fear of persecution. Because the records at issue are voluminous and cannot be conveniently examined in court, this declaration contains a summary of the parole data for the ICE New Orleans Field Office pursuant to Federal Rule of Evidence 1006. 4. The location of New Orleans-specific data in the FOIA response varied depending on the year at issue. For 2018 and 2019, I analyzed fourteen (14) Excel spreadsheets titled
1

Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 3 of 5

“redacted CredFearReport [month/year].” Within those spreadsheets were tabs titled “NOL” which

contained New Orleans-specific data. For 2016 and 2017, I analyzed data in three Excel

spreadsheets that contained, respectively, all 2016 data, cumulative 2017 data from January

through September, and cumulative data from October and November 2017. The New Orleans-

specific data appeared in summarized tabs at the front of each of these three Excel spreadsheets.

To my knowledge, ICE did not provide data on parole decisions by the ICE New Orleans Field

Office in December 2017. Each row of data represented an individual and contained the following

fields: his or her assigned field office; the document control office (“dco”); the date of the credible

fear finding; the date of the parole interview; the date of the parole decision; the parole decision

itself; and if parole was denied, the reasons for the parole denial. Five “denial category” columns

were included to indicate the reason parole was denied for each individual. The five denial

categories are: “identity,” “flight risk,” “danger to the community,” “additional factors” and “prior

parole denial/no basis for re-determination provided.” The field office associated with NOL data

was “FNL” and the “dco” was “NOL.” Those two values were switched a small percentage of the

time.

5.

To calculate the number of parole decisions per month, I used the data in the

column “date parole decision served.” To analyze the outcome of parole decisions, I used the “final

decision” column, which indicated one of two decisions regarding parole: “denied” or “granted.”

To analyze the reasons for denials, I combined the five columns titled “denial category” and

marked whether the denial reason was based on flight risk alone; flight risk with additional factors;

no basis for redetermination on a prior parole denial; or whether no reason for denial was marked

at all.

2

Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 4 of 5
6. From January 2016 through December 2016, the ICE New Orleans Field Office made 229 parole decisions. That year, ICE denied parole in 56 cases (or 24.5 percent of cases). ICE granted parole in 173 cases (or 75.5 percent of cases). No reasons for denial were given in the allotted columns pertaining to “denial category.”1
7. From January 2017 through November 2017,2 the ICE New Orleans Field Office made 78 parole decisions. That year, ICE denied parole in 64 cases (or 82 percent of cases). ICE granted parole in 14 cases (or 18 percent of cases). Regarding reasons for denial, the allotted “denial category” columns contained no reasons 97 percent of the time. The remaining percentage represented two (2) denials that did contain a reason for denial: flight risk.
8. From January 2018 through January 2019,3 the ICE New Orleans Field Office made 130 parole decisions.4 During this period, ICE denied parole in 128 cases (or 98.5 percent of cases). ICE granted parole in two (2) cases (or 1.5 percent of cases). For this period, most denials specified the reason for the denial. In the large majority of cases, the denial was based on flight risk grounds. ICE denied parole based on flight risk in 85 cases, or 66.4 percent of cases involving a denial of parole. Ten of the cases denied based on flight risk were also denied based on ICE finding no basis to re-determine a prior parole denial. One case denied due to flight risk was also denied due to ICE’s determination that the person was a danger to the community. Of the remaining 43 cases
1 We believe that some reasons for denial were listed in the “comments” column, but they did not follow the same structure as those listed in the allotted denial category columns. Many “comments” alluded to the absence of a U.S. Sponsor or U.S. Address. 2 The government provide us with spreadsheets through November 2019; there was no data included for NOL in June 2017 and we did not receive data for December 2017. 3 The government provided us with spreadsheets through February 2019, but there was no data for NOL included in the February 2019 spreadsheet. 4 One parole decision date was marked as September 2019. I believe this was entered erroneously and should have been marked September 2018. This one case is included in the overall 130 figure.
3

Case 1:19-cv-01593-JEB Document 22-3 Filed 07/18/19 Page 5 of 5 (33.6 percent) denied for other reasons outside of flight risk, thirteen (13) were denied solely due to no basis for redetermination and thirty (30) had no reason listed.
I declare under penalty of perjury and under the laws of the District of Columbia and the United States that the foregoing is true and correct to the best of my knowledge. Executed in New York, New York on July 9, 2019. Sophie Beiers
4

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 1 of 6
EXHIBIT
2

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 2 of 6

DECLARATION OF JULIE HARTLE, ESQ.

I, Julie Hartlé, Esq. declare as follows:

1. I am over the age of eighteen, am competent to testify as to the matters below, and

make this declaration based on personal knowledge.

2. I am an attorney in good standing with the State Bar of California since 2018.

3. I work as a solo practitioner defending asylum seekers pro bono. I am also a

consultant specializing in housing policy for HUD low-income and disaster-relief programs.

4. As part of my work, I provide direct representation to a plaintiff and putative class

representative in Heredia Mons v. McAleenan, Case 1:19-cv-01593(JEB) (D.D.C. filed May 30,

2019): M R M H

5. I am providing representation to Mr. M

H

before government

agencies and for two purposes: (i) the Executive Office for Immigration Review, where I represent

him in asylum proceedings before the LaSalle Immigration Court in Jena, Louisiana and (ii) I

collaborate with my co-counsel, Helen Boyer on parole requests to ICE;

6. Mr. M H

suffers from severe food allergies. In ICE custody, the food

provided to him has provoked several severe allergic reactions, some of them life-threatening. On

four occasions, he has gone into anaphylactic shock, a potentially fatal condition where his throat

closes up and he is unable to breathe.

7. Because of his serious medical condition, Mr. M

H

has sought

release on parole five times. The occurrences of anaphylaxis, chest pain, and coughing up blood

continued, even after being transferred to LaSalle ICE Processing Center, supposedly for its

superior health care. One doctor examined Mr. M H

in person and two other doctors

were given permission to look at his medical records for analysis. All three of these doctors

concluded that Mr. M

H

has not received adequate care and that his life is in

imminent danger. Counsel Boyer submitted requests for release on parole with medical

documentation on April 17, 2019, June 5, 2019, and finally July 3, 2019. Counsel Boyer submitted

two doctor’s reports with the first two requests and added a third in the last report.

8. I collaborated with Counsel Boyer and Mr. M H

on his fifth parole

request, particularly to emphasize that Mr. M H

would be represented throughout

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 3 of 6

his asylum proceedings, including throughout attendant appeals, and to alert the agency to its

violation of disability rights law. This led Mr. M H

deportation officer to email

me asking when the assessments were completed and to provide documentation of them.

9. Since the medical assessments were clearly marked in the table of contents for each

parole request, this led me to conclude not only that the deportation officer had not looked at the

documentation submitted with our July 3, 2019, parole request, but that he had not looked at any

medical documentation in the previous requests, either. A man’s life was at stake and the officers

did not even take the time to look at the table of contents of attachments, much less the actual

contents, before denying the requests.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

Executed this 14 day of July, 2019 in Alexandria, Louisiana.

Julie Hartlé, Esq.

7/14/2019

Case 1:19-cv-01G5m9ai3l --PJaEroBle reqDueosct aunmd leitignattio2n2fo-r4M FileMd 07H/18/19 Page 4 of 6
Julie Hartle <julie.hartle@gmail.com>

Parole request and litigation for M

M

H

Moffett, Grayson L <Grayson.L.Moffett@ice.dhs.gov> To: Julie Hartle <julie.hartle@gmail.com>

Good Morning,

Fri, Jul 5, 2019 at 7:19 AM

I have received your request and I am in the process of reviewing the request and will send to FOD Sutterfield for approval or denial.

You have stated that there has been 2 independent medical doctors analysis.

Do you have documentation on these appointments? Can you please provide?

Thanks,

Grayson Moffett
Deportation Officer Enforcement and Removal Operations Immigration and Customs Enforcement 1010 E. Whatley Road Oakdale, LA 71463 Office: (318)335-7500

From: Julie Hartle <julie.hartle@gmail.com> Sent: Friday, July 5, 2019 9:10 AM To: Lund, Trey <Trey.Lund@ice.dhs.gov>; Outreach, New Orleans <NewOrleans.Outreach@ice.dhs.gov>; Moffett, Grayson L <Grayson.L.Moffett@ice.dhs.gov> Cc: Helen Boyer <hb@alotrolado.org> Subject: Parole request and litigation for M M H
July 5, 2019
[Quoted text hidden]
https://mail.google.com/mail/u/0?ik=b6b7190d71&view=pt&search=all&permmsgid=msg-f%3A1638228435617417196&simpl=msg-f%3A16382284356… 1/2

7/14/2019

Case 1:19-cv-01G5m9ai3l --PJaEroBle reqDueosct aunmd leitignattio2n2fo-r4M FileMd 07H/18/19 Page 5 of 6

https://mail.google.com/mail/u/0?ik=b6b7190d71&view=pt&search=all&permmsgid=msg-f%3A1638228435617417196&simpl=msg-f%3A16382284356… 2/2

Case 1:19-cv-01593-JEB Document 22-4 Filed 07/18/19 Page 6 of 6

LIST OF EXIllBITS IN SUPPORT OF REQUEST FOR RELEASE ON PAROLE FOR

M

R M

H

EXHIBIT A Birth Certificate (

2000), Respondent's birth

8-10

certificate from Honduras, including translation.

EXHIBITB

Credible Fear Worksheet and Interview Transcript Establishing Credibility of Identity

11-25

EXHIBITC

Sponsor Letter and Supporting Documents (February 24,

2019), Letter ofsupportfrom T

P

regarding

sponsorship; Mr. P

and Ms. L M

U.S.

passports; Mr. P

U.S. Social Security 1099 and W-2 Form.

26-31

EXHIBITD

Medical Evaluation by Dr. David J. Holcombe (April 30,

2019), Evaluating Mr. M

medical condition, and

concluding that ICE detention "poses a danger to his immediate

health and wellbeing. "

32-33

EXHIBITE

Medical Letter by Dr. Kate Sugarman (May I, 2019),

34

Describing Mr. M

medical conditions, and concluding that

Mr. M

"is at extremely high risk ofdying in ICE custody

from a preventable condition. "

EXHIBITF Medical Letter by Dr. Jessica Bod (July 3, 2019), Describing 35

Mr. M

medical conditions, and concluding that Mr.

M

"is at high risk ofdying in ICE custody."

EXHIBITG Letter from Attorney Julie Hartle (March 11, 2019),

36

Describing attorney's willingness to continue representation of

Mr. M and ensure he attends future court hearings.

EXHIBITH

Letter from Father Timothy L. Kitzke (April4, 2019),

37

Describing the priest's willingness to welcome Mr. M

into

his congregations and connect Mr. M

with spiritual support.

EXHIBIT I

Letter from Voces De La Frontera (April2019), Describing the 38 community organization's willingness to support Mr. M through his integration into the Milwaukee community.

EXHIBIT J

Letter of Support from M

K (February 20, 2019), 39-40

Letter ofsupportfrom a friend ofMr. M and a U.S. citizen.

7

 Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) Ángel Alejandro HEREDIA MONS, et al., on behalf of )

themselves and others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

CHAD WOLF, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,

) Civil Action No ) 19-cv-1593 (JEB) ) )

Defendants.

) )

)

PLAINTIFFS EMERGENCY MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs, members of the class that this Court certified in Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, (D.D.C. Sept. 5, 2019) (hereinafter “Plaintiffs” or “class members”), move for a second preliminary injunction, as set out in the accompanying Memorandum In Support. In their first motion for declaratory and injunctive relief, Plaintiffs’ counsel asserted a claim based on the Administrative Procedures Act (hereinafter “APA”). Plaintiffs asserted that Defendants’, including the New Orleans Field Office of Immigration and Customs Enforcement (hereinafter “NOLA ICE”), unlawful failure to follow the Parole Directive of 2009, as well as their unlawful failure to provide individualized determinations of flight risk and danger, violate the APA.

New facts have arisen that coupled with the Defendants’ continued non-compliance with the September 5, 2019 injunction, are likely to expose Plaintiffs to even more irreparable harm. The rapid spread of the deadly pandemic COVID-19 virus poses a severe threat to Plaintiffs-class members’ physical well-being, leaving Plaintiffs with no other choice than to move for a preliminary injunction, requiring NOLA ICE to immediately conduct individualized (case-by-case) parole assessments for all present and future class members

Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 2 of 4
detained in the NOLA ICE region,1 pursuant to ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009)2, otherwise known as the “Parole Directive.”
Plaintiffs further request that, should this Court order Defendants to conduct immediate, individualized assessments of Plaintiffs-class members’ parole eligibility due to the threat presented by the COVID-19 pandemic, Defendants should also be required to fully comply with all applicable regulations delineated in the Parole Directive, including those that favor the granting of parole to class members who “have serious medical conditions, where continued detention would not be appropriate,” and class members “whose continued detention is not in the public interest.” Parole Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b). As required by the Parole Directive, Defendants should incorporate into their individualized assessment of class members’ parole eligibility, the danger that COVID-19 poses to those in detention, especially those with serious medical conditions; and should weigh whether the continued detention of parole-eligible class members is in the public interest, given the danger posed by the COVID-19 outbreak.
In support of this Motion, Plaintiffs rely upon the accompanying Memorandum, declarations, and exhibits. A proposed order is attached for the Court’s convenience.
STATEMENT PURSUANT TO LOCAL RULE 7(m) On March 20, 2020, pursuant to Local Rule 7(m) of the Fed. R. Civ. Pro., Plaintiffs’ legal counsel emailed Assistant U.S. Attorney Jeremy Simon, Defendant’s legal counsel, to advise of the emergency reasons requiring them to seek this preliminary injunction. In an email
1 Louisiana, Mississippi, Arkansas, Tennessee, and Alabama comprise the NOLA ICE Region. Most class members are held in detention facilities in Louisiana and Mississippi. 2 https://www.ice.gov/doclib/dro/pdf/11002.1-hd-arole_of_arriving_aliens_found_credible_fear.pdf.

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dated March 20, 2020, Mr. Simon informed Plaintiffs’ legal counsel that Defendants would oppose this Motion.

Dated: March 31, 2020

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

Case 1:19-cv-01593-JEB Document 61 Filed 03/31/20 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that, on March 31, 2020, I electronically filed the attached PLAINTIFFS EMERGENCY MOTION FOR PRELIMINARY INJUNCTION with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

4

Case 1:19-cv-01593-JEB Document 61-1 Filed 03/31/20 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................. 2 II. FACTUAL BACKGROUND ............................................................................................ 2
A. The Parties .......................................................................................................................... 2 B. The COVID-19 Virus......................................................................................................... 4 C. COVID-19 Poses a Grave Risk of Harm to Persons in Congregate Unhygienic Environments Such as the Facilities Currently Housing All Class Members. .................... 6 D. Older Adults and Those with Certain Medical Conditions Are Particularly Vulnerable to the Grave Risk of Harm, Including Serious Illness or Death. ...................... 9 E. People Detained in the Region Face an Elevated Risk of COVID-19 Transmission. 10 F. Many Class Members Present High-Risk Vulnerability to COVID-19. ..................... 12 G. This Court Should Require NOLA ICE to Immediately Reassess Parole for All of Class Members and Should Prioritize the Cases Most Vulnerable to COVID-19. ........... 15 III. LEGAL STANDARD ...................................................................................................... 16 A. Preliminary Issues............................................................................................................ 16
1) Jurisdiction..................................................................................................................... 16 2) Class Certification.......................................................................................................... 17 B. Legal Framework Governing Parole Decisions ............................................................ 17 1) The INA and Implementing Regulations ........................................................................ 17 C. Legal Requisites for Establishing a Preliminary Injunction........................................ 22 IV. ARGUMENT.................................................................................................................... 23 A. Likelihood of success on merits ...................................................................................... 23 1) Plaintiffs’ Claims Arise under the APA.......................................................................... 25 2) The Directive is binding o nICE and DHS under the Accardi doctrine......................... 27 a. The Directive is binding because it impacts rights of arriving aliens...................... 27 b. The Directive is binding because the boilerplate language it contains is ineffective and does not enable Defendants to evade legal challenges............................................... 29 3) Defendants persistently refuse to adhere to the binding directive during the COVID-19 pandemic, despite the issuance of a prior order by this Court granting injunctive relief..... 30 a. Parole grant rates continue to be abysmal and a departure from previous application of the Directive, with no rational justification. ............................................. 31 b. Defendants often deny parole without arriving aliens ever having applied, indicating that they are not conducting individualized determinations as required by the Directive. ........................................................................................................................ 32
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c. Defendants explicitly state that applying for parole is futile, and parole grants will not be issued. ........................................................................................................................ 33 d. Defendants fail to provide a reasonable amount of time for arriving aliens to submit parole applications. ................................................................................................. 34 e. Defendants continue to determine flight risk and danger arbitrarily, despite mounting evidence in favor of granting parole................................................................. 34 f. Defendants disregard the vulnerability of individuals with medical issues and ignore provisions that parole of such persons is justified. ............................................... 37 4) Plaintiffs’ claims validly challenge final agency action, entitling them to judicial review of those claims under the APA............................................................................................... 38 5) Defendants’ refusal to adhere to the Directive renders their actions arbitrary and capricious under the INA, requiring their actions to be overturned under the APA. ........... 39 a. Defendants’ actions are arbitrary and capricious under the APA. ......................... 39 b. Defendants’ actions are contrary to law, as they violate the INA............................ 41 B. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction. .............. 42 1) Plaintiffs Will Become Infected with COVID-19 if They Remain in Detention. ............ 43 2) Plaintiffs Will Likely Become Ill and/or Die from Infection if They Remain in Detention.
45 3) Current Protocols of ICE to Address COVID-19 Do Not Address, and Instead Worsen and Increase Likelihood of, Infection and/or Death from COVID-19. ................................. 46 C. The Balance of Harms and the Public Interest Both Favor Injunctive Relief. .......... 47 CONCLUSION ........................................................................................................................... 49
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TABLE OF AUTHORITIES
Cases
Abdi v. Duke, 280 F. Supp. 3d 373, 385 (W.D.N.Y. 2017) .......................................................... 16 Aptheker v. Sec’y of State, 378 U.S. 500, 505-509 (1964) ........................................................... 28 Aracely v. Nielsen, 319 F.Supp.3d 110, 149, 157 (D.D.C. 2018).......................................... passim Bennet v. Spear, ................................................................................................................ 27, 38, 42 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ................ 42, 46 Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C., 2018) ........................................................ passim Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) .......................................... 22 DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989) ................ 28 Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019)
................................................................................................................................................... 22 Hi-Tech Pharmacal Co. v. United States FDA, 587 F. Supp. 2d 1, 8 (D.D.C. 2008) .................. 23 INS v. Yang, 519 U.S. 26 (1996)............................................................................................. 31, 40 Jacksonville Port Auth. v. Adams, 556 F.2d 52, 58–59 (D.C. Cir. 1977) ..................................... 48 Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013) ................................................................... 48 Las Americas v. Trump,
available at https://www.splcenter.org/sites/default/files/documents/0029._03-272020_emergency_motion_for_tro.pdf......................................................................................... 4 Lopez v. FAA, 318 F.3d 242, 246–48 (D.D.C. 2003).................................................................... 30 Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, (D.D.C. Sept. 5, 2019) .. passim Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001) .................................. 23 Morton v. Ruiz, 415 U.S. 199, 231 (1974) ............................................................................. passim R.I.L-R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ................................................... 17, 38, 47 Ramirez v. U.S. Customs & Enf’t, 310 F.Supp.3d 7 (D.D.C. 2018) ....................................... 38, 39 Service v. Dulles, 354 U.S. 363, 38 (1957)................................................................................... 27 Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010) ................................................................... 22 U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)........................................................... 27 Venetian Casino Resort LLC v. EEOC, 530 F.3d 925 (D.D.C. 2008).......................................... 38 Vitarelli v. Seaton, 359 U.S. 535 (1959) ....................................................................................... 27 Youngberg v. Romeo, 457 U.S. 324 (1982)................................................................................... 28 Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................................... 16
Statutes
§ 212(d)(5)(A)............................................................................................................................... 41 5 U.S.C. § 551......................................................................................................................... 26, 29 5 U.S.C. § 701............................................................................................................................... 25 5 U.S.C. § 704......................................................................................................................... 28, 38 5 U.S.C. § 706............................................................................................................................... 25 5 U.S.C. § 706(2)(A)............................................................................................................... 39, 40 5 U.S.C.A. § 553 ........................................................................................................................... 42
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5 U.S.C.A. § 553 A ....................................................................................................................... 25 6 U.S.C. § 251-98 ......................................................................................................................... 24 8 U.S.C. § 1103(a)(3) (2008) ........................................................................................................ 24 8 U.S.C. § 1182(d)(5)(A) .............................................................................................................. 18 8 U.S.C. § 1225(b)(1)(A)(ii) ......................................................................................................... 17 8 U.S.C. § 1252(f)(1)..................................................................................................................... 16 Administrative Procedures Act .............................................................................................. passim Immigration and Nationality Act .............................................................................................. 1, 17 INA § 212(d)(s)(A) ....................................................................................................................... 24 Rules 8 C.F.R. § 208.30(f) ...................................................................................................................... 17 8 C.F.R. § 212.5 .......................................................................................................... 24, 41, 42, 47 8 C.F.R. § 212.5(b) ................................................................................................................ passim 8 C.F.R. § 235.3(c)........................................................................................................................ 18 8 C.F.R. 212.5(c)-(d)..................................................................................................................... 41 Rule 23 ............................................................................................................................................ 1
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In accordance with this Court’s decisions in Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, (D.D.C. Sept. 5, 2019), and Damus v. Nielsen, 313 F. Supp. 3d 317, (D.D.C., 2018), and due to the likelihood of irreparable harm that COVID-19 poses to Plaintiffs-class members’ well-being and safety, Plaintiffs move this Court to expeditiously grant their request for a preliminary injunction and order Defendants to act as follows: 1) immediately conduct individualized parole assessments for all present and future members of the provisional class, as defined by this Court in Mons1; 2) enjoin from denying parole to any provisional class members, absent an individualized determination that such provisional class member presents a flight risk or a danger to the community, as concluded pursuant only to the process2 and limits on use of discretion provided in Enforcement Directive No. 11002.1 (“Directive”); 3) base individualized determinations of flight risk and danger to the community on the specific facts of each provisional class member’s case, not categorical criteria; 4) provide class members with parole determinations that conform to all substantive and procedural requirements of the Directive; 5) given the dangers posed by COVID-19, ensure compliance with parole standards pertaining to individuals with a) serious medical conditions, and/or b) whose continued detention is not in the public interest, pursuant to the Immigration and Nationality Act (“INA”) and its implementing regulations.
1 The Court finds that this proposed class meets the conditions supplied by Rule 23 for substantially the same reasons that the Damus plaintiffs satisfied those same requirements. See Damus, 313 F. Supp. 3d at 329–35. Mons v. McAleenan, 2019 WL 4225322, at *8. 2 Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009).
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INTRODUCTION Plaintiffs’ travails are not novel to this Court.3 Despite this Court’s prior Order, over seventy-five percent of Plaintiffs are still denied parole without an individualized assessment.4 The harrowing COVID-19 pandemic that has ravaged most of the world is sweeping through the United States, presenting a grave threat of irreparable harm to Plaintiffs-class members. Plaintiffs first discuss the nature and scope of this deadly, novel disease, the magnitude of which is unprecedented, and the conditions present in the facilities where Plaintiffs-class members are detained, rendering them vulnerable to imminent risk of irreparable harm and death during the pandemic. Plaintiffs also present evidence supporting their request for immediate, individualized assessments of parole eligibility for all present and future class members; and urge this Court to require NOLA ICE officials to comply with the applicable regulations and parole standards when engaging in these immediate, individualized parole assessments, including standards applicable to class members with serious medical conditions, and whose continued detention is not in the public interest, given the dangers posed by the COVID-19 pandemic.
I. FACTUAL BACKGROUND A. The Parties
Plaintiffs are all present and future members of the class that this Court has provisionally certified, (Doc. No. 33), i.e., arriving aliens eligible for parole, who are currently detained or will be detained by Defendant NOLA ICE. Plaintiffs are or will be detained at the various detention
3 See Order granting preliminary injunction and provisional class certification, R. Doc. 33. 4 Since this Court’s September 5 Order, Defendants have submitted five reports which Plaintiffs discuss in more detail in Section III(B)(2), infra.
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facilities that the NOLA ICE region comprises,5 as they await the final adjudication of their civil immigration removal proceedings.
Many Plaintiffs are older adults or have medical conditions that lead to high risk of serious COVID-19 infection, including diabetes, asthma, hypertension, human immunodeficiency virus (HIV), weakened immune systems from prior treatments for cancer, and psychiatric illness.6 The State of Louisiana is home to the largest number of immigration detention facilities in the NOLA ICE region, with Mississippi a distant second.
The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 is so grave and imminent that it must be properly weighed by ICE in an immediate assessment of parole for all class members, particularly as it relates to the Directive’s express language regarding people who have serious medical conditions, and people whose continued detention is not in the public interest. For these reasons, Plaintiffs request a preliminary injunction requiring Defendants to conduct immediate, individualized parole assessments for all class members presently detained in the NOLA ICE region and for all future class members thereafter.
5 including but not limited to Adams County Detention Center (“Adams”), Catahoula Correctional Center (“Catahoula”), Pine Prairie ICE Processing Center (“Pine Prairie”), Richwood Correctional Center (“Richwood”), River Correctional Center (“River”), South Louisiana Detention Center (“South Louisiana”), Tallahatchie County Correctional Facility (“Tallahatchie”), LaSalle ICE Processing Center (“LaSalle”), and Winn Correctional Center (“Winn”). 6 “In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness,” FrancoParedes Exp. Decl. ¶17, Table 1.
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B. The COVID-19 Virus The novel COVID-19 virus has led to a global pandemic. Over the last several months,
634,835 people worldwide have received confirmed diagnoses of COVID-19, and over 29,895 people have died.7 The United States now leads in the number of confirmed cases globally.8
There is no vaccine against COVID-19 and there is no known cure.9 According to preliminary data from China, South Korea, Italy, Spain, and the United States, 80 percent of confirmed cases tend to occur in persons 30 to 69 years of age regardless of underlying medical conditions, and 20 percent of those individuals develop severe symptoms or become critically ill. Franco-Paredes Exp. Decl. ¶17. COVID-19 is most likely to cause serious illness and elevated risk of death for older adults and those with certain medical conditions or underlying disease. Franco-Paredes Exp. Decl. ¶12. Those particularly vulnerable includes people with weakened immune systems (including due to cancer treatment), chronic lung disease, asthma, serious heart conditions, diabetes, renal failure, liver disease, and possibly pregnancy.10
Among those with severe clinical manifestations, regardless of their age or underlying medical conditions, the virus progresses into respiratory failure, septic shock, and multiorgan dysfunction requiring intensive care support including the use of mechanical ventilator support. Franco-Paredes Exp. Decl. ¶17. The only known effective measures to reduce the risk of serious
7 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report-69, March 29, 2020, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200329sitrep-69-covid-19.pdf?sfvrsn=8d6620fa_4. 8 “The U.S. Now Leads the World in Confirmed Coronavirus Cases,” New York Times, March 26, 2020, https://www.nytimes.com/2020/03/26/health/usa-coronavirus-cases.html. 9 Expert Declaration of Joshua Sharfstein, ¶ 6, filed in support of Plaintiffs’ Motion for Temporary Restraining Order in Las Americas v. Trump, available at https://www.splcenter.org/sites/default/files/documents/0029._03-272020_emergency_motion_for_tro.pdf. (“Sharfstein Decl.”). See also, World Health Organization, Q & A on COVID-19, March 9, 2020, https://www.who.int/news-room/q-a-detail/q-acoronaviruses. 10 Id.
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illness or death caused by COVID-19 are social distancing and improved hygiene, which have led to unprecedented public health measures around the world and in the United States.11
Detention of any kind requires large groups of people to be held together in a confined
space and creates the worst type of setting for curbing the spread of a highly contagious infection
such as COVID-19. Franco-Paredes Exp. Decl. ¶23. People who are confined in detention centers
will find it virtually impossible to engage in the necessary social distancing and hygiene required
to mitigate the risk of transmission, even with thoughtful guidance and plans in place. Franco-
Paredes Exp. Decl. ¶¶11,12. For this reason, several jurisdictions at the urging of public health experts, are ordering the release of people from jails, prisons and detention centers.12
Moreover, a release of and moratorium on the detention of future class members allows for
greater risk mitigation for all people detained or working in these detention centers. Franco-
Paredes Exp. Decl. ¶¶ 22,28. Release of Mons class members from custody would also reduce the
burden on the region’s limited health care infrastructure, as it lessens the likelihood of an
overwhelming number of people becoming seriously ill from COVID-19 at the same time. Franco-
Paredes Exp. Decl. ¶27. Louisiana Governor John Bel Edwards recently reported that Louisiana has seen the fastest rate of growth of COVID-19 virus in the world.13 The situation is so dire in
11 Expert Declaration of Dr. Robert Greifinger, ¶ 4, available at https://www.aclu.org/legaldocument/dawson-v-asher-expert-declaration-dr-robert-greifinger. 12 Prison Policy Initiative, “Responses to the Covid-19 Pandemic,” March 27, 2020, available at https://www.prisonpolicy.org/virus/virusresponse.html. See also BBC News, “US jails begin releasing prisoners to stem Covid-19 infections,” March 19, 2020 available at https://www.bbc.com/news/world-us-canada-51947802 (noting efforts in the states of Ohio, California, Colorado, New York, Alabama, New Jersey, South Carolina, Florida, Texas, Washington, Utah and Louisiana ordering the release of people from incarceration and detention) 13 Hollie Silverman, Louisiana Governor says his state has the fastest growth rate of coronavirus cases in the world, CNN.COM (March 24, 2020), https://www.cnn.com/2020/03/23/us/louisiana-coronavirus-fastestgrowth/index.html (accessed March 26, 2020). See also, Louisiana Governor’s Office of Homeland Security and Emergency Preparedness, COVID-19 Louisiana Case Info, https://gov.louisiana.gov/assets/docs/covid/govCV19Brief-2.pdf (releasing data by a researcher at
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Louisiana that on March 22, 2020, Governor Bel Edwards issued a statewide “stay-at-home” order,
in an attempt to stem the horrific growth of the COVID-19 virus in the state.14
C. COVID-19 Poses a Grave Risk of Harm to Persons in Congregate Unhygienic Environments Such as the Facilities Currently Housing All Class Members.
Immigration detention centers in the United States are tinderboxes for the transmission of
highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19.
Franco-Paredes Exp. Decl. ¶15. In addition, these detention centers are often unhygienic
environments. Scharf Exp. Decl. ¶18 at (a)(i). Once an outbreak is underway inside a detention
facility, a person in such a facility is expected to be at a high risk of acquiring the virus and
transmitting it to others inside.15 Infectious diseases that are communicated by air or touch are
more likely to spread in these environments. Franco-Paredes Exp. Decl. ¶23. A recent study
showed that the virus could survive for up to three hours in the air, four hours on copper, up to
twenty-four hours on cardboard, and up to two to three days on plastic and stainless steel.16 This
presents an increased danger for the spread of COVID-19 if and when it is introduced into a
detention facility. Franco-Paredes Exp. Decl. ¶¶18,20.
the University of Louisiana Lafayette found that Louisiana presently has the fastest spread of COVID-19 of any region in the world). 14 Same Karlin, John Bel Edwards urges residents to heed stay-at-home order, THE ADVOCATE (March 23, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_df60a9ec-6d5c-11eaac94-c3207fa0a583.html (accessed March 26, 2020); Office of the Louisiana Governor, https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf (last accessed March 26, 2020). 15 Tulane Open Letter, available at https://sph.tulane.edu/open-letter-covid19-jail, last accessed Mar. 26, 2020. 16 Novel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show. TIME (https://time.com/5801278/coronavirus-stays-on-surfaces-days-tests/) (last visited March 26, 2020). A new study of an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom. Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVID-19 cases, Wenzhou, China, 2020. Emerg Infect Dis. 2020 Jun. (https://doi.org/10.3201/eid2606.200412) (last visited March 26, 2020).
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Enclosed group environments, like cruise ships or nursing homes, have become the sites for the most severe outbreaks of COVID-19.17 Immigration detention facilities have even greater risk of infectious spread because of crowding, the proportion of vulnerable people detained, and often scant medical care resources. Franco-Paredes Exp. Decl. ¶¶12,13. People living in such close quarters cannot achieve the “social distancing” needed to effectively prevent the spread of COVID19. Franco-Paredes Exp. Decl. ¶12. See also Scharf Exp. Decl. ¶¶24,26. In addition, many immigration detention facilities lack adequate medical infrastructure to address the spread of infectious disease and treatment of people most vulnerable to illness in detention. Franco-Paredes Exp. Decl. ¶ 13.
Class members are held in crowded confinement with dangerously unsafe hygienic conditions. At Richwood, for example, some are housed in dorms with as many as 100 men who are forced to share four toilets, four sinks, and five showers in a shared room. O.M.H. Decl. ¶10. At Adams, some are housed in dorms holding as many as 240 men who are forced to share six toilets, 12 sinks, and one shower room with 12 showerheads in close proximity. S.U.R. Decl. ¶13. At South Louisiana, as many as 72 women are housed in a single dorm with beds less than two feet apart from one another and forced to share three toilets, three sinks, and six phones, none of which are properly sanitized. K.S.R. Decl.¶15; L.P.C. Decl. ¶¶14,16. These women also report that they are not provided enough toilet paper and had no toilet paper for nearly a week in March 2020. Id. At LaSalle, some class members are housed in dorms with more than 90 men who are forced to share five toilets, eight sinks and one shower room. T.M.F. Decl. ¶14.
17 Centers for Disease Control and Prevention, https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship; https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-termcare-facilities.html, last accessed March 26, 2020.
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Class members also report suffering from diarrhea and lack of nutrition due to the poor quality of food they are provided. S.U.R. Decl. ¶13; O.M.H. Decl. ¶10; K.S.R Decl. ¶10; R.P.H. Decl. ¶19; and L.P.C. Decl. ¶23. At most of the facilities, class members report that detention center staff are not taking recommended precautions, are not providing COVID-19 education, are not consistently utilizing masks or gloves, and are not providing hand sanitizer, disinfectant or sufficient soap for detainees to clean themselves. T.M.F. Decl. ¶¶15-16, 19; Y.P.T. Decl. ¶¶15-16, 22-23; R.P.H. Decl. ¶¶19-21; L.P.C. Decl ¶¶15, 22; O.M.H. Decl. ¶ 8; S.U.R. Decl. ¶¶ 14-15; and K.S.R. Decl. ¶¶14,18. Many who are desperate for information related to COVID-19 have been met with force or harm in these facilities.18 Under these conditions, class members cannot practice proper social distancing or hygiene, the only known methods to stem the rapid spread of COVID19. Franco-Paredes Exp. Decl. ¶¶11,12; see also Scharf Exp. Decl. ¶24.
Moreover, given the high population density of these facilities and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, who is shedding the virus enters a facility. Franco-Paredes Exp. Decl. ¶20. Of those infected, about one-fifth will get so ill that they require hospital admission. Id. About ten percent will develop severe disease requiring treatment only available in the intensive care unit, at least five percent of whom will likely die from respiratory failure, septic shock and multiorgan failure. Id. If those who require it cannot be hospitalized, many more will die in detention without access to necessary medical equipment, such as ventilators. Id. at ¶21.
18 Mother Jones, “ICE Detainees Were Pepper-sprayed During a Briefing on Coronavirus,” March 26, 2020, available at https://www.motherjones.com/politics/2020/03/ice-detainees-were-peppersprayed-during-a-briefing-on-coronavirus/?fbclid=IwAR0vM4J5UTiubdNO_XCc5m2MWYyVf2vU1FFzwjNuU-KTAWGz01nA2Y6V1A. See also Mother Jones, “ICE Detainee Reports He was Pepper-Sprayed and Sent to Isolation,” March 25, 2020, available at https://www.motherjones.com/politics/2020/03/ice-geo-detention-pine-prairie-pepper-spraylouisiana/.
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D. Older Adults and Those with Certain Medical Conditions Are Particularly Vulnerable to the Grave Risk of Harm, Including Serious Illness or Death. The COVID-19 pandemic is devastating the United States. As of March 29, 2020, there
have been 103,321 confirmed cases and 1,668 deaths.19 Moreover, the transmission of COVID-19 grows exponentially. Franco-Paredes Exp. Decl. ¶20-21. People over the age of 50 and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious COVID-19 disease for people of any age, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, cancer treatment, HIV, or other autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, pregnancy and psychiatric illness. Franco-Paredes Exp. Decl. ¶16, Table 1.
In most people, COVID-19 causes fever, cough, and shortness of breath. But for people over fifty or with high-risk medical conditions, the shortness of breath can often be severe.20 Even in younger and healthier people, infection of this virus requires supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.21 Most people in higher risk categories who develop serious disease, however, will need advanced support. Franco-Paredes Exp. Decl. ¶24. This level of support can quickly exceed local health care resources. Franco-Paredes Exp. Decl. ¶26.22
19 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report-69, March 29, 2020, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200329sitrep-69-covid-19.pdf?sfvrsn=8d6620fa_4. 20 Expert Declaration of Dr. Jonathan Golob ¶5, available at https://www.aclu.org/legaldocument/dawson-v-asher-expert-declaration-dr-jonathan-golob?redirect=dawson-v-asher-expertdeclaration-dr-jonathan-golob. 21 Id. 22 According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care
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Preliminary data from China showed that twenty percent of people in high-risk categories
who have contracted COVID-19 there have died.23 Social distancing and vigilant hygiene,
including washing hands with soap and water, are the only known effective measures for protecting
vulnerable people from COVID-19. Scharf Exp. Decl. ¶24. Projections by the Centers for Disease
Control and Prevention (CDC) indicate that between 160 million and 214 million people in the
United States could be infected with COVID-19 over the course of the epidemic without effective
public health intervention, with as many as 1.7 million deaths in the most severe projections.24
Many Plaintiffs qualify as having high-risk vulnerability to COVID-19. Infra Note, Section IV.
E. People Detained in the Region Face an Elevated Risk of COVID-19 Transmission.
The NOLA ICE region comprises five states: Louisiana, Mississippi, Alabama, Arkansas,
and Tennessee. The majority of class members are housed in facilities located in Mississippi and
Louisiana, with the latter state hosting the largest number of detention facilities, housing as many
as 8,000 people25 at any given time in aggregate.26
systems. For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent. Franco-Paredes Exp. Decl. ¶26 23 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”); Wei-jie Guan et al., Comorbidity and its impact on 1,590 patients with COVID-19 in China: A Nationwide Analysis, medRxiv (Feb. 27, 2020), at 5. 24 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. TIMES (March 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html (accessed March 26, 2020). 25 “[W]here the immigrant detainee population has surged in recent months and hit 8,000 earlier this year.” PBS News, December 4, 2019, available at https://www.pbs.org/newshour/nation/iceconfirms-officers-in-louisiana-jail-pepper-sprayed-protesting-migrants. 26 As stated supra, Louisiana has seen the fastest rate of growth of COVID-19 infection for the first 13 days of any area in the world, prompting the Governor to issue a “stay-in-place” order to stem the tide of COVID-19’s rapid spread. See Office of the Louisiana Governor, https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf (last accessed March 26, 2020).
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As of March 29, 2020, there were 3,540 confirmed cases of COVID-19 and 151 deaths from COVID-19 reported in Louisiana.27 As of March 29, 2020, there were 847 confirmed cases and 16 deaths from COVID-19 reported in Mississippi.28 The COVID-19 outbreak in Louisiana has resulted in unprecedented health measures to facilitate and enforce social distancing, as evidenced by the Governor’s “stay-in-place” order issued March 22, 2020.29 While schools, businesses, and government facilities close around the state, a high risk remains that COVID-19 will spread at the numerous immigration detention facilities in the State. Franco-Paredes Exp. Decl. ¶ 15.
Louisiana has the highest per capita rate of COVID-19 incidence in the world. Scharf. Exp. Decl. ¶17 at (h). The areas in which ICE NOLA centers are located are characterized by low medical access and public citizen health illiteracy. Id at (i). The managers hired by the region’s ICE contractors (namely the GEO Group and LaSalle Corrections) have little training to cope with infectious disease. Id at (j).30 COVID-19 has already begun to spread within Louisiana’s carceral system. At the Federal Correctional Center in Oakdale, Louisiana which is located a few feet away from the Oakdale Immigration Court and a mere twenty-minute drive from Pine Prairie, at least sixty inmates are in quarantine and at least one has died due to a COVID-19 outbreak.31
27 Louisiana Department of Health statistics, updated daily, available at: http://ldh.la.gov/Coronavirus/. 28 Mississippi Department of Health statistics, updated daily, available at: https://msdh.ms.gov/msdhsite/_static/14,0,420.html. 29 Office of the Louisiana Governor, https://gov.louisiana.gov/assets/Proclamations/2020/JBE33-2020.pdf (last accessed March 26, 2020). 30 See also Declaration of Laura G. Rivera, Esq. 31 Washington Post, “An explosion of coronavirus cases cripples a federal prison in Louisiana,” March 29, 2020, available at https://www.washingtonpost.com/national/an-explosion-ofcoronavirus-cases-cripples-a-federal-prison-in-louisiana/2020/03/29/75a465c0-71d5-11ea-85cb8670579b863d_story.html.
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F. Many Class Members Present High-Risk Vulnerability to COVID-19. People who are over fifty or of any age with certain specified medical conditions, “are
deemed to be at high risk of developing severe disease and dying from COVID-19.” FrancoParedes Exp. Decl. ¶16. R.P.H. is a 50-year-old Cuban national currently detained at South Louisiana. R.P.H. Decl. ¶1. She has been detained by ICE since July 25, 2019. Id at ¶13. R.P.H. is a breast cancer survivor who has undergone multiple rounds of radiation throughout her life and is currently experiencing spinal cord inflammation affecting her nervous system. Id at ¶¶4-5,20. She is eligible for parole, but she has been denied four times despite submitting requests supported by evidentiary documents. Id at ¶14. R.P.H.’s health is rapidly deteriorating in detention, where she has experienced flu-like symptoms including body pain, sore throat, ear pain, fever, dizziness, nausea, headaches, and loss of vision. Id at ¶¶15-18. She is exposed to at least seventy-two other detained women, with many presenting flu-like symptoms and is unable to practice social distancing. Id at ¶¶22,25. R.P.H. is critically vulnerable to COVID-19 because of her weakened immune system, history of recurring cancer, and the conditions of confinement at South Louisiana.
O.M.H. is a thirty-two year-old Venezuelan national detained at LaSalle. O.M.H. Decl. ¶1. He has been detained by ICE since May 2019, and was recently transferred from Richwood, where he spent most of his time in detention. Id at ¶¶1,4. He is eligible for parole, but his requests for release have not been granted and his last application remains pending. Id at ¶¶6,10. O.M.H. is HIV-positive and suffers from Hepatitis C, depression, and anxiety. Id at ¶¶1,6. O.M.H. was not provided medication to treat his HIV condition until about January 2020. Id at ¶6. Despite the threat of COVID-19 and the overcrowded dorms, ICE continued to transfer new detainees to Richwood as recently as March 23, 2020, without implementing any proper quarantine precautions. Id at ¶9. O.M.H. lost a significant amount of weight, necessitating at least two visits
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to the nearest hospital. Id at ¶¶9,11. O.M.H. is vulnerable to COVID-19 because of his HIV and Hepatitis C diagnoses, as well as his deteriorating health due to his conditions of confinement.
B.A.E. is a Cameroonian national currently detained at LaSalle. B.A.E. Decl. ¶1. He has been detained by ICE since October 2019. Id at ¶6. B.A.E. suffers from a chest muscle injury, a recurrent fever, and a wound in his throat. Id at ¶ 8-9. He is currently seeing blood in his stool and when he coughs. Id. He is eligible for parole and has applied three times, but all his requests were denied. Id. Despite his symptoms, LaSalle has not provided him with adequate medical care, refusing to run tests to determine the cause of his ailments. Id. B.A.E. is vulnerable to COVID-19 because of his current state of health and due to the conditions of confinement at LaSalle.
Y.P.T. is a thirty-year-old Cuban national detained at Catahoula. Y.P.T. Decl. ¶1. Y.P.T. has been detained by ICE since August 2019, and is eligible for parole. Id at ¶¶8,10. Y.P.T. applied for parole three times, but his requests were denied. Id at ¶¶10,27. In or about February 2020, he suffered a fall that resulted in a right foot fracture. Id at ¶18. He was forced to wait over one week before being taken to a hospital to get a proper diagnosis of his fracture. Id. His ankle and foot remain swollen. Id. Y.P.T. has been confined to a wheelchair for over one month and is unable to bathe or mobilize without the assistance of other detained men. Id at ¶19. During a recent hospital visit, Y.P.T. was openly exposed to at least twelve other individuals without any social distancing measures or other precautions to protect him and others. Id. Y.P.T. is vulnerable to COVID-19 due to his weakened health as a result of his immobility and his conditions of confinement.
S.U.R. is a 59-year-old Nicaraguan national detained at Adams. S.U.R. Decl. ¶1. S.U.R. has been detained by ICE for over 13 months Id. S.U.R. suffers from hypertension and a systolic heart murmur, requiring medication and medical supervision. Id. He is eligible for parole but was denied once without the opportunity to affirmatively apply. Id at ¶¶7-9. He filed a redetermination
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request but never received a response. Id. S.U.R. is held in a dorm with 240 men, some of whom are over the age of fifty-five and others who suffer from illnesses including diabetes, asthma and hypertension. Id at ¶¶13,16. S.U.R. is critically vulnerable to COVID-19 because of his age and significant health conditions.
T.M.F. is a 44-year old Cameroonian national detained at LaSalle. T.M.F. Decl. ¶ 1. T.M.F. has been detained by ICE since October 28, 2019. Id. at ¶ 7. T.M.F. suffers from depression and chronic injuries due to torture he endured in Cameroon, including to his eyes, back, wrists and knees. Id at ¶ 13. He is eligible for parole and has applied twice, but both requests were denied. Id at ¶¶ 9-10. An immigration judge granted T.M.F. Withholding of Removal in early March 2020, but ICE refuses to release him from detention. Id at ¶¶10-11. Throughout his detention, T.M.F.’s conditions of confinement have been unsanitary and lacking in access to adequate medical care. Id at ¶¶12-15. T.M.F. is vulnerable to COVID-19 because of his chronic health issues and due to his conditions of confinement.
K.S.R. is a twenty-seven-year-old Cuban national detained at South Louisiana. K.S.R. Decl. ¶1. She has been detained by ICE since October 2019. Id at ¶5. She is parole-eligible but her multiple requests were denied, despite extensive supporting evidence in her applications. Id. ¶7. K.S.R. was diagnosed with H1N1 influenza in early March 2020, after she experienced high fever, vomiting, and coughing. Id. She continues to have flu-like symptoms with minimal improvement. Id at ¶9. K.S.R. was placed in isolation for six days without being provided hygiene products, food, or medical attention. Id at ¶¶9-11. K.S.R. shares her dorm with at least fifty-two other women living in close proximity to each other. Id at ¶¶8,12-13. Some of K.S.R.’s dormmates are elderly women, cancer survivors, or suffer from chronic illnesses including diabetes, asthma, hypertension, and lupus. Id at ¶¶14-15. K.S.R. and the other detainees in her dorm are exposed to
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guards who do not exercise safety precautions or provide education to prevent COVID-19 from spreading in the facility. Id at ¶¶16-17. K.S.R. is vulnerable to COVID-19 because of her weakened immune system as a result of contracting H1N1 influenza and her conditions of confinement.
G. This Court Should Require NOLA ICE to Immediately Reassess Parole for All of Class Members and Should Prioritize the Cases Most Vulnerable to COVID-19. As risk mitigation is the only known strategy that can protect people from COVID-19,
public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable detainees from custody. Franco-Paredes Exp. Decl. ¶¶ 2728. See also Scharf Exp. Decl. ¶¶ 18, 34. Dr. Peter Scharf, a correctional health expert, has concluded that “[t]he best epidemiological models available, based on valid scientific research, suggest widespread COVID-19 contagion in this region’s ICE facilities, which will lead to broad contagion unless release efforts are initiated in a rapid timeframe.” Exp. Decl. ¶ 4. Dr. Scarf added that, “[t]he reality that this region’s ICE facilities are located in remote or rural areas with limited resources and that medical resources proximate to the relevant ICE detention facilities leads to the conclusion that, were a COVID-19 infection to occur, widespread, long-term morbidity and mortality are more probable than not.” Id.
Dr. Carlos Franco-Paredes, an infectious diseases expert, recommends “releasing detain[ed] asylum seekers on parole from these centers” because it “constitutes a high-yield public health intervention that may significantly lessen the impact of this outbreak.” Franco-Paredes Exp. Decl. ¶28. He further recommends that ICE should focus on “targeting the release of persons in the age groups at risk of severe disease and death and persons with underlying medical conditions” as it “may lessen the human and financial costs that this outbreak may impose.” Id.
All class members are vulnerable to serious illness or death if they remain in civil detention in the facilities that NOLA ICE administers. Franco-Paredes Exp. Decl. ¶15. Class members risked
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their lives to escape persecution and torture in their home countries for what they believed was a safe haven in the United States. These asylum-seekers now find themselves trapped in a what has essentially become a ticking-timebomb and, for many, a tomb.
II. LEGAL STANDARD A. Preliminary Issues
1) Jurisdiction. This Court has jurisdiction to adjudicate Plaintiffs’ Emergency Motion for Preliminary Injunction.32 As a result of the COVID-19 crisis, Plaintiffs seek an injunction requiring that NOLA ICE officials immediately administer to all present and future class members individualized parole assessments, in a method consisted with the applicable regulations and standards of the Directive; they are not seeking to challenge the outcome of the individualized parole assessments itself. See Abdi v. Duke, 280 F. Supp. 3d 373, 385 (W.D.N.Y. 2017) (federal district court had jurisdiction beyond the jurisdictional bar of § 1252(a)(2)(B)(ii), where plaintiffs were not asking the court to review the propriety of any given parole decision, but, instead, simply sought compliance with certain minimum procedural safeguards when parole decisions are made); Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that §1252(a)(2)(B)(ii) does not entirely strip federal courts of jurisdiction over claims relating to the parole process). Nor do Plaintiffs seek to violate the INA by enjoining the operation of any detention statute, in violation of 8 U.S.C. § 1252(f)(1). Rather, Plaintiffs assert that Defendants continue to defy this Court’s injunction, by ignoring the regulations and standards of the Directive, and as a result, have placed current and future class members at risk of irreparable harm from exposure to COVID-19:
32 See, Mons 2019 WL 4225322, at *4 (“the plaintiffs there and here, however, “are not challenging the outcome of ICE’s decisionmaking, but the method by which parole is currently being granted (or denied)) (emphasis added); Damus 313 F. Supp. 3d at 327
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“[b]ut ‘[w]here ... a petitioner seeks to enjoin conduct that allegedly is not even authorized[,] ... the court is not enjoining the operation of [the statute], and [INA] – § 1252(f)(1) therefore is not implicated.’” Mons 2019 WL 4225322, at *4 (internal quotations and citations omitted). Therefore, Plaintiffs here challenge “‘an overarching agency’ action as unlawful – in this case, Defendants’ systematic failure to follow the Directive [and this Court’s September 5 Order], and to instead impose detention without its safeguards and individualized determinations.” Damus, 313 F. Supp. 3d at 328. (citing R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015)). In this case, NOLA ICE’s disavowal of the Directive will likely result in irreparable harm to the Plaintiffs, as outbreaks of the deadly COVID-19 are likely to sweep through the Louisiana detention facilities housing class members. 2) Class Certification Plaintiffs are part of the class that this Court certified, consisting of: “[(1)] [a]ll arriving asylum-seekers (2) who receive positive credible fear determinations; and (3) who are or will be detained by U.S. Immigration and Customs Enforcement; (4) after having been denied parole by the New Orleans ICE Field Office.’” Mons, 2019 WL 4225322, at *8; See also, Damus 313 F. Supp. 3d at 329–35. B. Legal Framework Governing Parole Decisions
1) The INA and Implementing Regulations The Immigration and Nationality Act (hereinafter “INA”), sets out the process by which noncitizens can apply for asylum. See 8 U.S.C. § 1225(b)(1)(A)(ii). Under the INA, if an interviewing immigration officer “determines that an asylum-seeker has a ‘credible fear’ of persecution in her home country, that person ‘shall be detained for further consideration of [her] application.’” Id. § 1225(b)(1)(B)(ii); see also 8 C.F.R. § 208.30(f) (describing the procedures surrounding a positive finding of credible fear). In addition, the INA allows the Attorney General to temporarily parole detained asylum-seekers who have received a positive credible fear finding:
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“permitting these individuals for ‘urgent humanitarian reasons or significant public benefit.’ See 8 U.S.C. § 1182(d)(5)(A).
The INA’s implementing regulations further provide that DHS must exercise its parole discretion on a “case-by-case basis” and that it may parole arriving aliens who “present neither a security risk nor a risk of absconding” and “whose continued detention is not in the public interest”. 8 C.F.R. § 212.5(b); Mons, 2019 WL 4225322, at *1; see also 8 C.F.R. § 235.3(c).33
2) The Directive The Directive defines circumstances under which there is a “public interest” in granting parole pursuant to the INA and implementing regulations. It provides that, absent exceptional overriding factors, an asylum-seeker who has established a credible fear of persecution should be granted parole in the “public interest,” and released from detention while pursuing an asylum claim, so long as the individual establishes their identity and presents neither a flight risk nor danger to the community. Directive ¶ 6.2. In considering parole applications, the Directive requires 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. The Directive also delineates a number of procedural requirements for DHS’s adjudication of parole applications. These prescribe that the agency must inform asylum-seekers that they have a right to seek parole in a language they understand,” id. at ¶ 6.1; conduct a parole interview within “seven days following a finding that an arriving [noncitizen] has a credible fear,” id. at ¶ 8.2; provide written notification of the parole decision that contains “a brief explanation of the reasons for any decision to deny parole” within seven days of the interview, id. at ¶ 6.5-6.6;
33 “[a]gency regulations provide that the Secretary of Homeland Security may parole asylum-seekers who are ‘neither a security risk nor a risk of absconding,’ in the service of such ‘urgent humanitarian reasons or significant public benefit.” 8 C.F.R. § 212.5(b); Mons, 2019 WL 4225322, at *1; see also 8 C.F.R. § 235.3(c)
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notify applicants whose applications are denied that they may request a redetermination, id. at § 8.2; and, consider whether setting a reasonable bond and/or” an alternative to detention program would mitigate any flight risk concerns, id. at ¶ 8.3.2.c.
Moreover, the Directive’s applicable regulations describe five categories of “aliens who may meet the parole standards based on a case-by-case determination, provided they do not present a flight risk or security risk . . .” Id. at ¶ 4.3. Among the five categories are: “(1) aliens who have serious medical conditions, where continued detention would not be appropriate;” and “(5) aliens whose continued detention is not in the public interest.” Id. (emphasis added).
ICE Field Offices have historically relied on the Directive to grant parole to thousands of asylum-seekers with credible fears of persecution, based on individualized findings that their detention was unnecessary. This is not surprising, as the overwhelming majority of asylum-seekers who establish a credible fear lack any criminal history, pose no threat to public safety, and do not need to be detained to ensure their appearance for court proceedings.34 Since enacting the Directive, DHS has not revoked or amended it.
This Court has acknowledged that, since approximately 2017, the NOLA ICE Field Office has engaged in a blanket parole-denial policy, making NOLA ICE the region with lowest percentage of parole grants in the United States: “the percentage of asylum-seekers that that Office has released on parole has dramatically declined in recent years. The Office currently retains the lowest release rate of any jurisdiction in the country, having denied 98.5% of release requests in
34 See, e.g., Mark Noferi, “A Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers” at 1, 3 (July 2015) (summarizing research showing that asylum seekers are predisposed to comply with legal processes), available at: https://www.americanimmigrationcouncil.org/sites/default/files/research/a_humane_approach_ca n_work_the_effectiveness_of_alternatives_to_detention_for_asylum_seekers.pdf.
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2018 and 100% of requests made thus far in 2019 (internal citations omitted).” Mons, 2019 WL 4225322, at *2.
Pursuant to the Sept. 5 Order, Defendants have submitted monthly reports detailing the number of parole requests received, and whether the requests were granted or denied. Defendants have thus far submitted five reports, showing that the monthly parole-grant rates are as follows: November 2019 Report: 0.66 percent grant rate for redetermination requests and 1.3 percent grant rate for initial applications; December 2019 Report: 1.16 percent grant rate for redetermination requests and 1.7 percent grant rate for initial applications; January 2020 Report: 1.8 percent grant rate for redetermination requests and 2.59 percent grant rate for initial applications; February 2020 Report: 21 percent grant rate for redetermination requests and 47.6 percent grant rate for initial applications; and March 2020 Report: 27 percent grant rate for redetermination requests and 11 percent grant rate for initial applications.
While the Reports show a modest increase in parole grants, the parole-grant numbers are nowhere near the historical numbers for NOLA ICE region, e.g. the 75 percent parole grant rate reported in 2016, the year before this region saw a precipitous drop to a parole grant rate of 1.8 percent. In addition, Plaintiffs have reason to believe that Defendants continue to circumvent this Court’s Order by failing to conduct individualized assessments of parole submissions and resubmissions, as required by the Directive. Moreover, Defendants’ reports, (particularly the February 2020 report reflecting only twenty-one initial parole applications), may not accurately reflect the total number of parole requests received by deportation officers across the region’s detention facilities.
Unfortunately, class members with serious medical conditions continue to languish in detention facilities in the NOLA ICE region, and with the specter of a COVID-19 outbreak, now
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find themselves in conditions that pose an equal or graver threat to their lives, than the ones that forced them to flee their homelands and seek asylum in the United States.
For example, class member O.M.H. was denied parole despite having HIV and Hepatitis C and remains in detention. Decl. ¶1,5. Class member K.S.R. tested positive for H1N1 but was nonetheless denied parole and remains in custody despite a weakened immune system. Decl. ¶9. Class member L.P.C. knows individuals currently in detention without parole who suffer from medical conditions, such as asthma, diabetes, cancer, and lupus, that could result in death, should a COVID-19 outbreak take place. Decl. ¶22. Class member Y.P.T. remains in detention, after NOLA ICE officials denied all four of his parole requests, despite satisfying all parole requirements, providing all necessary evidence, and being confined to a wheelchair. Decl., ¶ 1926, 28. Class member B.A.E., reports coughing “clots of blood,” having “blood in [his] feces, and suffering from continuous fever, but only receives Ibuprofen and remains detained in a crowded bunk. Decl., ¶ 10. Class member R.P.H., who was denied parole despite having been a cancer survivor, was explicitly told she would not receive parole unless her cancer returned. Decl., ¶ 4-5, 15. And class member S.U.R.’s nephew remains detained despite having only one functioning kidney. Decl., ¶ 12.
All Plaintiff-witnesses have applied for release on parole at least once. Most suffer from serious medical problems and are considered part of high-risk populations that are being decimated by COVID-19. There is no public benefit in keeping these asylum-seekers in detention, at the risk of irreparable injury. The experts agree that keeping these vulnerable class members detained during the COVID-19 pandemic will result in risk of irreparable physical injury, and even death.
As the anecdotal evidence from class members shows, NOLA ICE officials continue to defy the Directive, even weeks after the dangers of COVID-19 became a reality. Class members
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languish in crowded detention centers, and those who are sick suffer without access to adequate health care. Experts warn that class members face a certainty of irreparable harm and death once these detention centers experience COVID-19 outbreaks, as they are congregate environments that are simply ill equipped to prevent and successfully navigate an outbreak of such unprecedented, deadly proportions. Franco-Paredes Exp. Decl. ¶¶ 12, 13.
C. Legal Requisites for Establishing a Preliminary Injunction In deciding whether to issue a preliminary injunction, a court must consider “whether (1)
the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest.” Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Plaintiffs meet these requirements.
Plaintiffs bear the burden of showing that they meet all factors: “[t]he movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). “The last two factors ‘merge when the Government is the opposing party.’” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). This Court appeared to merge the last two factors in its analysis granting Plaintiffs’ preliminary injunction motion: “these last two prongs pose no serious obstacle to Plaintiffs' request for a preliminary injunction.” Mons 2019 WL 4225322, at *11.
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III. ARGUMENT A. Likelihood of success on merits In order to obtain injunctive relief, plaintiffs must demonstrate that they are likely to prevail on the merits of their claims. The determination as to whether a party has successfully demonstrated such likelihood is informed by the circumstances of the particular case and claims being made. See Hi-Tech Pharmacal Co. v. United States FDA, 587 F. Supp. 2d 1, 8 (D.D.C. 2008). While the four factors of injunctive relief are not considered in isolation from one another, a strong showing of likely success on the merits may warrant issuance of preliminary injunctive relief, even if the plaintiff makes a less compelling showing on the other factors in injunctive-relief analysis. Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001); Hi-Tech Pharmacal Co., 587 F. Supp. 2d at 7. Plaintiffs re-assert the first two claims presented in their original complaint to the Court, but now make these assertions as the basis for injunctive relief requested to enjoin Defendants from acting in a manner specifically harmful to Plaintiffs’ during the COVID-19 pandemic. Plaintiffs will demonstrate that they are likely to succeed on the merits of these claims, which consist of the following:
1) Defendants’ policy and practice of ignoring the Directive is arbitrary, capricious, and contrary to the law in violation of [the APA See Compl., ¶ 133.
2) Defendants’ “failure to provide individualized determinations of flight risk and danger” violate the INA and implementing regulations and the APA See Compl., ¶¶ 133-137.
The INA, codified in Title 8 of the U.S. Code, contains important provisions of U.S. immigration law. For example, the basis for the existing parole system in the U.S. is found in INA
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§212(d)(5)(A), which grants the Secretary of DHS authority to make parole determinations pursuant to its provisions. INA §212(d)(5)(A). Furthermore, through the INA, Congress delegated rulemaking power to the Secretary, as it required that they “shall establish such regulations … as he deems necessary for carrying out his authority under the provisions” of the INA. 8 U.S.C. § 1182(d)(5)(A). The Secretary has delegated parole authority to the three immigration agencies which are components of DHS: USCIS, CBP, and ICE.35
The authority granted by the Secretary to ICE includes the non-law enforcement functions of parole programs, including the authority to make parole determinations for arriving aliens who have passed credible fear interviews, and are awaiting an asylum hearing. Id. In addition to delegating this authority over general parole determination, the Secretary also delegated to ICE the supplemental specific authority to grant parole to arriving aliens due to “urgent humanitarian interest” or “significant public benefit.” 8 C.F.R. § 212.5. Groups whose need for parole constitute urgent humanitarian interest or significant public interest include, but are not limited to, individuals who “have serious medical conditions, where detention would not be appropriate,” and “whose continued detention is not in the public interest.” Directive at ¶ 4.3 (citing 8 C.F.R. § 212.5(b)).
The power of an administrative agency to administer authority granted to it by Congress, such as the INA authority over parole determinations delegated to ICE by the Secretary, “necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974) (explaining that rulemaking power was necessary for an agency to carry out the powers delegated to it by the
35 (Memorandum of Agreement Between USCIS, ICE, and CBP: Coordinating the Concurrent Exercise by USCIS, ICE, and CBP, of the Secretary’s Parole Authority Under INA § 212(d)(s)(A); Homeland Security Act, 6 U.S.C. § 251-98 (transferring authorities exercised exclusively by the former Immigration and Naturalization Service to DHS).
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Secretary of the Interior under an act of Congress). Agencies are empowered by the delegation of authority to promulgate rules and policies that serve as implementing regulations. Id.
1) Plaintiffs’ Claims Arise under the APA. As aforementioned, DHS and ICE (hereinafter “Defendants”) presently both possess parole
authority under the INA, as of the delegation of such authority by the Secretary of DHS to ICE. As ICE must now implement the INA to exercise the parole determination authority it was granted, it is necessary for ICE to develop rules to fill gaps left by Congress in the INA. For example, while the INA grants the authority to release immigrants in custody on parole, it does not dictate the process that should be followed. For that reason, ICE was compelled to produce the Directive to provide guidance to its officials carrying out determinations, and to prevent those determinations from being made arbitrarily or on an ad hoc basis, in violation of the Administrative Procedures Act (“APA”). Morton, 415 U.S. at 232.
The APA, codified under Title Five of the U.S. Code, governs the actions of agencies, as well as the actions of federal executive departments, that delegate rulemaking power to agencies that are components of them. “Agencies,” under the APA, are “each authority of the government of the [U.S.], whether or not it is within or subject to review by another agency,” except for those expressly excluded in the APA’s provisions. 5 U.S.C. § 701. The APA prohibits such acts by agencies from being “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706.
Actions of agencies governed by the APA include the process by which they promulgate rules, after they have been delegated the authority to do so. 5 U.S.C.A. § 553 A “rule” under the APA is defined as “the whole or a part of an agency statement of general or particular
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applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…” 5 U.S.C. § 551.
The Directive satisfies the definition of a rule under the APA. . 5 U.S.C §551(4) et seq. (1946). It is a statement applicable to the particular agency action of making parole determinations that was promulgated by the Defendants – an administrative agency (ICE), and the federal executive department which delegated parole determination power to that agency (DHS). Dep’t of Homeland Sec. Delegation No. 7030.2, “Delegation of Authority to the Assistance Secretary for the Bureau of Immigration and Custom Enforcement” (Nov. 13, 2004); ICE Delegations of Authority to the Directors No. 0001, “Detention and Removal and Investigations to the Field Office Directors, Special Agents in Charge and Certain Other Officers of the Bureau of Immigration and Customs Enforcement,” (Jun. 6, 2003). The Directive was designed to prescribe policy for the implementation of the INA bysetting forth procedures and practice requirements to provide guidance on the future exercise of discretion by agency officials making parole determinations. 5 U.S.C. §551 et seq. (1946). As the Directive in question is a rule pursuant to the meaning under the APA, claims regarding the agency’s actions with respect to the Directive are governed by the APA.
Plaintiffs are likely to succeed on the merits of their claims arising under the APA, as: 1) Plaintiffs validly challenge final agency action, entitling them to judicial review of their claims under the APA; 2) the Directive is a binding agency rule that ICE and DHS are required to adhere to under the Accardi doctrine of the Supreme Court; 3) Plaintiffs are likely to successfully demonstrate the Defendants do not adhere to this binding Directive; and 4) Defendants’ failure and refusal to adhere to the Directive renders their actions arbitrary, capricious, and contrary to law in violation of the APA.
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2) The Directive is binding o nICE and DHS under the Accardi doctrine. The Accardi doctrine established that agencies are required to adhere to their own rules,
including internal agency policies, such as the Directive. U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Morton, 415 U.S. at 200, 235 (requiring an agency to comply with a directive that provides guidance on internal procedures, and holding that the agency’s failure to comply constituted a violation of the APA as “arbitrary” and “capricious”). This remains true, even when procedures set out are potentially more rigorous than required. Id. Adherence by an agency to its rules is particularly significant where the rights of individuals are impacted by agency action and rulemaking. Id. at 235; e.g. Aracely v. Nielsen, 319 F.Supp.3d 110, 149, 157 (D.D.C. 2018) (holding that Defendants must re-evaluate plaintiff’s request for parole in strict compliance with the ICE Directive of 2009, as that Directive impacts individual rights); Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363, 38 (1957); Morton v. Ruiz, 415 U.S. 199, 235 (1974).
Prior to the filing of this motion, this Court already established that the specific Directive in question in Mons and this request is binding written agency policy for the following reasons: a) it impacts individual rights of arriving aliens, b) the boilerplate disclaimer language included in it is not effective, and 3) it imposes constraints on an agency’s previously unfettered discretion over parole grants upon taking effect.
a. The Directive is binding because it impacts rights of arriving aliens. This Court has established that the Directive is binding written agency policy, as it impacts individual rights of arriving aliens, and legal consequences flow from DHS and ICE failure to implement the Directive in making parole determinations. Bennet v. Spear, 520 U.S. 154, 177-78 (1997), Aracely, 319 F.Supp.3d at 150 (2018); Damus, 313 F.Supp.3d at 343. Agency action
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impacts individual rights when rights or obligations of plaintiff’s are determined by those actions, or legal consequences flow from those actions. 5 U.S.C. § 704.
The Directive sets out the definitions, guidance, internal procedures, and standards used to make a determination of parole, as well as the mitigating factors required to deny individuals parole. Directive ¶ 1-9. Freedom of movement is a fundamental personal liberty under the U.S. Constitution. Aptheker v. Sec’y of State, 378 U.S. 500, 505-509 (1964), U.S. Const. amend. V. Thus, the determination of whether Plaintiffs will be granted parole is simultaneously a determination of whether, and to what extent, Plaintiffs will be deprived of a liberty interest prior to their asylum hearings, or if they will instead be able to exercise their right to freedom of movement.
During the COVID-19 virus pandemic, the Directive has even more extensive impact on individual rights of arriving aliens than under circumstances where no public health emergency is present. Until the pandemic is abated, the Directive impacts Plaintiffs’ individual rights to bodily integrity and reasonable safety. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989); see also Youngberg v. Romeo, 457 U.S. 324, 319 (1982). Additionally, while the Directive requires individualized parole determinations for all arriving aliens found to have a credible fear, it separately emphasizes that, for “urgent humanitarian reasons” or “significant public benefit,” such individualized review is made available to individuals who “have serious medical conditions, where continued detention would not be appropriate” and “whose continued detention is not in the public interest.” Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b). Thus, in addition to establishing the right of individualized review of parole eligibility for all arriving aliens with credible fear, the Directive specifically highlights that individuals of vulnerable health also have this right. Since it is established that the Directive is binding, the existence of these rights
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persists despite any attempt by Defendants to disclaim the creation of rights using boilerplate language.
Therefore, as this Court has already established, and Plaintiffs further demonstrate, the Directive impacts individual rights and liberties of Plaintiffs, and is thus binding pursuant to the Accardi doctrine. Aracely v. Nielsen, 319 F.Supp.3d 110, 149, 157 (D.D.C. 2018).
b. The Directive is binding because the boilerplate language it contains is ineffective and does not enable Defendants to evade legal challenges.
Defendants included a disclaimer in the Directive, stating 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.” Directive ¶ 10. In recent prior cases, arriving aliens have argued to this Court that Defendants’ purpose in including this language is to attempt to prevent the Directive from becoming binding, in order to avoid APA claims from being brought against them. See Aracely 319 F.Supp.3d 110; see also Damus, 313 F.Supp.3d at 341–42,.
Nonetheless, this Court has established that an agency cannot use such boilerplate language to evade legal challenges or judicial review under the APA. Aracely, 319 F.Supp.3d at 152; Damus, 313 F.Supp.3d at 337-38; §706(2); 5 U.S.C. § 551. Such language is ineffective and does not enable Defendants to evade legal challenges. Thus, the Directive does, in fact, impact rights of individuals, and remains binding on the DHS and ICE, despite the use of boiler plate disclaimer language.
i. The Directive is binding as it imposes constraints on those agencies’ previously unfettered discretion over parole grants.
In its first paragraph, the Directive contains an explanation that describes its purpose, stating it “provides guidance” on agency officials’ use of their “discretion to consider the parole
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of arriving aliens.” Directive ¶ 1. Though an agency’s discretion over an issue or process may be subject to no, or fewer, limitations prior to the implementation of a relevant rule, once that agency “announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion’.” Lopez v. FAA, 318 F.3d 242, 246–48 (D.D.C. 2003); Damus v. Nielsen, 313 F.Supp.3d at 337–38 (D.D.C. 2018). Since departure from any implemented rule limiting agency discretion results in invalidation of that departing action, rules imposing such constraints on agency discretion are binding upon implementation.
The aforementioned statement explaining the Directive’s purpose effectively announced, in 2009, that the information contained in the Directive would govern the use of discretion in parole determinations by Defendants. While Defendants may not originally have been bound to perform parole determinations pursuant to factors, considerations, and measures such as those set out in the Directive, their discretion to ignore those measure ceased upon the date which the Directive went into effect. Thus, the Directive is binding on Defendants as of January 4, 2009.
3) Defendants persistently refuse to adhere to the binding directive during the COVID-19 pandemic, despite the issuance of a prior order by this Court granting injunctive relief. In September 2019, this Court found Plaintiffs provided sufficient evidence to demonstrate
that Defendants were not following the binding Directive. (Doc. No. 33) . To make that determination, the Court considered statistics demonstrating the abysmal rates of parole grants. Id. These statistics included that in the years immediately following implementation of the Directive, asylum-seekers were granted parole at a rate of ninety percent nationwide, but since 2017 the rates of release on parole dramatically declined, despite confirmation by the DHS and NOLA ICE that
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the Directive was being followed. Id. NOLA ICE was shown to deny parole requests at a rate of 98.5% in 2018 and 100% in 2019, being the lowest release rate in the country. Id.
Additionally, affidavits of arriving aliens supported that numerous individuals who had met all requirements for parole eligibility under the Directive were denied parole, whether they had submitted all required documents or, as occurs many times, had not been given sufficient time to submit documents. Affidavits also evidenced failure to provide parole interviews, failure to provide information regarding rights to and engagement in the parole process, failure to translate or explain the contents of documents or processes to detainees, neglect and inattention to detainees who tried to seek answers, and the regular vocalization of comments assuring that parole would not be granted to detainees in adherence to the Directive.
The Court should again find that Plaintiffs provide sufficient evidence to demonstrate continued failure to follow the binding Directive and provide individualized determinations of flight risk and danger.
a. Parole grant rates continue to be abysmal and a departure from previous application of the Directive, with no rational justification.
Plaintiffs now provide the most recent statistics on the most recent parole grant rates, which still evidence an irrational departure from binding agency policy in the Directive, despite the issuance of the Order providing injunctive relief in September. INS v. Yang, 519 U.S. 26 (1996). Plaintiffs remind the Court that, in 2016, about 75% of parole applications were successful. (Scharf Decl., ¶ 14). In 2018, fewer than 2% of parole applications were granted. Id. At the present time, in March 2020, data reported by Defendants demonstrate that parole rates are as follows: 12% at Atlanta City Detention Center, 30% at Jackson Parish Correctional Center, 32% at Winn, 35% at Richwood, 19% at Basile Detention Center, 34% percent at River, 41% percent at Pine Prairie,
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zero percent at La Salle, zero percent at Catahoula, and zero percent at Allen Parish Correctional Center.
Though rates did appear to begin to grant rise slightly in 2020, statistics demonstrating such increases are missing relevant data. Id. Additionally, the rise that has occurred is still an astounding departure from previous grant rates, with no justification for such decline (as discussed below). Id.
Furthermore, witnesses continue to provide testimony of continued egregious behavior of Defendants in violation of the Directive, despite the injunctive relief and measures ordered by this Court in September 2019. Witness testimony evidences that determinations over parole persistently fail to be individualized.
b. Defendants often deny parole without arriving aliens ever having applied, indicating that they are not conducting individualized determinations as required by the Directive.
Arriving aliens have been denied parole without ever being given information about parole or the opportunity to apply. B.A.E. Decl., ¶ 8 (stating that a denial was given only three days to apply for parole and was denied without ever applying when was not able to meet the deadline); O.M.H. Decl., ¶ 5 (informing that arriving alien was denied parole without having applied for it); S.U.R. Decl., ¶ 7 (explaining that arriving alien was denied parole about three days after passing credible fear interview, without ever having applied for parole); Y.P.T. Decl., ¶ 12 (informing that arriving alien was denied parole before even being given opportunity to apply). At times, it is upon receipt of their denial notice that they learn about parole. Id. Denial has often happened just days after arriving aliens having been found to have credible fear. Id. As the Directive requires individualized determinations of flight risk or danger to be made, Defendants have violated the Directive, since it is impossible to make an individualized determination without having an
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application informing decisionmakers of the particular circumstances of an individual to be considered. Directive at ¶ 4.3, citing 8 C.F.R. § 212.5(b).
c. Defendants explicitly state that applying for parole is futile, and parole grants will not be issued.
Arriving aliens are often discouraged from applying for parole by officers who make comments explicitly assuring them of the futility of submitting a parole application. B.A.E. Decl., ¶ 9 (revealing that arriving aliens were told by ICE officials at River that ICE “does not grant parole to anyone in Louisiana”); T.R.O. Decl., ¶ 12 (was told by ICE Officer Silva that “parole is not granted in Louisiana.”); R.P.H. Decl., ¶ 15 (revealing that declarant has been told by ICE agents, on multiple occasions, that she will not be granted parole unless her cancer returns); T.M.F. Decl., ¶ 9 (revealing that declarant was told by an ICE officer not to place hope in parole). Officers have told arriving aliens that they will not be getting parole. Sometimes, they have stated that denials will be given under all circumstances, and other times, they have stated that grants will only be given to certain persons, such as those who have cancer. R.P.H. Decl., ¶ 15 (revealing that declarant has been told by ICE agents, on multiple occasions, that she will not be granted parole unless her cancer returns). Other times, comments have been made such that parole is not granted to anyone at all in Louisiana. B.A.E. Decl., ¶ 9 (revealing that declarant was told by ICE officials at River that ICE does not grant parole to anyone in Louisiana).
These comments further indicate Defendants’ failure to adhere to the Directive, as the only reasons for which a person should be denied parole under the Directives are if, after an individualized review of their request, they are determined to be a flight risk or a danger to the community. § 212.5(b)(5); Directive Par. 6.2, 8.3; Aracely, 319 F.Supp.3d 110 (Jul. 3, 2018). Otherwise, parole should be granted as continued detention is not in the public interest. Id.
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d. Defendants fail to provide a reasonable amount of time for arriving aliens to submit parole applications.
When Defendants do accept parole applications, they do not provide a reasonable amount of time for arriving aliens to submit required documents. B.A.E. Decl., ¶ 8 (explaining that declarant was given only three days to apply for parole and was not able to meet the deadline). In order to apply for parole, an individual must first determine who will serve as their sponsor. S.U.R. Decl., ¶8-9. Then, they must collect several documents to demonstrate their eligibility for parole, and their sponsor’s ability to serve as such. Id. This involves collecting evidence such as identity documents, often from a country individuals have just fled in fear of persecution, tax documents from sponsors, proof of homeownership, utility bills, and letters of support from the sponsor and any other individuals available to attest to the good character of the applicant. Directive Par. 8.38.4; S.U.R. Decl., ¶8-9. In some instances, parole applicants have been given as little as three days to collect these documents and determine where to submit them, with little, if any, guidance from officers. B.A.E. Decl., ¶8 (revealing declarant was given three days to apply for parole and was not able to meet the deadline).
These acts by Defendants confirm they do not have an interest in providing an individualized determination of eligibility for parole. By failing to allow a reasonable amount of time for individuals to submit all required materials, Defendants effectively deprive arriving aliens of the opportunity to sincerely undergo an individualized determination of their eligibility as required by the Directive.
e. Defendants continue to determine flight risk and danger arbitrarily, despite mounting evidence in favor of granting parole.
Denials continue to be issued despite mounting evidence in favor of applicants’ eligibility and satisfaction of all requirements for parole. B.A.E. Decl., ¶9; R.P.H. Decl., ¶15. These denials
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continue to be categorical, and if any notice of denial is provided, at all such notice does not explain how the applicant falls into the category for which they were denied, usually “flight risk.” This action by Defendants indicates that such determinations are made arbitrarily and without reasoning based on particular facts of applicants’ circumstances and cases. B.A.E. Decl., ¶9 (informing that the parole applicant was denied parole for alleged “flight risk” despite submitting all required evidence to the contrary and received no further explanation); R.P.H. Decl., ¶15 (explaining that applicant is eligible for parole and has applied four times, but was denied repeatedly, three times for “flight risk” despite having extensive family in Florida to sponsor her, and the last for “lack of additional documents.”).
Many denied applicants have sponsors who are U.S. citizens, and who provide all necessary evidence of citizenship, can attest to the arriving alien’s good character, and have a close relationship, willingness, and ability to support them. B.A.E. Decl., ¶9 (explaining that arriving alien was denied as a “flight risk” even though her husband, who was released on parole in another region and is making an asylum claim under the same facts as this arriving alien, has same parole sponsor, who is a U.S. citizen cousin who lives in Tampa, Florida, and has presented evidence in support of the arriving alien’s request for parole numerous times, including copies of their 2018 tax returns, evidence of U.S. citizenship, copies of bills, additional letters of support, documentation of arriving alien’s clean criminal history, and a copy of arriving alien’s birth certificate); R.P.H. Decl., ¶15 (stating that although eligible for parole and having applied four times, arriving alien has been denied repeatedly, the first three times for “flight risk” despite having extensive family in Florida to sponsor her, and the final time for “lack of additional documents.”); K.S.R. Decl., ¶7 (explaining that their sponsor is a U.S. citizen); O.M.H. Decl., ¶11 (explaining that their sponsor is a U.S. citizen); S.U.R. Decl., ¶8 (explaining that their sponsor is a U.S. citizen);
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T.M.F. Decl., ¶23 (explaining that their sponsor is a U.S. citizen); L.P.C. Decl., ¶11 (explaining that their sponsor is a U.S. citizen).
Many others have sponsors who are lawful permanent residents in the U.S., willing to take responsibility for them, but are denied, nonetheless. Y.P.T. Decl., ¶28 (explaining that their sponsor is a lawful permanent resident). While not absolutely dispositive of an arriving alien’s merit of release on parole under an individualized review, the fact that grants of parole have been made in different regions for persons whose asylum cases stem from the same set of facts as those in a denied class member’s case suggests that individualized review has not occurred before denial. K.S.R. Decl., ¶7 (has same sponsor as husband, and same set of facts leading to her request for asylum yet was denied parole though her husband was granted parole in a different region).
After receiving submissions of parole applications, Defendants sometimes fail to conduct parole interviews. S.U.R. Decl., ¶8-10 (explaining declarant was never provided a parole interview or a response on their application despite having their attorney prepare a parole application on their and their U.S. citizen sponsor’s behalves, despite submitting all required documentation). The failure to conduct parole interviews after receiving submissions, while still issuing denials despite having received mounting evidence of eligibility, demonstrates that Defendants decisions to deny are made arbitrarily and irrationally. In the face of mounting evidence of eligibility, it would only be rational for Defendants to seek clarification of any facts that may indicate ineligibility through a parole interview. Thus, failure to conduct such interviews indicate that Defendants are not interested in assessing the particular circumstances of each person’s individual case and are predisposed to deny regardless of any evidence provided by arriving aliens.
Often, arriving aliens commonly receive no notice at all informing them why they were denied, let alone the insufficient notice described above. S.U.R. Decl., ¶8-10 (was never provided
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a response on their application despite having their attorney prepare a parole application on their behalf, having a U.S. citizen sponsor, and having submitted all required documentation).
Officials at the detention centers have sometimes refused to accept applications requesting parole at all. T.R.O. Decl., ¶11-12 (describing that, despite many attempts to request parole, ICE officers refused to accept parole application, and individual was told that she would have to wait until her court date); O.M.H. Decl., ¶9 (explaining that ICE officers stopped visiting detainees and refused to accept parole requests or provide information despite being asked). Such actions are evidently contrary to the individualized determination requirement in the Directive.
f. Defendants disregard the vulnerability of individuals with medical issues and ignore provisions that parole of such persons is justified.
The Directive contains provisions in favor of granting parole to class members who “have serious medical conditions, where continued detention would not be appropriate,” and “whose continued detention is not in the public interest.” Directive at ¶4.4 (citing 8 C.F.R. § 212.5(b)). Defendants disregard those provisions by continuously keeping individuals with underlying health conditions in detention, and even more extensively violate those provisions during the COVID-19 pandemic, due to those individuals’ particular vulnerability. Numerous individuals with underlying health conditions and serious medical concerns remain in detention and have been denied parole, including those with asthma, diabetes, lupus, H1N1, HIV, hepatitis, cancer and others. K.S.R. Decl., ¶9 (tested positive for H1N1, but denied parole nonetheless); L.P.C. Decl., ¶22 (individuals who she has witnessed remain in detention without parole include those who suffer from asthma, diabetes, cancer, and lupus); Y.P.T. Decl., ¶19-26, 28 (denied four times despite satisfying all requirements, providing all necessary evidence, and now being confined in a wheelchair due to the neglect of the government to an injury he sustained). Such continued detention is in direct violation of the aforementioned provisions of the Directive. O.M.H. Decl.,
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¶1,5 (explaining declarant was denied parole without ever having applied, despite being positive for HIV and Hepatitis C).
4) Plaintiffs’ claims validly challenge final agency action, entitling them to judicial review of those claims under the APA. As the claims brought by Plaintiffs’ challenge final agency action, Plaintiffs are entitled to
judicial review of those claims. 5 U.S.C. § 704. The APA grants the authority to bring legal action, including writs of prohibitory or mandatory injunction, in a court of competent jurisdiction, as the Plaintiffs have done in Mons. 5 U.S.C. § 704. Persons suffering legal wrongs because of agency action, or adversely affected or aggrieved by agency action are entitled to judicial review thereof if the actions in question: 1) impact plaintiffs’ rights, and 2) are final agency actions. 5 U.S.C. § 704; See Aracely v. Nielsen, 319 F.Supp.3d 110, 138-139 (D.D.C. 2018); see also Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
In order to be reviewable as a final action, the agency action at issue does not need to be in writing. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.D.C. 2008) (entertaining an APA challenge to the agency's “decision ... to adopt [an unwritten] policy of disclosing confidential information without notice” because such a policy is “surely a consummation of the agency's decision making process” and it impacted the plaintiff's rights); R.I.L–R v. , 80 F.Supp.3d 164, 184 (holding that ICE's deterrence policy is a final agency action subject to APA review, despite the lack of a writing memorializing the policy).
This Court has established that routine and systematic failure to adhere to the statutory directives requiring factors to be considered in making custody determinations by agencies such as ICE constitutes final agency action under the APA, and is thus subject to judicial review by a court. Ramirez v. U.S. Customs & Enf’t, 310 F.Supp.3d 7, 8 (D.D.C. 2018) (holding that ICE’s
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failure to adhere to directive constituted final agency action subject to judicial review under the APA).
As in Ramirez, Plaintiffs challenge the routine and systematic failure of Defendants to adhere to the Directive, which serves to implement parole procedures under the INA. Action being challenged by Plaintiffs also similarly includes Defendants’ failure to follow the Directive’s instructions to provide individualized review when making custody determinations regarding whether to grant parole, as required by the INA. See Compl., ¶133-137. As such actions by agencies like ICE have been established by this Court to constitute final agency action, Plaintiffs validly challenge Defendants’ actions under the APA and are entitled to judicial review of their claims.
5) Defendants’ refusal to adhere to the Directive renders their actions arbitrary and capricious under the INA, requiring their actions to be overturned under the APA. The APA presents grounds that authorize and require a reviewing court to overturn agency
action as being in violation of its provisions. These grounds include agency action being 1) arbitrary and capricious, and 2) contrary to law. 5 USC § 706.
a. Defendants’ actions are arbitrary and capricious under the APA. Agency actions may be arbitrary and capricious under the APA when they do not comply with binding internal policies governing the rights of individuals. 5 U.S.C. § 706(2)(A); see Morton v. Ruiz, 415 U.S. 199, 204-06 (1974); Aracely, 319 F.Supp.3d at 150. The Supreme Court has established that the APA was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to ascertained and established procedures, such as the Directive. This requirement set out by the APA serves to ensure agency rules are not applied in an ad hoc manner, as unpublished ad hoc determinations are inherently arbitrary in nature. Morton, 415 U.S. at 232.
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In INS v. Yang, 519 U.S. 26 (1996), the Supreme Court held that an irrational departure from policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary [or] capricious,” within the meaning of the APA, 5 U.S.C. § 706(2)(A). In contrast to the behavior of defendants in Yang, Defendants in Mons are not merely narrowing or expanding a definition, but instead entirely disregarding a binding directive requiring the provision by the agency of an individualized determination of eligibility. Yang, 519 U.S. at 32 (finding that taking a narrow view of what constitutes a term in a statute where no definition was provided by that statute, while still adhering to the provision containing the term, does not violate the APA).
The issue with Defendants’ actions in Mons is not whether Defendant agencies can elaborate what constitutes a flight risk or danger where there is no definition provided under the INA. Instead, the issue consists of Defendants’ failure to conduct individualized determinations to Plaintiffs as required by the INA, as demonstrated by their failure to provide any reasoning as to why they consistently conclude that each of the individuals, in the vast majority of applicants denied parole by Defendants, present a flight risk or danger.36
This Court explained that it found Defendants offered “absolutely no explanation for the precipitous nosedive in the parole-grant rates issued by an Office that has allegedly preserved the same underlying policy for making those decisions all along.” See Mons, No. 19-1593 JEB, 2019 WL 4225322 at 21. Approximately seven months later, Defendants still have not offered an explanation for continued abysmal parole-grant rates and persistent departure from the Directive.
36 Class members report that ICE officers merely check a box next to select a category, such as “flight risk” or “danger” and provide no further explanation or rational for how they determined that individuals fall under such categories, based on the facts specific to their situation or application for parole. S.U.R. Decl., ¶ 8-10; R.P.H. Decl., ¶ 15; B.A.E. Decl., ¶ 9.
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Nor have Defendants made an avowed alteration of the Directive. As no explanation has been provided, no avowed alteration has occurred, and no lawful or valid explanation is readily apparent, Defendants actions constitute an irrational departure from binding agency policy. Thus, their actions are arbitrary and capricious under the APA.
b. Defendants’ actions are contrary to law, as they violate the INA. As set forth in the INA, parole applications are to be granted on a “case-by-case” basis for “urgent humanitarian reasons or significant public benefit,” provided the aliens present neither a security risk nor a risk of absconding. INA § 212(d)(5)(A). While the act does not provide definitions of “urgent humanitarian reasons” or “significant public interest,” it does provide examples of what would be considered to constitute such terms. Id. These examples are not an exhaustive list. Id. Instead, these are groups of persons highlighted as specifically justifiable. Id. The INA further establishes this list as a floor, not a ceiling, as it states that all other arriving aliens may also be granted parole, so long as they meet initial eligibility conditions, are provided with an individualized review, and are not concluded to be risk of flight or danger as a result of that individual review. 8 C.F.R. 212.5(c)-(d). The practice of providing notice in the form of a “check” indicating a category for denial with no further explanation indicates that individualization on a “case-by-case” of review has not occurred, as required by the INA. 8 C.F.R. § 212.5. Additionally, as discussed earlier in this motion, Defendants persistently engage in other actions that demonstrate failure to provide individualized determinations in violation of the INA, such as denying Parole toarriving aliens who have not applied, explicitly stating that applying for parole is futile as no parole grants will be issued, failing to provide a reasonable amount of time for arriving aliens to submit documents to be evaluated, and failing to conduct parole interviews prior to denial of parole applications.
41

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S.U.R. Decl., ¶7-10; B.A.E. Decl., ¶8-9; T.R.O. Decl., ¶12; R.P.H. Decl., ¶15; O.M.H. Decl., ¶5; Y.P.T. Decl., ¶12. These actions impede the receipt of facts, without which no individualized determination can occur, demonstrating Defendants’ lack of intent to consider the individual facts of arriving aliens’ cases, in violation of the INA. Id; 8 C.F.R. § 212.5.
Furthermore, as the Directive provides binding agency policy on the technical details and implementation of parole, about which Congress provided no guidance, it is the authority for parole procedures, where the INA has not set forth or elaborated on. 5 U.S.C.A. § 553. Thus, since the Directive provides the authority for parole implementation under the INA, Defendants inherently violate the INA when it does not abide by the Directive. Bennet v. Spear, 520 U.S. 154, 177-78 (1997), Aracely, 319 F.Supp.3d at 150 (2018); Damus, 313 F.Supp.3d at 343.
For these reasons, Defendants’ actions are likely to be found arbitrary, capricious, and contrary to law under the APA, and Plaintiffs are likely to succeed on the merits of their claims.
B. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction. In order to establish irreparable harm, the moving party must show that the injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). The injury must also be “both certain and great; it must be actual and not theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id. In its earlier holding, this Court noted that: “[l]ike the plaintiffs in Damus, Plaintiffs here have established that they will suffer irreparable harm without injunctive relief.” As the Court there noted, detention irreparably harms individuals “in myriad ways,” and the injuries at stake
42

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there and here are “beyond remediation.” 313 F. Supp. 3d at 342. Mons 2019 WL 4225322, at *11. The Court recognized that Defendants’ non-compliance with the Directive subjected asylumseekers to prolonged detention and suffering. Id. The COVID-19 pandemic is not theoretical; it is a very real, deadly threat to the physical well-being of Plaintiffs. Should COVID-19 strike NOLA ICE’s detention facilities, most Plaintiffs will suffer irreparable harm beyond remediation. As Professor Scharf concludes:
“[d]espite explicit guidelines and standards mandating proactive efforts to reduce disease in the facilities, [] ICE has failed to respond to obvious warnings, risk factors and direct information to reduced the risks of COVID-19 posed to people detained in their custody. The risks of irreparable harm posed to these individuals, including the more probable than not consequence of long-term illness and death, is in my opinion substantial and avoidable if appropriate release mechanisms are adopted in a rapid timeframe.” Scharf Exp. Decl., Summary Opinion.
1) Plaintiffs Will Become Infected with COVID-19 if They Remain in Detention. Plaintiffs have presented evidence showing that they are suffering or will suffer irreparable
harm absent this Court’s intervention. They have shown that ICE continues to deprive them of “the protections of the ICE Directive. . . . instead, they are subject to a de facto ‘no-parole’ reality, under which detention has become the default option . . . being deprived of the safeguards of the Directive harms putative class members in a myriad ways.” Damus at 342. NOLA ICE’s reluctance to abide by the principles of the Directive and this Court’s Order, demonstrated by the continued paucity of parole grants, has left hundreds of asylum-seeking class members trapped in detention facilities that are simply ill equipped to protect them from the irreparable harm that COVID-19 will wreak upon them.
Without injunctive relief, present and future class members are likely to become infected with COVID-19. Plaintiffs’ experts warn that “[i]mmigration detention centers in the United States are tinderboxes for the transmission of highly transmissible infectious pathogens including the
43

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SARS-CoV-2, which causes the Coronavirus Disease (COVID-19).” Franco-Paredes Exp. Decl. ¶15. “Given the large population density of immigration detention centers, and the ease of transmission of this viral pathogen, the attack rate inside these centers may reach exponential proportions consuming significant medical care and financial resources.” Id. In addition, these detention centers “are often unhygienic environments” exacerbating the propagation of COVID19. Scharf Exp. Decl. ¶18 at (a)(i).
Class members relate harrowing conditions that will make the spread of COVID-19 among these detained asylum-seekers inevitable: Plaintiffs are housed in dorms with as many 100 men, forced to share four toilets, four sinks, and five showers in a shared room. O.M.H. Decl. ¶10. At Adams, some are housed in dorms holding up to 240 men , who are forced to share six toilets, twelve sinks, and one shower room with twelve showerheads in close proximity. S.U.R. Decl. ¶13. At South Louisiana, as many as 72 women are housed in a single dorm with beds less than two feet apart from one another, and forced to share three toilets, three sinks, and six phones, none of which are ever properly sanitized. K.S.R. Decl. ¶15; L.P.C. ¶14,16. These women also report that they are not provided sufficient toilet paper and had no toilet paper for nearly a week in March 2020. Id. At LaSalle some Plaintiffs’ class members are housed in dorms with more than 90 men, who are forced to share have five toilets, eight sinks and one shower room with five showerheads. T.M.F. Decl. ¶14. In these environments, Plaintiffs’ cannot practice proper social distancing or hygiene, the only known methods to stem the rapid spread of COVID-19. Franco-Paredes Exp. Decl. ¶11,12. See also Scharf Exp. Decl. ¶ 24.
The facts are stark and frightening. Given the high population density of these facilities and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, that is shedding the virus enters a facility. Franco-
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Paredes Exp. Decl. ¶20. Plaintiffs describe residing in a petri dish-like environment. Experts agree that given the poor conditions present in the immigration detention facilities in Louisiana and Mississippi, and high population density (exacerbated by Defendants’ refusal to comply with the Directive), the spread of COVID-19 is inevitable.
2) Plaintiffs Will Likely Become Ill and/or Die from Infection if They Remain in Detention. Plaintiffs here have established that they will suffer irreparable harm without injunctive relief. As this Court previously recognized, detention irreparably harms individuals “in myriad ways,” and the injuries suffered by asylum-seeking Plaintiffs from prolonged detention are “beyond remediation.” Mons 2019 WL 4225322, at *11. In requiring Defendants to comply with the Directive, this Court acknowledged the physical and mental harm caused by prolonged detention on Plaintiff’s well-being. Plaintiffs now come before this Court again, to ask for their lives. For as long as NOLA ICE officials continue to defy the regulations and procedures of the Directive, many, if not most, asylum-seekers who remain in detention during a COVID-19 outbreak will suffer irreparable harm from this disease, if not death. The Directive recognizes that “aliens who have serious medical conditions” should be paroled. Directive ¶ 4.3. Many class members suffer from serious medical conditions that render them vulnerable under normal conditions of confinement but will likely result in their death, should they be exposed to COVID-19. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.37 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent. Franco-Paredes Exp. Decl. ¶ 26.
37 Id at ¶ 4.
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There is little doubt that, should any of the detention facilities that house Plaintiffs suffer a COVID-19 outbreak, Plaintiffs will suffer irreparable harm. Given the fast spread of this unprecedented disease, Plaintiffs’ risk of injury is imminent and certain. As such, the injuries caused by the Defendants’ continued non-compliance with the Directive are “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy, 454 F.3d at 297 (internal quotation marks and citation omitted).
3) Current Protocols of ICE to Address COVID-19 Do Not Address, and Instead Worsen and Increase Likelihood of, Infection and/or Death from COVID-19. As this Court recognized, Plaintiffs have already experienced unspeakable trauma in their
home countries and journies to the United States. Plaintiffs’ injuries from a COVID-19 outbreak would sure be “beyond remediation.” Plaintiffs do not seek monetary compensation for their injuries. Rather, they seek injunctive and declaratory relief that requires NOLA ICE to immediately provide individualized parole assessment to all present and future class members, and to comply with all of the Directive’s regulations and procedures, including those that recognize the need to parole persons with serious medical issues, and those whose release would benefit the public interest.
According to experts, risk mitigation is the only known strategy that can protect vulnerable groups from COVID-19, and release of vulnerable detainees from custody is the best mitigation strategy. Franco-Paredes Exp. Decl. ¶¶ 27-28. See also Scharf Exp. Decl. ¶¶ 18, 34. Dr. Peter Scharf has concluded “[t]he reality that this region’s ICE facilities are located in remote or rural areas with limited resources and that medical resources proximate to the relevant ICE detention facilities leads to the conclusion that, were a COVID-19 infection to occur, widespread, long-term morbidity and mortality are more probable than not.” Id. at ¶ 34. Because ICE protocols are insufficient to protect Plaintiffs from the specter of grave illness and death, Plaintiffs urge this
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Court to require Defendants to fully comply with the Directive, and immediately give all present and future Plaintiffs fair, individualized parole reviews.
C. The Balance of Harms and the Public Interest Both Favor Injunctive Relief. In 2018, this Court established that issuance of injunctive relief is in the public interest, when the same Defendants present in Mons failed to comply with the same Directive presently at issue. Aracely v. Nielsen, 319 F.Supp.3d 110 (Jul. 3, 2018) (holding that granting injunctive relief is in the public interest where the government and its agencies have failed to comply with the Directive). While the INA issuing the authority to make parole determinations does not elaborate on the meaning of the term “public interest” within its provisions, ICE has permissibly, under the APA, elaborated on its meaning through the promulgation of a guide for implementation of the INA, in order to “fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974); 8 C.F.R. § 212.5. The Directive mandates that an alien’s “continued detention is not in the public interest.” Directive ¶ 6.2. It states the public interest is met when an arriving alien is paroled who is found to have a credible fear of persecution, 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, and presents no additional factors that weigh against release. § 212.5(b)(5); Directive Par. 6.2, 8.3; Aracely, 319 F.Supp.3d 110 (Jul. 3, 2018). In other words, the Directive establishes that, once these requirements are met, an individual should be released on parole “on the basis that his or her continued detention is not in the public interest.” Id.38
38 This Court has established that, “[t]he public interest is served when administrative agencies comply with their obligations under the APA.” R.I.L–R, 80 F.Supp.3d at 191 (citing N. Mariana
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Defendants consistently disregard the public interest by refusing to apply the binding Directive, pursuant to the APA, as they fail to release individuals who evidently meet the aforementioned requirements, without providing any justification or explanation as to why those individuals fall into categories meriting denial despite their obvious eligibility and satisfaction of all requirements. This action by Defendants results in the “continued detention” the Directive explicitly sets out as not being in the public interest. Directive ¶ 6.2, 8.3; see Aracely, 319 F.Supp.3d 110 (Jul. 3, 2018).
Most notably, among those consistently denied in violation of the Directive, and thus in violation of the public interest, are individuals who have serious medical conditions, where continued detention would not be appropriate.” Directive at ¶ 4.4 (citing 8 C.F.R. § 212.5(b)). While Defendants’ non-compliance violates this particular provision on a regular basis, the extent of Defendants’ violation is even greater during the COVID-19 pandemic, as the heightened vulnerability of those individuals makes their continued detention even more inappropriate at this time.
This court has established that the public interest “surely does not cut in favor of permitting an agency to fail to comply with its own binding policies impacting the rights of individuals.” See Jacksonville Port Auth. v. Adams, 556 F.2d 52, 58–59 (D.C. Cir. 1977) (recognizing that “there is an overriding public interest ... in the general importance of an agency's faithful adherence to its statutory mandate”). Furthermore, Plaintiffs find no harm that could result from this Court requiring Defendants to comport with existing regulations that require an orderly process for granting freedom to asylum-seekers meriting such. Therefore, in order to
Islands v. United States, 686 F.Supp.2d 7, 21 (D.D.C. 2009)); Klayman v. Obama, 957 F.Supp.2d 1, 43 (D.D.C. 2013)); Damus, 313 F.Supp.3d at 341–42, 2018 WL 3232515.
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serve the public interest, and to prevent this non-compliance that is harmful to and violative of individual rights and the public interest during the COVID-19 pandemic, a grant of the injunctive relief requested is necessary.
CONCLUSION For the foregoing reasons, Plaintiffs’ emergency motion for a preliminary injunction should be GRANTED.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org
Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Attorneys for Plaintiffs

49

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CERTIFICATE OF SERVICE I hereby certify that, on March 31, 2020, I electronically filed the attached MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.

Respectfully submitted:
MELISSA CROW (D.C. Bar #453487) Senior Supervising Attorney

Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López
Luz Virginia López SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 South Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (786) 753-1383 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org

Attorneys for Plaintiffs

50

Case 1:19-cv-01593-JEB Document 61-2 Filed 03/31/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Ángel Alejandro HEREDIA MONS, et al., on behalf of )

themselves and others similarly situated,

)

Plaintiffs,

)

)

v.

)

CHAD WOLF, Acting Secretary of the Dep’t of Homeland Security, in his official capacity, et al.,

) ) Civil Action No ) 19-cv-1593 (JEB) )

Defendants.

)

)

)

)

[PROPOSED] ORDER

For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that:
1. Plaintiffs’ Motion for a Preliminary Injunction is GRANTED; 2. Due to the likelihood of irreparable harm to Plaintiffs’ well-being and safety presented by the COVID-19 virus, Defendants are hereby ORDERED to immediately conduct individualized parole assessments for all present and future members of the provisional class, as defined by this Court in Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322 (D.D.C. Sept. 5, 2019). 3. Defendants are hereby ENJOINED from denying parole to any provisional class members absent an individualized determination that such provisional class member presents a flight risk or a danger to the community, as concluded pursuant only tothe parole process and limits on use of discretion provided in Enforcement, Directive No. 11002.1, Parole of Arriving Aliens

Case 1:19-cv-01593-JEB Document 61-2 Filed 03/31/20 Page 2 of 3
Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) (hereinafter “Parole Directive”);
4. The individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class member’s case, and shall not be based on categorical criteria applicable to all provisional class members;
5. Defendants shall provide provisional class members with parole determinations that conform to all substantive and procedural requirements of the Parole Directive.
6. Given the dangers posed by the COVID-19 pandemic, Defendants shall also particularly ensure compliance with the parole standards pertaining to class members who 1) have serious medical conditions, and 2) whose continued detention is not in the public interest, pursuant to the INA and its implementing regulations.
7. Defendants shall commence the individualized parole assessments of all class members as soon as possible, but not more than five days from the issuance of this Order.
8. Defendants shall complete all individualized assessments of parole eligibility for class members not later than fourteen days after issuance of this Order;
9. Defendants shall provide individualized assessments of parole eligibility to future class members, upon first arrival to any of the detention facilities in the NOLA ICE region;
10. Defendants shall inform Plaintiffs’, through written notice, of the reasons for any resulting denial of parole after determination made pursuant to the Parole Directive;
11. From the issuance of this Order, notice provided to any provisional class member informing of reasons for denial shall contain, in writing, explanations with specificity to the particular facts of the provisional class member’s case;

Case 1:19-cv-01593-JEB Document 61-2 Filed 03/31/20 Page 3 of 3

12. Such notice shall additionally include a fact specific explanation of the reasoning by which individualized assessment of provisional class member’s case pursuant to the Parole Directive led to the conclusion that the individual did not merit a grant, despite the dangers presented by COVID-19;
13. No provision of this order shall be construed or implemented in a manner that would cause delay of provisional class members’ grant and release on parole; such implementation or construction will not justify delay.
14. Defendants shall provide a status report to the Court and Plaintiffs that is similar in content to the monthly reports Defendants file with the Court.

IT IS SO ORDERED Date:

_______________________ JAMES E. BOASBERG United States District Judge

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 1 of 6
EXHIBIT
1

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF B.A.E.

I, B.A.E., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My initials are B.A.E. and I am a Cameroonian national detained at the LaSalle Detention Facility (“LaSalle”) in Jena, Louisiana. I speak English fluently.
Synopsis of Past Persecution

2. I am fleeing death and torture in Cameroon as a wanted man due to false accusations of being a member of a separatist group against the current regime.
3. I was the victim of several physical assaults at the hands of Cameroonian force officers of the current regime between 2017 and 2018. I was later imprisoned, tortured, and starved for five months in late 2018, until I was released in or about January 2019.
4. Due to my prolonged incarceration and mistreatment in Cameroon, I was in need of medical attention, but was only able to access traditional healers in nearby villages. Meanwhile, the government once again ordered my immediate arrest on suspicion of being a separatist. Since I fled the country, I have been accused of having escaped prison as a

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 3 of 6
fugitive, when in fact I was released with the consent of the Attorney General after having paid a bond. At this point, I knew that any person accused of being separatist would be tortured or killed in detention or transferred to Yaounde for assassination at the maximumsecurity prison. These instructions were clear from the president and were covered by media internationally. Journey to the United States
5. On or about May 29, 2019, I escaped Cameroon to save my life and flew to Quito, Ecuador. I left my fiancée in Cameroon, who due to all the distress, went into labor early and gave birth to our son prematurely. I was unable to get any help in Ecuador and decided to travel to the United States (US) to request asylum. I travelled through Colombia, and central America until finally arriving to Tapachula, Mexico several weeks later. This included a terrifying trek through the Darien Gap jungle, where I saw corpses of other asylum seekers including minors and feared for my life.
6. In Tapachula, I was transferred to a detention center in Tuxpan by Mexican authorities. After my release on or about October 3, 2019, I made my way to the US-Mexico border.
Frustration of Access to Parole
7. On or about November 1, 2019, I was processed by border authorities at a port of entry in Texas where I formally requested asylum. I was soon transferred to the custody of Immigration and Customs Enforcement (ICE) at the Rio Grande Detention Center in Laredo, Texas. I was then transferred to the Tallahatchie County Correctional Facility (Tallahatchie) in Mississippi.
8. While detained at Tallahatchie, I had my credible fear interview and was shortly given a positive credible fear finding. I was only given three days to apply for parole and was not

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able to meet this deadline. ICE gave me a parole denial letter before I submitted any application for parole. The letter checked off a box indicating that I was denied because ICE determined I was a flight risk. It did not offer any analysis or explanation as to how ICE came to this conclusion. 9. I was then transferred to the River Correctional Facility in Ferriday, Louisiana in or about November 2019. I applied for parole, but quickly realized that ICE does not grant parole in Louisiana. There officers directly told me that they do not grant parole to anyone. Nevertheless, I applied. An attorney helped me put together a strong request packet, including evidence that my US-citizen cousin living in Maryland is willing to serve as my sponsor and support me upon my release, but my application was refused. I was then transferred to LaSalle on or about the January 27, 2020 where I filed another request for parole. My application was promptly denied, once again checking off the “flight risk” box, despite all the evidence I submitted to the contrary. No explanation was provided. Conditions of Confinement
10. During the long transportation from Laredo, Texas to Tallahatchie in Mississippi, we were handcuffed and shackled by our legs and waist. This was painful. When I arrived to Tallahatchie, I was shocked to realize that it is a criminal prison. There are US citizens incarcerated on one side and immigrants on another side.
11. A few weeks ago, I got sick. I asked to be tested for coronavirus, but they told me they can only test for fever. I have a muscle injury in my chest, and I have a wound in my throat and irritation. I see clots of blood when I cough. I see blood in my feces. I was told that it was not the flu. I do not know if it is due to coronavirus and ICE refuses to test me even though I have a constant fever. The doctors told me that everything was fine and did not perform

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 5 of 6
any tests. They gave me syrup and salt and ibuprofen. It hasn’t helped. Despite my symptoms, I was sent back to my crowded dorm. 12. In recent days, ICE came to talk to our dorm after people panicked over coronavirus. I asked them if they will continue to transfer more people to this facility despite the risk it poses to our health and they said, “Of course, we will. We will receive more people and court is still happening.” They did not come with a medical practitioner and they did not provide us education or talk to us about precautions. There is no toilet paper in my dorm currently and there has been a quarantine of one of the other dorms. 13. Recently, in Owl Charlie dorm, there were some asylum seekers who refused food in protest of these conditions and the looming threat of coronavirus. The officers entered the dorm in riot gear and sprayed tear gas at them. As a result, someone fainted and was taken to the hospital. 14. When I saw the medical staff at LaSalle recently, a man told me that he has never seen anyone leave this place. I am deeply worried and afraid because I hear on the news that Louisiana is the place where coronavirus is the fastest growing in the world. I am very disturbed by the fact that ICE refuses to take any precautionary measures to protect us from the spread of the coronavirus. Plans if Released on Parole
15. As soon as I am released, I plan to self-quarantine in my cousin’s home in Maryland. He is a financially secure U.S. citizen and he is more than willing to help seek out medical care and legal representation so that I can continue fighting my asylum case before the nondetained court. He will also ensure that I am able to attend all my future court hearings. I am desperate to leave this place, where I am afraid that I will be left to die.

Case 1:19-cv-01593-JEB Document 61-3 Filed 03/31/20 Page 6 of 6

VERIFICATION

I, B

A

E

am the individual referred to as B.A.E. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

____________________________________________ Victoria Mesa-Estrada, Esq.
On behalf of witness Benedict Agborotoh Eyong

Date: March 28, 2020

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 1 of 9
EXHIBIT
2

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF K.S.R.

I, K.S.R., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I was born in Holguin, Cuba. I am a 27-year-old asylum seeker detained at the South Louisiana Correctional Facility in Basile, Louisiana (“S. Louisiana”). I am a native Spanish speaker and I do not speak English.
Synopsis of Past Persecution

2. In Cuba my husband ran a secret internet computer service. He provided access to United States (US) television programs and news sources against the Cuban dictatorship to local community members. He was found out, arrested and abused by Cuban police. He fled Cuba as soon as he was released and able to leave. Not long after he left, I was forcibly dragged by authorities to jail in Cuba, where I was also mistreated.
3. Other than this politically motivated arrest, I have no criminal history or record. As soon as I was released, I fled the island and sought to reunify with my husband so that we could

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 3 of 9
seek asylum in the US as political dissidents because we feared for our lives and safety. I flew to Uruguay in or about July 2018. My husband and I were reunified. Journey to the United States
4. The journey from Uruguay to Mexico was long and treacherous, including paths through a deadly jungle across several countries. We finally made it to the US - Mexico border in or about July 2019. I was informed by Mexican authorities that we would be assigned numbers by US authorities and forced to wait in Mexico until our numbers were called.
5. After months of waiting and scraping by in Mexico, my husband and I were processed through a port of entry on or about October 1, 2019. US border authorities took us into custody and immediately separated us. I was then transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original governmentissued photo-identity documents from Cuba.
Frustration of Access to Parole
6. On or about October 11, 2019, I was provided a credible fear interview. On or about November 3, 2019, I was transferred to S. Louisiana. On or about December 3, 2019, I received my positive credible fear finding. Meanwhile, on or about November 27, 2019, my husband was granted parole from a facility in a different region. He was released to live in Tampa, FL, where he continues to reside with our sponsor.
7. On or about December 3, 2019, an ICE officer gave me the parole advisal in English and told me that I had until December 7, 2019 to turn in all my evidence in support of a parole application. I immediately requested two additional days to present all evidence as I knew I would not receive all my supporting documents on time. I turned my parole application in on or about December 9, 2019. I was not provided an interview. On or about December

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 4 of 9
17, 209, I was provided a parole denial letter in English with a box checked off indicating I was a flight risk. I was given no other information. I noticed that the denial letter was marked as denied on December 3, 2019, the same day I was given the parole advisal. 8. Since then, I have applied for a redetermination of my parole request approximately three times, each time providing additional evidence. All my efforts have failed. My proposed sponsor is the same person who served as my husband’s sponsor. He is my US citizen cousin who lives in Tampa, FL. I have presented to ICE the following evidence: of my cousin’s 2018 tax returns, evidence of his US citizenship, copies of his bills, additional letters of support from family and friends residing lawfully in the US, documentation of my clean criminal history, and a copy of my birth certificate. However, ICE refuses to release me, continuing to provide denial letters checking off the “flight risk” rationale without further explanation. I have been separated from my husband for about five months. 9. Here, Deportation Officers (DOs) provide us misinformation or conflicting information when they visit the dorms. Sometimes they tell us no one will be granted parole. Sometimes they tell us our requests will be denied if the sponsor is not an immediate relative. Other times they tell us the requests will be denied if the proposed sponsor does not make more than seventy-thousand dollars ($70,000) annually. Conditions of Confinement
10. The conditions in this facility are terrible. Water constantly drips from the walls in my dorm and my bed sheets always wet. The food we are provided is often frozen and always undercooked. It is also lacking in nutrition and frequently gives us all diarrhea. We are mistreated by GEO officers, humiliated and yelled at like we are violent prisoners.

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 5 of 9
11. On or about March 3, 2020 I grew very ill. I had a high fever, vomiting, and coughing. I was taken to the medical unit and tested for influenza. I tested positive for H1N1. I was placed in isolation, in a small room within the medical unit. I was then left in that room for approximately eight hours without any medicine to reduce my high fever, from about 1PM to about 9PM, at which time they gave me Tylenol.
12. The staff did not tell me how long I would be kept in isolation. The six days I spent in that room were some of the worst of my life. I struggled with suicidal ideation. The door to the room was largely a clear glass window. The shower in the room directly faced the window and there was no curtain. Staff and officers saw me naked when I attempted to bathe. I was not provided any soap or shampoo to clean myself. I was not provided clean clothes.
13. I was suffering cold sweats from the fever. I was very cold all the time, especially at night. I begged for another sheet to cover myself. They refused to bring me one. I did not receive medical attention in that room. The only medicine I was given was Tylenol to reduce fever and this did not happen regularly or even daily. There were times they forgot to feed me. I would get so hungry that I would wait hours in front of the glass door trying to get someone’s attention and plead with them to notify the officers that I had not been fed.
14. After six days of isolation, I was transferred to a dorm with five other women who had also tested positive for H1N1 influenza. On the thirteenth day, they transferred me to a regular dorm with about fifty-one (51) other women. Here in the dorm we do not have disinfectant, bleach or sanitizer. They barely provide us soap. The only soap we are given is four-ounce (4 oz) bottles of liquid, all-purpose soap. They are supposed to give us two bottles each about every eight (8) days. Often many more days pass before we are provided more. This is all we are given to wash our hands, bodies and hair.

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 6 of 9
15. Our beds are approximately sixty (60) centimeters apart and it is impossible to practice social distancing. We all use the same three (3) tablets and six (6) phones to communicate with our loved ones within the dorm. We are forced to share three (3) toilets and (2) sinks. There are three sinks, but one is broken and the remaining two are clogged, often accumulating still, dirty water. The showers do not have curtains and are in close proximity to one another. The toilet paper we are given is of poor quality and does not last. We went approximately six days this month without any toilet paper. Those who can, supplement toiletries and food by purchasing items at the commissary.
16. We are terrified of a COVID-19 outbreak, especially after seeing how they handled the H1N1 influenza situation. In this dorm we have people who are vulnerable to coronavirus. There are elderly women detained here, some as old as seventy (70). Other women have diabetes, heart problems or are survivors of cancer.
17. Not long ago, a woman in her fifties suffered an attack. The medical staff came to the dorm, but they did not know what to do. The woman was on the floor suffering seizure-like convulsions. We all watched as they just looked at her writhing on the floor. This lasted for about fifteen (15) minutes. At that point she passed out and they took her away in a wheelchair. The very next day she was brought back to the dorm.
18. The officers and staff do not appear to be taking any precautions to keep us safe from coronavirus. They sometimes come to work sick. I have witnessed officers coughing in our eating areas. They do not wear gloves. They do not wear masks. I heard some of them have quit because they see there are no precautions being taken here.
19. We are not being provided any COVID-19 information or education. We beg them for information daily. There are already three dorms under quarantine due to influenza. We

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 7 of 9
noticed, however, that one dorm’s quarantine is being taken much more seriously. Officers do not enter that dorm. They feed the women through a slot. This is the Alpha Bravo dorm, which we suspect had a confirmed case of COVID-19. 20. We know from the limited news we are able to watch and from our loved ones on the outside with whom we communicate, that this virus will spread very quickly under these conditions. Some of the women detained here are doctors in their home countries and they try to educate us as well. We are afraid we will be left to die in this place. It is a heartbreaking irony, after so many of us fled to the US for fear of death in our home countries. Plans if Released on Parole
21. If I am released on parole, I plan to reunite with my husband who lives with my cousin and our designated sponsor in Tampa, FL. I plan to self-quarantine to keep us safe from COVID-19 infection and to keep fighting my asylum case with the help of my family outside of this facility.

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 8 of 9

VERIFICATION

I, K S

R

am the individual referred to as K.S.R. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Karina Serrano Rodriguez

Date: March 23, 2020

Case 1:19-cv-01593-JEB Document 61-4 Filed 03/31/20 Page 9 of 9
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 23, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate.
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 23, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 1 of 10
EXHIBIT
3

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF L.P.C.

I, L.P.C., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a 26-year-old Cuban asylum seeker detained at the South Louisiana Correctional Center (“S. Louisiana”) in Basile, Louisiana. I am a native Spanish speaker. I do not speak any other languages.
Synopsis of Past Persecution

2. In Cuba I studied pharmacology. I completed my degree in or about July 2016. I was instructed that I was obligated to sign up for government service by September of that year. However, I was strongly against the Cuban government’s use of medical workers as pawns for their corrupt agenda. When the time came, I did not want to present myself.
3. I began receiving threats from the supervisor of the relevant sector and from the president of the designated municipality where I was assigned to serve. The police do the government’s bidding. They came to my zone and beat me in front of my family. My

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 3 of 10
mother was particularly affected by witnessing this brutality because she is older and suffers from hypertension. I have scars on my knee from this assault. 4. After beating me, they dragged me by force and detained me for over twenty-four (24) hours with no food and no water. They left me in a cell with another woman who was violent. She beat me and humiliated me in that cell, and they did nothing to stop her. Eventually my mother decided I needed to leave the island in order to stay safe. I fled Cuba at the age of twenty-two (22) on or about December 23, 2016. Journey to the United States
5. In order to leave Cuba, I boarded the soonest flight to Guyana. From there I crossed the border to Brazil, where I worked as the caretaker for a family’s infant. I soon realized I would have no path to asylum or legal status in Brazil. So, I began my journey to the US in order to formally request asylum. From Brazil I crossed through Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, and Guatemala, before finally crossing into Mexico on or about April 10, 2019. This journey was difficult, but I met other asylum seekers that helped me along the way.
6. In Mexico, things grew more dangerous for me. I attempted to board a bus heading to the US border, but I was detained by Mexican authorities. They arrested many of us and detained us in an immigrant jail with terrible conditions. The Mexican officials took all of our belongings, kept our money for themselves, and piled the rest together in a separate cell. Soon, the people detained there grew desperate and a riot ensued.
7. The riot occurred in or about May 2019. The rioters set fire to our pile of belongings. All of my official documents and clothes were destroyed in that fire. I left that detention facility with only the clothing and shoes I had on. Not long after this terrifying experience, I

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 4 of 10
became infected with the dengue virus. I suffered a fever and was bed ridden for several days in Tapachula, Mexico. When I recovered, I made my way to Chiapas and from there to Oaxaca. I was told that I would need to take a special route in order to avoid getting rearrested by corrupt Mexican authorities. 8. I spent over eleven (11) hours on a raft on the ocean headed to Veracruz, Mexico. There were moments that I thought I would die on that raft. Despite taking this perilous route, when we arrived in Veracruz, Mexican authorities detained me once again. I spent forty (40) days in another detention center there. My family hired a Mexican lawyer who secured my release and helped me get on a flight to Chihuahua, Mexico. From Chihuahua, I took a bus to Ojinaga where I presented myself at the US border. 9. I arrived at the port of entry near Presidio, Texas on or about August 5, 2019. There I was told that I would not be processed. I was assigned a number and forced to wait until that number was called. During the following two months I worked several small jobs in order to survive. There are cartels that control that region and I was living in fear. I was finally allowed to request asylum in the US after I was processed by border authorities at the Presidio, Texas port of entry on or about October 15, 2019. Soon after, I was detained under the custody of Immigration and Customs Enforcement (“ICE”). Frustration of Access to Parole
10. After crossing into the US, I was immediately detained at the West Texas Detention Facility in Sierra Blanca, Texas. Shortly after, I received a credible fear interview (CFI). In or around early November 2019, I was transported from Sierra Blanca to S. Louisiana.
11. Upon receiving my positive CFI results, my US citizen cousins and my US citizen aunt quickly sent me documents, including a sponsor affidavit, letters of support, copies of bills,

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 5 of 10
copies of tax returns (evidencing an annual income of over $100,000), proof of their identity, proof of their US citizenship, a copy of my Cuban national photo-identification card, and a copy of my clean criminal record. As soon as the documents arrived, I attempted to submit them to my assigned DO, Officer Silva in support of my parole request. 12. Officer Silva refused to accept my documents and told me I would just have to wait until my court date. He said that parole is simply not granted in Louisiana. Over the last four months, I have made several attempts to request parole. All of my efforts have failed. The denial letters are all the same, checking off a box indicating that ICE has determined me a flight risk, without further explanation. Conditions of Confinement
13. In March 2020, at least two of the dorms in this facility were placed under quarantine, including my dorm. We were expressly told this was due to an outbreak of H1N1 influenza. We are all terrified of a COVID-19 outbreak in this facility.
14. In my dorm there are seventy-two (72) women sharing close quarters and contained air. Our beds are about half a meter apart. We are forced to share three (3) toilets and three (3) sinks. We are not provided hand soap or hand sanitizer. For six (6) days in March, we were not taken to the yard for fresh air. Despite the quarantine, they continue to bring newly detained women to this dorm, putting them at risk for H1N1 and putting all of us at risk for COVID-19.
15. They give each woman here two four-ounce (4 oz) bottles of soap to last us a week or longer. It is like a liquid shampoo and it is all they give us to clean our hands, bodies and hair. It does not contain disinfectant. Many times, they do not have enough to go around.

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 6 of 10
16. On or about March 19, 2020 for example, it was time for them to replenish our toilet paper and four-ounce bottles. However, they told us they did not have any to provide due to coronavirus. The toilet paper they do provide does not last us for the week and it is very poor quality. During the month of March 2020, we went about five (5) days without any toilet paper.
17. Most of us in this dorm have been experiencing flu-like symptoms including diarrhea and sore throat. If we complain or consistently ask for medical attention, we are provided one or two ibuprofen tablets. I suffered from flu-like symptoms including diarrhea, fever, and pain in my veins. They tested me for influenza and I tested negative, so they returned me to the dorm. They did not test me for COVID-19.
18. We have to purchase the limited medicine available in the commissary to help control our symptoms. For example, you can buy approximately 30 pills of ibuprofen for three US dollars ($3.00). Vitamin C and other preventative vitamins or medicine are simply not available.
19. In or about the month of March 2020, we witnessed another scary incident of neglect in this dorm. One woman was running a very high fever. She was sweating and she could not stop shaking. We were all concerned she would have seizures or die. We continuously asked the officers supervising our dorm to take her to medical. They ignored our requests for hours. We continued to beg them to get her help.
20. After five hours of asking the officers to please take her to get medical attention, a few women placed a piece of bread in one of the microwaves in our dorm. They turned the microwave on for several minutes. They were hoping to set off an alarm to force the

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 7 of 10
officers to enter our dorm and help her. The bread started to burn, and the smoke detectors went off as planned. 21. They entered our dorm and took her to the medical unit. One officer told us that the microwave was more valuable than any of us. Since then, she was diagnosed with H1N1 and is in isolation. The only other measure they have taken is that they visit our dorm twice a day to take our temperature. 22. We have been under limited quarantine for about a month, with the same set of gloves and the same limited masks. When we ask for replacement gloves and masks, they tell us they do not have any new ones to provide us. All the workers here are coming back inside after contact from the outside world. They do not wear masks and they do not use gloves. A group of us communicated with a man we believe to be a GEO director. He told us he cannot require staff to wear these items because it is not the law. 23. In this dorm, there are at least ten (10) women who are older than fifty (50) and some who are as old as seventy-one (71). There are also women who suffer from asthma and diabetes, as well as a few survivors of cancer and at least one woman living with lupus. To make matters worse, the food we are provided is of poor quality and has no nutritional value. It often makes us sick. 24. All the measures we are taking to protect ourselves in this dorm are based on news we watch on television or from speaking with our loved ones on the outside. The staff and guards here have not provided us any education on COVID-19 measures or precautions. We are all upset because it is impossible to exercise effective social distancing under these conditions.

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 8 of 10
25. The medical unit here is not staffed with doctors or nurse practitioners. Even when they have taken women into isolation in the medical unit, they are not provided adequate care. For example, a woman in our dorm tested positive for H1N1. They took her to an isolation room in the medical unit. When she was cleared and finally returned, she told us how she was treated.
26. She told us she was unable to bathe or change clothes for three days. She said she tried asking for soap and toothpaste and clean clothes, but no one helped her. She said she was not given any medicine other than ibuprofen. She said she was left unattended for long periods of time. She said she lost all sense of time in that room, vomiting and running a high fever. She said sometimes they forgot to feed her, and she would have to try to get someone’s attention through a glass window to remind them to bring her food.
Plans if Granted Release on Parole
27. If I am released on parole, I plan to live with my aunt and cousins in Florida, all of whom are US citizens. I plan to self-quarantine in their home and to continue fighting my case before the non-detained court. I hope to be released to my family soon. They will help me recover from all I have suffered to secure a free and safe life here in the US.

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 9 of 10

VERIFICATION

I, L P C

, am the individual referred to as L.P.C. in the attached declaration.

I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf

given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic.

I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-

19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this

facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Laura Perez Carranza

Date: March 25, 2020

Case 1:19-cv-01593-JEB Document 61-5 Filed 03/31/20 Page 10 of 10
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 25, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 25, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 1 of 7
EXHIBIT
4

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF O.M.H.

I, O.M.H., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a 32-year-old asylum seeker and political dissident from Venezuela. I am HIVpositive and suffer from Hepatitis C. I am currently detained at the LaSalle Detention Facility in Jena, Louisiana. I was transferred here yesterday from Richwood Correctional Center (“Richwood”) in Monroe, LA where I was detained since July 2019. I am a native Spanish speaker.
Synopsis of Past Persecution

2. In Venezuela I worked for the government. I was threatened by paramilitary officers known as colectivos because I refused to comply with government orders that were against my moral compass and political opinion. They wanted me to report against a small town for establishing their own rations, sharing food and other necessities, outside of the government’s parameters. I refused.

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 3 of 7
3. In or about November 2018, five (5) armed colectivos came to my home and threatened my life in front of my family. They pointed guns at me in front of my mother and told me if I did not follow their orders, they would kill me. The very next day I fled to Colombia.
Journey to the United States
4. Life was difficult in Colombia as I endured a lot of xenophobia and had no path to status. I decided to seek asylum in the United States (“US”). I arrived in Reynosa, Mexico in or about May 2019. I presented myself at the Hidalgo, Texas port of entry and informed US border authorities I was requesting asylum. They took my Venezuelan passport and national photo-identity card and placed me in the custody of Immigration and Customs Enforcement (“ICE”).
Time in ICE Custody
5. I was first detained in the El Valle Detention Facility in Raymondville, Texas. I was held there for about eight (8) days until I was transferred to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Mississippi. I was held in Tallahatchie for about twenty-six (26) days. In Tallahatchie I was provided a credible fear interview and quickly informed of the positive determination. Soon thereafter I was denied release on parole without having applied for it. On or about July 3, 2019 I was transferred to Richwood.
6. My time in ICE custody has been very difficult to endure, particularly given my medical conditions. I was not provided medication to treat my illnesses until about January 2020. I have many visits with psychologists because of insomnia and depression as a result of my heightened anxiety regarding my health under these prolonged conditions of confinement. If anyone gets sick around me, I could die. I am living in fear.

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 4 of 7
7. In Richwood, my dorm held one hundred (100) men at any given time. We were forced to share four (4) toilets, four (4) sinks, and five (5) showers. The food was awful and made me sick. A crucial part of staying healthy while living with HIV is eating plenty of healthy food to keep my immune system as strong as possible. This has been impossible. I have suffered from stomach ailments throughout my ICE incarceration.
8. During the months of November 2019, December 2019 and January 2020, I suffered serious illness. During this time, I had to be taken to the nearest hospital on two occasions. I lost a lot of weight very quickly and had flu-like symptoms, including fever. In Richwood, the medical unit does not have major medical equipment or beds for patients. The only thing that staff in the medical unit do for you is give you pills. They do not properly conduct check-ups, such as tracking my vital signs and taking blood samples. To my knowledge, it is not staffed with any doctors and it is generally not staffed overnight.
9. Despite the threat of coronavirus, the overcrowded dorms and the poor conditions, ICE was transferring more and more men to Richwood. Additionally, ICE officers simply stopped visiting us at all. They would not accept our parole requests and they would not provide us information. At least half of the population at Richwood engaged in protest in the form of hunger strikes due to these issues. In or about December 2019, officers stormed two of the dorms at Richwood in riot gear. They sprayed tear gas and shot rubber bullets at the men as retaliation against their peaceful strikes.
10. My immigration attorney filed an extensive parole request on my behalf on or about March 26, 2020. The next day I was transferred to LaSalle with no explanation. Neither here nor at Richwood are precautions being taken in light of coronavirus. The officers do not provide us any education or information related to COVID-19. Despite the governor of

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 5 of 7
Louisiana declaring a state of emergency, they do not wear masks or gloves. They do not provide disinfectant. Plans if Granted Release on Parole
11. As my attorney included in my parole request, my sponsor is a long-time friend and US citizen residing in Texas. Should I be released from detention, I plan to live in his home and self-quarantine in order to protect my life and health. The parole request packet my attorney submitted was approximately one hundred (100) pages in length, including evidence of my clean criminal record, additional letters of support, evidence of my sponsor’s US citizenship, his tax returns, bills and housing information. She also included evidence that my brother, who is pursuing asylum in the non-detained setting, is paying taxes. I hope that I am released before the situation in Louisiana presents an acute threat to my life, safety and well-being.

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 6 of 7

VERIFICATION

I, O M H

am the individual referred to as O.M.H. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Otto Jesus Matos Hernandez

Date: March 28, 2020

Case 1:19-cv-01593-JEB Document 61-6 Filed 03/31/20 Page 7 of 7
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 28, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate.
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 28, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 1 of 11
EXHIBIT
5

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 2 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF R.P.H.

I, R.P.H., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name initials are R.P.H. and I am a Cuban national detained at the South Louisiana Correctional Center (“South Louisiana”) in Basile, Louisiana. I am fifty (50) years old, and I am a breast cancer survivor.
2. I am a native Spanish speaker. I do not speak any other languages. Relevant Medical History

3. When I was fifteen years old, doctors in Cuba discovered that I had benign nodules in my breasts. They removed the nodules and told me that I would not be able to have children for fifteen years.
4. I gave birth to my daughter in 1999, when I was thirty years old. She was born two months premature, and as a result, she has a mental disability. During my pregnancy, doctors found a malignant tumor in my right breast. They performed a surgery to remove my right breast entirely, as well as a part of my left breast. During that time, I went through six cycles of

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 3 of 11
radiation. After my mastectomy, doctors conducted an operation to try to reconstruct my breasts using skin from my stomach, but the operation did not work well. 5. When I was forty-two years old, the skin from my breasts began to rot and die as a result of more malignant cells. I had another operation in 2012 to completely remove my breasts and clean out the entire area. This time, I underwent sixteen cycles of radiation. I was unable to do anything for seven months, during which time I felt constantly weak and was in and out of the hospital. I lost fifty pounds during this treatment, my hair fell out, and the radiation left permanent physical damage to my body. Synopsis of Past Persecution
6. I am fleeing violence and imprisonment at the hands of the Cuban government. When I graduated from university to become a chemical industrial engineer in Cuba in 1993, the Cuban government began pressuring me to participate in its political party. I have never wanted to participate in a group in which I don’t believe. I would regularly speak about my political opinion and participated in numerous protests. Due to these actions, police began coming regularly to my house, threatening me and searching my home for evidence to prove I was against the government. They ordered me to participate in political events and marches, but I refused.
7. When the Cuban police learned that I was speaking out against the Cuban government at my workplace, I was fired from my job in or about September of 2016. After Fidel Castro died in November 2016, the country went into a period of mourning, but since my family believes that the Castro regime is a dictatorship, we were not sad. On the one-year anniversary of Castro’s death, my family was over at my house, having a get together. We were not mourning. The police chief came to my home and stopped the music we were

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 4 of 11
playing. He insulted me, arrested me in front of my family, and took me to the police station where I was interrogated, intimidated, and threatened for two hours. 8. On or about May 10, 2018, I was denied entrance to my daughter’s school because school officials said I was a “counter-revolutionary.” The police arrived and pushed me around. They detained me, putting me in handcuffs in front of my daughter, who has a mental disability. She was terrified and humiliated. She didn’t understand what was happening. Police again took me to the police station, where they threatened me and verbally abused me for six hours. That same day, they issued me a letter threatening to take me to jail if I said or did anything else viewed as “counter-revolutionary.” 9. I knew from neighbors that had spent time in Cuban jails that people starve to death and die in those places. I knew of people who were “disappeared” by the government, and their families never heard from them again. I knew at this time that I had no choice but to leave the country. Journey to the United States
10. I left Cuba on or about May 24, 2018. I took a plane from Cuba to Guyana, and from there, I crossed the jungles of Guyana and Brazil, to the border with Uruguay by bus and on foot. With my health problems, I was lucky to survive the journey.
11. I arrived in Uruguay on or around May 29, 2018. It was very dangerous in Uruguay, and I knew it was not safe for me to stay there. I was able to find work at a wine factory. For about ten and a half months I stayed working in Uruguay until I was able to save money to come to the United States (U.S.) to request asylum.
12. From Uruguay, I flew to Nicaragua, and from Nicaragua, I made my way north by bus through Honduras, Guatemala, and Mexico. On or around May 28, 2019, I arrived at the

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 5 of 11
U.S.-Mexico border. I was issued a number and forced to wait for two months until it was my turn to present myself at the port of entry in Hidalgo, Texas. On or about July 25, 2019, I was crossed through the port of entry, where I identified myself as a survivor of political persecution in Cuba and asked for asylum. I was detained by border authorities and quickly transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original Cuban photo-identity documents. Frustration of Access to Parole
13. From Hidalgo, I was transferred to a detention center in Texas for about four days. I was then transferred to South Louisiana, which is where I remain detained today. I had my credible fear interview on or about September 4, 2019 and was determined credible soon thereafter.
14. I am eligible for parole and I have applied four times. All my requests have been denied. Each denial letter checks off a box indicating that ICE determined I was a “flight risk” with no further explanation. However, I have extensive family living in Florida, all of whom are U.S. citizens who are prepared to support me and ensure I attend my future court hearings. I provided extensive evidence of this in my applications. I have been told by ICE agents on multiple occasions that I will not be granted parole unless my cancer returns.
Conditions of Confinement
15. Being in detention the last eight months has been a very traumatizing and hopeless experience for me. The stress from being confined in such a small space, forced to endure verbal and psychological abuse by guards, and repeatedly denied access to relief is causing me to deteriorate physically and mentally. Despite my medical history, I arrived at South Louisiana strong and in good health. I feel I have aged dramatically. I have been sick more

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 6 of 11
times than I can keep track of in this facility. I first got sick around the end of August or beginning of September. My throat was very sore, my ear hurt, and I had a fever. I was administered a round of antibiotics. About fifteen days later, in September, I got a bad cold. This cycle of sickness continued. 16. When I get sick here, I have to fill out a request to be sent to the medical unit. However, officers refuse to take me to medical the day I make the request. Sometimes, if I am lucky, I get to go the following day. Other times, I am made to wait days before being seen. At times, I have had to cry and beg to be taken to medical, because we are not taken to medical unless they perceive a sickness to be life-threatening. 17. In or about October 2019, I was experiencing intense back, leg, and arm pain. I also began fainting. I lost consciousness various times. I was experiencing nausea, headaches, dizziness, and loss of vision. One day I passed out in the bathroom and was taken to the hospital. The doctor there told me he was very scared for me. He believed that I might have a tumor in my head. They conducted various tests, which came up negative for cancer. But the doctor revealed at this time that my spinal discs were compromising my nervous system, in particular, my sciatic nerve, which was leading to the pain in my spine, left leg, and right arm. 18. Through January 2020, the pain worsened significantly, and my left ankle has swollen. When the pain is particularly bad, I cannot get out of bed or walk around for several days at a time. Often, I cannot sit because I am in too much pain. The doctor told me that my pain has become chronic and that I really need physical therapy, but I am not provided with any physical therapy here. The doctor also recommended I take vitamins, but South Louisiana does not provide me with the vitamins I need. Taking vitamins was an important

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 7 of 11
part of my daily regimen in Cuba alongside a balanced diet, frequent exercise, and regular check-ups. I was also taking medication that helped me manage the symptoms from the surgeries and radiation. Despite having low immunity, I took good care of my health in Cuba, so I did not get sick very often. It was not until I came to South Louisiana that my health, since being in remission, took a deep dive. 19. Here, the diet is hardly balanced and rarely nutritious. Fresh fruit is rare, and so much of the food we are provided is made from flour and full of margarine. The food is also very spicy. The only water we have access to here is from the faucet, and it tastes like bleach. Due to the poor nutrition, my blood pressure—which was always healthy in Cuba—has gone up. Additionally, due to the poor diet and medications I am on here, I have gained about thirty-five pounds, which I believe has exacerbated my body pain. 20. Sanitation here is also horrendous. ICE and detention center officials are actively putting our lives at risk by denying us even the most basic hygiene and sanitation supplies. While in detention, I have never had access to hand sanitizer, anti-bacterial wipes, gloves, or masks. The only thing we receive about twice a month are small bottles of shampoo and a small roll of toilet paper, which only lasts about nine days. Even after my dorm was placed under quarantine around the end of February or beginning of March (for what we were told was an outbreak of the flu), no additional cleaning or hygiene supplies were provided. I have never seen officers using any sanitation supplies to clean the facility. 21. Additionally, they have laundered the blankets only once during the eight months I have been detained here. Officers at South Louisiana also do not clean the phones. The women detained here try as best as we can to clean them with what we have. The sanitation of the dorms is also left to us, but we do not have access to adequate cleaning products to properly

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 8 of 11
sanitize the dorm. Now that coronavirus is a looming threat, the only thing that has changed is that we have finally been provided with four small hand soaps, which will not last long in our dorm. Before about mid-March, I never had access to hand-soap. 22. Currently the majority of us in my dorm, Echo-Charlie, feel ill. There are women coughing and sneezing all around me. Even in such a state, women continue to be transferred to South Louisiana from other centers. In my dorm, there is only about half a meter between each of us at any given time. Echo-Charlie dorm was in quarantine for fourteen days around early March. Now, the Fox Bravo and Alpha Bravo dorms are under quarantine. 23. Some of the regular practices of the medical staff here have become especially worrisome given the threat of coronavirus. Sometimes the nurses come to the dormitory to check on some of us, and they use the same set of gloves to examine all of us. I have also noticed when I go to the medical unit, the nurses never change their gloves in between tending to different patients. 24. On or around March 21, 2020, five deportation officers came to our dorm. They told us that four of the deportation officers were quitting their jobs because of coronavirus. When asked for more information, one of them said, “We are leaving because they are doing a bad job here.” One of the officers that left was my assigned deportation officer, Jason Brownsfield. Now only two ICE officers remain, tending to the over-400 women detained here at South Louisiana. 25. On the evening of March 27, 2020, GEO Group officers came into our dorm and told us that due to staffing shortages, they would be combining two dorms. They combined my dorm with the dorm of women under H1N1 quarantine. Now there are seventy-two (72) of us in the same dorm, and all the women from the other dorm are sick. There is even less

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space between us now. We asked the officers for disinfectant, but they denied our request. The officers are not disinfecting the dorm and they are not using gloves. I have also witnessed officers working extra shifts because so many staff have quit. 26. Women who joined us from the quarantined dorm have been telling us about how they were treated. Some placed in isolation said they were not provided the opportunity to bathe for three consecutive days, they were sometimes denied water, and they were not provided food consistently. The women also confirmed that their sheets and clothes were not washed during the quarantine, and they were not allowed to wear their undergarments. They also said doctors never came to check on them while under quarantine, and not once did any officers come to clean the dorm during the quarantine. They look so sickly. Plans if Granted Release on Parole
27. It has now been about ten (10) months since I first arrived at the U.S. border, and I am still awaiting my next master hearing, which is not until May 2020. I do not understand why ICE continues to hold me here in unsanitary and life-threatening conditions, when they have full authority to release me to the care of my family sponsors, and when I have demonstrated my commitment to following all legal procedures requested of me. I do not know how much longer I will survive the conditions of my confinement.
28. If I am released, I plan to live with my U.S.-citizen family members in Florida and selfquarantine in their home to protect myself from serious risk of illness and death due to COVID-19. I plan to rely on their financial and emotional support to begin recovering from the physical and mental deterioration I have endured seeking safety in the U.S. I plan to find legal representation and to continue fighting my asylum case before the non-detained court. I hope I live to see that day.

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 10 of 11

VERIFICATION

I, R P H

, am the individual referred to as R.P.H. in the attached declaration. I

declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

____________________________________ Jaclyn Cole
On behalf of witness Rosa Pino Hidalgo

Date: March 26, 2020

Case 1:19-cv-01593-JEB Document 61-7 Filed 03/31/20 Page 11 of 11
CERTIFICATION I, Jaclyn Cole, declare that I am proficient in the English and Spanish languages. On March 26, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 26, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 1 of 8
EXHIBIT
6

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 2 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF S.U.R.

I, S.U.R., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. I am a Nicaraguan asylum seeker detained at the Adams County Correctional Center (“Adams”) in Natchez, Mississippi. I am native Spanish Speaker and I speak no other languages. I turn sixty (60) years old next week. I suffer from hypertension and a systolic heart murmur. I have been detained under the custody of Immigration and Customs Enforcement (“ICE”) for thirteen (13) months.
Synopsis of Past Persecution

2. I am fleeing violent persecution in Nicaragua due to my political opinion against Daniel Ortega, whom I consider to be a fascist communist dictator akin to Fidel Castro. On or about April 23, 2018 I participated in peaceful demonstrations against the Ortega regime in Managua, Nicaragua. That day, I was beaten by Nicaraguan paramilitary officers. They also shot me twice resulting in injuries to my left arm and my genitals.

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 3 of 8
3. Thereafter, I was hospitalized. When I recovered, I went into hiding, moving from place to place. Conditions in the country grew worse as Ortega made every effort to destroy media, journalism and human rights organizations in our country. My nephew suffered similar mistreatment due to his political opinion and participation in peaceful protests. Afraid we would be tracked down and killed, we decided to leave and seek safe safety in the United States (“US”). We left Nicaragua together on or about September 24, 2018.
Journey to the United States
4. We traveled through Honduras and Guatemala until we reached the Mexican border. It was difficult to obtain permission to travel through Mexico. After crossing over, armed criminal factions kidnapped us and held us for ransom. However, our families had no money to pay these men. I was sure we would be killed. They finally dumped us naked and deprived of our belongings, leaving us for dead in the mountains.
5. Eventually we made our way to the US - Mexico border at El Chaparral in Tijuana. We had no money and had to work various small jobs to survive. We sought help from volunteers at an organization called Al Otro Lado. We were told that we would have to wait in line to seek asylum in the US. We were assigned numbers to wait on or about January 23, 2019. We crossed into the US at the San Ysidro port of entry on or about February 25, 2019.
Frustration of Access to Parole
6. After being processed at the border, we were kept in temporary holding cells known as hieleras for about eight (8) days. On or about March 3, 2019 we were transferred to the San Luis Regional Detention Center in Arizona. On or about March 11, 2019 we were

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 4 of 8
transferred to the to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Mississippi. 7. While detained in Tallahatchie, I was provided a credible fear interview. About two weeks later, I was given the positive determination results along with documents informing me of my right to apply for parole. However, three or four days later, I was given a letter in English denying me parole without my having applied for it. The English language denial letter checked off a box indicating that ICE had determined I was a “flight risk,” without offering any explanation as to how they made this determination. 8. On or about April 11, 2019 we were transferred to the River Correctional Facility in Ferriday, Louisiana. By this time, I was able to get more help from my primary sponsor, a US citizen woman named Suzi residing in Spokane, Washington with her US citizen husband. My nephew and I met Suzi while she was volunteering in Tijuana with Al Otro Lado. She took a great interest in helping us after learning of our story. 9. With Suzi’s help, I secured an attorney to represent me in my asylum claim and to request release through parole. Suzi provided a sponsor affidavit, a letter from her husband, evidence of their US citizenship, copies of their tax returns showing their significant wealth, documentation of the housing they offered to me and my nephew and copies of my identity documents. In addition, we gathered letters of support from our cousins living in New York and Miami. However, I was never provided a parole interview nor any decision on the request. 10. On or about November 11, 2019, we were transferred to Adams. My sponsor and attorneys had no luck in pursuing my parole request. We focused our efforts on my asylum case. Despite my testimony, medical records evidencing my serious injuries, and corroborating

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 5 of 8
letters, the judge denied my case. With the help of my lawyers, I field an appeal and it is currently pending before the Board of Immigration Appeals. Conditions of Confinement
11. I cannot describe the pain I felt the day the judge denied my case. He said he did not believe me that I was shot, despite the medical records I presented and the visible scar on my arm. While I broke down in tears, he stated that the scar on my left arm appeared, in his opinion, to be from a cigar burn and not a bullet wound.
12. About twenty-four days ago, they transferred my nephew to the LaSalle Detention Center. This has caused me great despair. He was in an accident as a child and as a result only has one functioning kidney. I am terrified that they will deport him, and he will be killed in Nicaragua or that he will contract COVID-19 and die in that jail. I am also scared for my life and well-being in this facility.
13. My dorm alone holds two-hundred and forty (240) men. We all breathe the same contained air. Our beds are less than a meter apart. We are forced to share six (6) toilets, twelve (12) sinks, twelve (12) showerheads, all in close proximity. To make matters worse, the quality of the food here is terrible. Anyone who does not have money to buy more food in commissary is very sick or malnourished. Most of the men here have diarrhea. The bathrooms are always occupied. We have to stand in line to use the toilet.
14. We are each provided one small square of soap about every eight (8) days. The square of soap cannot weigh more than two (2) ounces. In order to stay clean, you have to buy your own soap in the commissary. One bar of soap costs about one dollar and fifty cents ($1.50). Many do not have the money to purchase items and remain dirty. Our clothes are all comingled and washed together.

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 6 of 8
15. We are also provided a very small, travel-size, tube of toothpaste about every eight (8) days. Sometimes the soap and toothpaste are not available for several days longer. It is not sufficient and, people supplement by buying toothpaste from the commissary, if they can afford it. The guards and officers here do not wear gloves or masks. We are not being provided any health information or explained precautionary measures that should be taken in light of the COVID-19 pandemic.
16. There are many men at high risk in my dorm. At least a dozen men in my dorm are over the age of fifty-five (55). There are men with diabetes, asthma and hypertension like me. My friend, a Venezuelan asylum seeker in my dorm, is sixty-three (63) years old and suffers from both diabetes and hypertension.
17. Worse still, rumors are growing that there are already a few cases of COVID-19 and that those men are supposedly in isolation. People are growing desperate to be released to avoid getting very sick or dying in here. The officers here do not care about our safety or health. They yell at us for everything. If we ask questions or plead for help, they yell and reprimand us. If we engage in peaceful protest of any kind, they punish us. I have already endured so much to escape death in my country. I pray I will not meet death in this jail.
Plans if Granted Release on Parole
18. Suzi has promised to continue helping me financially once I am released. I will also rely on my family in the US for emotional and financial support. If I am granted release on parole, I will live in the housing that Suzi offered and continue to fight my appeal. I will self-quarantine in that home to avoid infection from coronavirus and I will seek help to secure my nephew’s release so he may do the same.

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 7 of 8

VERIFICATION

I, S J U

Rojas, am the individual referred to as S.U.R. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

__________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Silvio Urbino Rojas

Date: March 24, 2020

Case 1:19-cv-01593-JEB Document 61-8 Filed 03/31/20 Page 8 of 8
CERTIFICATION I, Michelle P. Gonzalez, declare that I am proficient in the English and Spanish languages. On March 24, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 24, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 1 of 9
EXHIBIT
7

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF T.M.F. I, T.M.F., declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. My initials are T.M.F. and I am a 44-year-old Cameroonian national detained at the LaSalle Detention Facility (“LaSalle”) in Jena, Louisiana.
Synopsis of Past Persecution 2. I am fleeing torture and death in Cameroon as a member of the English-speaking minority and due to my imputed political opinion as a separatist against the current regime. I also speak an indigenous language called Baforchu. In Cameroon I provided for my wife and children working in food provision out of a small warehouse. 3. Beginning in or about late May 2018, I was targeted by the Cameroonian military. They wrongfully suspected me of belonging to an armed separatist group because they were shown photos of me with members. However, these photos were taken while these separatists were extorting me at gunpoint. They wrongfully detained and tortured me on two separate occasions, for several days on end. They set fire to my warehouse and all the

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 3 of 9
goods contained therein. They also cut off half of my youngest son’s finger. He was less than two years old at the time. 4. The acts of torture I suffered at the hands of military officers included stripping me naked, beating me mercilessly all over my body and face until I bled from my nose and mouth, hitting me with the dull side of a machete, using electric jumper cables to shock my penis, raping me with a baton, hitting my left knee with the butt of a long rifle which broke my skin open and exposed my kneecap, carving into my right knee with a knife, forcing the barrel of a gun into my mouth, and subjecting me to a water pressure hose that caused an infection in my eyes, the side effects of which persist to this day. Journey to the United States 5. When I was able to escape my tormentors, I fled to Nigeria in or about June 2019. I was told that I could not stay safely in Nigeria because the Cameroonian military would quickly find me again and surely kill me for daring to escape them a second time. I decided I would travel to seek asylum in the United States (US) where I have family members who could help me recover from all the violence and trauma I endured. 6. On or about June 10, 2019 I flew on Turkish Airways from Abuja, Nigeria, to Quito, Ecuador. En route to Ecuador we stopped briefly in Bogota, Colombia, and Panama for connecting flights. I arrived in Quito on or about June 12, 2019. From there I had a long and difficult journey by bus and by foot through Colombia and Central America until I reached Mexico on or about July 28, 2019. This travel included eight terrifying, lifethreatening days through the Darien Gap jungle. 7. Once I was in Mexico, I traveled to the US border in Nuevo Laredo. There, I was told I could not directly enter the US to seek asylum. I was assigned a number and forced to wait

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 4 of 9
in Mexico until that number was called. After struggling to survive for months in Latin America, where very few people spoke English, I was allowed to enter the US to request asylum. I crossed the bridge port of entry in Laredo, Texas on or about October 28, 2019. I was detained by border authorities and transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original Cameroonian passport and my original national photo-identity document. Frustration of Access to Parole 8. From Laredo, I was transferred to the Rio Grande Detention Center in Texas, where I was held for about two weeks. I was then transferred to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Mississippi. While detained at Tallahatchie, I was provided a credible fear interview on or about November 29, 2019. Soon thereafter, I was provided a positive credibility finding and related paperwork. 9. While detained at Tallahatchie, I was able to seek out limited legal assistance from the Mid-South Immigration Advocates non-profit. With their help, I was able to apply for parole. They worked with my family to collect all necessary evidence in support of my parole request. However, their efforts proved in vein as I have been denied parole several times now. Each denial letter checks off a box indicating that ICE determined me to be a flight risk as the only rationale for the denial. No further explanation is provided. At least two officers told me that parole is not granted in Louisiana. One Deportation Officer told me to not place my hope in parole and focus on my case. 10. My last request for parole included the following supporting evidence: an affidavit from my proposed sponsor, my cousin who lives in Massachusetts; evidence of his US citizenship; copies of his tax returns for the past two years; a letter of support from another

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 5 of 9
US citizen cousin living in Massachusetts; and a letter of support from my niece, who is a Lawful Permanent Resident, also residing in Massachusetts. I also included information about the fact that I am on medication for depression and that I have serious chronic injuries from the brutal attacks I suffered in Cameroon, including to my eyes, back, wrist and knees. 11. On or about December 10, 2019, I was transferred to the River Correctional Facility (“River”) in Ferriday, Louisiana. On or about January 6, 2020, I was transferred to LaSalle. Here, no one gave us any helpful information about parole, which fueled my anxiety and despair. For weeks, I pleaded with the officers to tell me the name and contact information for my designated deportation officer (“DO”). They finally told me my assigned officer is DO Feiek. When I asked for his contact information, they provided me the address for the River facility in Ferriday, Louisiana. My family and I have had no luck in communicating with him. 12. I had my final hearing before the Immigration Judge (“IJ”) on March 10, 2020. The IJs in this region are inhumane and not impartial from all I have witnessed over the past five months. However, because of the strength of my case, the severity of my past persecution and my ability to present my facts fluently in English, I was thankfully granted Withholding of Removal due to my fear of return to Cameroon on that day. 13. Despite winning my case, ICE is refusing to release me. They told me that I will have to wait thirty (30) days before they will even consider freeing me from this place. I am terrified they will use COVID-19 as an excuse to keep me here indefinitely. This is frustrating and makes no sense, because most of us have family and sponsor homes where we can live to properly self-quarantine or practice social distancing in order to prevent the spread of this terrible virus.

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 6 of 9
Conditions of Confinement 14. More than ninety (90) men are in my dorm alone. ICE continues to bring in more men into this facility everyday despite the COVID-19 pandemic. In my dorm we only have five (5) toilets that we must all share. We have one large showering room with only five (5) showerheads for us all to use for bathing. There are no curtains separating the space between showerheads within the shared room. Additionally, the shower room has only two (2) soap dispensers that release foam. 15. We share eight (8) sinks. Next to the sinks are two (2) more soap foam dispensers. All four soap dispensers frequently run out of soap. We are not provided additional soap or shampoo. We are often left with nothing to clean our hands, hair and bodies. We have to buy our own soap from the commissary if we wish to clean ourselves properly. One bar of soap costs about three US dollars ($3). I had to buy my toothpaste at the commissary because the quality of the toothpaste they provide us is very poor. We are given toilet paper, but it is also very poor quality. 16. The other day, one man in my dorm put his mouth directly on the jug of water from which we all pour our drinking water. We grew very upset and immediately notified the guards, asking for help. They told us to shut up and stay quiet in our dorm. We explained what happened and our reasonable fear of contamination, but they refused to replace the jug of water. 17. Additionally, there is no substantive medical care here. We do not have doctors attending to our medical issues and they rarely provide us medicine. If you complain of any illness, you are lucky if they give you ibuprofen. Throughout my time at this facility, I have endured severe pain from my chronic injuries, but they refused to take me to a real hospital.

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The most they would do is provide me a small amount of ibuprofen, which did nothing to ease my pain. 18. One man in my dorm has a painful hernia in his genital region. We cannot sleep because every night he is crying and shouting out in pain. All they do is give him ibuprofen. We have several men in this dorm with high blood pressure and mental health problems. Two men suffer from diabetes and are injected twice daily with needles. There are several men well over fifty years old in my dorm, as well. 19. The men at this facility are growing more desperate as we learn news of the COVID-19 pandemic and its serious risk to all of our lives and well-being. We learn this through our limited access to news sources or from our loved ones on the outside. The officials here do not orient us, provide education or even talk to us about COVID-19. We beg them for information. They are not taking any preventative precautions. Sometimes when we return from the yard, they tell us to wash our hands, but that is it. 20. Many officers are not coming to their post because of this fear. Several wear gloves, but none wear masks. No hand sanitizer or other form of disinfectant is available in the facility. Some officers are rumored to have quit. Now, only one officer is supervising two of our large dorms. She sits outside of our dorms to surveil the two dorms. This is a very dangerous situation, and I am worried what will happen as the men here continue to grow more desperate and fearful for their lives. 21. Recently, I learned that some of the asylum seekers planned a hunger strike to take place throughout the facility. They asked us all to stop eating. They asked people who work in units like the kitchen and laundry to stop working. They are asking people who are taken

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 8 of 9
to the yard for recreation to refuse to return to the jail. They want ICE to take their requests for release seriously because we are all scared and eligible for release. 22. Today the formal strike began after it was rumored that there were two confirmed COVID19 cases in one of the dorms at this facility. In retaliation of the protest, officers in riot gear came to intervene. They entered our dorm and sprayed tear gas. I fell and was unable to exert control over my body and limbs. 23. A female officer came to help me up. She had to press on my back before I was able to regain some control. At this point I was taken for a medical check-up. When I returned to my dorm, I realized that some of my items were missing, including a book where I keep important phone numbers and addresses. I only have one family member’s phone number memorized, so I was very upset. 24. In my dorm, several of the African asylum seekers are planning to write a letter about our situation, these dangerous conditions, and our increasing panic related to COVID-19. They are planning to put everyone’s name and A number to sign the letter. After all we have suffered and endured to seek safe haven in the US, we cannot believe we may be left to die here in these detention centers. Plans if Released 25. If I am released, I plan to self-quarantine in my cousin’s home to protect myself from COVID-19. I also plan to rely on the financial and emotional support of my family living in Massachusetts to physical and psychological therapy. I hope I am released to my family soon, so I can begin to heal from the extensive trauma I have suffered.

Case 1:19-cv-01593-JEB Document 61-9 Filed 03/31/20 Page 9 of 9

VERIFICATION

I, T

M

F am the individual referred to as T.M.F. in the attached

declaration. I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf

given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic.

I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID-

19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this

facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Michelle P. Gonzalez, Esq.
On behalf of witness Thaddeus Mokom Fon

Date: March 23, 2020

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 1 of 11
EXHIBIT
8

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 2 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF Y.P.T.

I, Y.P.T., declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My initials are Y.P.T., and I am a 30-year-old Cuban national detained at the Catahoula Correctional Center (“Catahoula”) in Harrisonburg, Louisiana. I am a native Spanish speaker. I do not speak English.
Synopsis of Past Persecution

2. I was forced to flee Cuba due to political persecution at the hands of the Cuban government. On or about May 1, 2018, the police arrived at my house around 8:00 am. That day was a commemorative holiday with official events that all are expected to participate in. The officers demanded that I leave my house, and they interrogated me about my failure to participate. I responded that I had no interest because I do not believe in politics. In front of my mother, my wife, and my five-year-old daughter, the police began to beat me until my face was bloodied. They handcuffed me and then took me to the police station.

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 3 of 11
3. I was put in a cell, where they continued to brutalize me with a police baton. They hit my body, my stomach, my arms, my feet, and my face. They called me a counter-revolutionary and threatened to disappear me. I was half-conscious when they threw me to the ground, and one police officer proceeded to sexually assault me. They left me on the floor for an hour, traumatized and half-conscious. They kept me detained without medical attention for twenty-five days, until the bruises and cuts had nearly disappeared.
4. Shortly thereafter, my family accompanied me to the police station, and we formally accused the police of mistreatment. However, the corruption in Cuba is pervasive, and because I had no visible cuts or bruises anymore, they said it was just my word against theirs. They refused to look into the incident.
5. After receiving multiple official citations and continued threats of imprisonment and disappearance, I was detained again on or about July 26, 2018, again for failure to participate in political events. Upon my release, three days later, I decided to flee and seek asylum in the United States (U.S.).
Journey to the United States
6. On or about October 16, 2018, I took a flight from Cuba to Guyana. The journey from Guyana to the U.S. was extremely difficult. I traveled by bus and on foot. I experienced physical and sexual abuse on my journey. I passed through nine countries in my search for safety.
7. I first traveled from Guyana to Brazil, and then to Uruguay, where I requested asylum. I was denied asylum, and so I made my way back through Brazil, then to Peru, Colombia, and Panama. I was robbed various times in Peru and Colombia. While traveling through the jungles of Colombia and Panama, I saw the bodies of immigrants that had died on the

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 4 of 11
perilous journey. From Panama, I continued on to Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico. 8. On or around May 10, 2019, I arrived to Ciudad Acuña, Coahuila in Mexico at the border with the U. S. I was assigned a number and forced to wait in a makeshift encampment for over three months until it was my turn to present myself at the port of entry. It was very unsanitary and dangerous in the encampment, and I depended on the donations of churches to survive. On or about August, 22, 2019, I was finally processed at the Del Rio, Texas port of entry, where I asked for asylum. I was immediately detained by border officials and transferred to the custody of Immigration and Customs Enforcement (“ICE”). ICE has in its possession my original photo-identity documents from Cuba. Frustration of Access to Parole
9. After being detained, I was taken to a very cold cell known as a hielera. I was then transferred to a detention center in Texas. About six days later, I was transferred to the Tallahatchie County Correctional Facility (“Tallahatchie”) in Tutwiler, Mississippi. About a week after arriving to Tallahatchie, I was provided a credible fear interview (“CFI”). About a week after the interview, I was provided a positive determination of my CFI and related paperwork. Soon thereafter, I was provided an English language parole denial letter, before being given the opportunity to submit documents in support of a parole request. The stated reason for the denial was that ICE considered me a flight risk.
10. Since then, I have applied for parole three times at three different ICE detention centers, and all of my requests have been denied. Every denial letter checks off the same “flight risk” box as the stated reason for my denial, without offering any rationale or additional information about how ICE made this determination. My requests included extensive

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 5 of 11
evidence from my sponsor, letters of support from community members residing lawfully in the US, and evidence my good moral character. My cousin, who I have been close with my whole life, eagerly agreed to serve as my sponsor and to support me financially once released from detention. Alongside my cousin, I also have lawful permanent resident friends who have agreed to support me as I try to heal and fight my immigration case. Conditions of Confinement
11. While detained at Tallahatchie, I began experiencing a lot of anxiety and depression as a result of my confinement, poor conditions, and flashbacks to the abuse I experienced in Cuba. At Tallahatchie, I was never provided any medication for my depression or anxiety. I also regularly experienced nausea and claustrophobia, due to poor nutrition and close confinement with other detained immigrants.
12. In or about September 2019, I was transferred to Bossier Medium Security Facility (“Bossier”) in Plain Dealing, Louisiana. Bossier was a living hell. There, I experienced psychological and physical mistreatment. At Bossier, they would keep us indoors without access to the yard for months at a time, and we were not provided adequate nutrition. I was able to speak with a psychologist at Bossier, and they provided me with sleeping medication. However, the medication didn’t help due to the constant abuse by guards like the slamming of doors all night long and waking us up daily at 4:00 am.
13. When we requested medical treatment, we were told to drink water. When we got sick, often ibuprofen was the only medication provided to us. Those who were able to afford it would purchase ibuprofen at the commissary when refused medication. Officials withheld information about our cases, they yelled at us, and they put us in solitary confinement without just cause. Before I arrived at Bossier, some of my bunkmates had been sprayed

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 6 of 11
with tear gas and put in solitary confinement for requesting information about parole and refusing to eat their food. I met immigrants in Bossier who arrived healthy and left Bossier with serious mental health problems. 14. When I first arrived at Bossier, I was provided a small tube of toothpaste and soap that lasted me all of three days. After that, no more soap or toothpaste was provided. Those of us who have family in the U.S. to deposit money into our commissary accounts were able to purchase soap for about two U.S. dollars ($2) at commissary and toothpaste for approximately three U.S. dollars and eighty-five cents ($3.85). For those without money in their commissary account, they had no access to such necessities. 15. At mealtimes, the state and local inmates with whom we were incarcerated at Bossier served us meals, and they never used gloves to serve the food. The temperature at Bossier was also kept very low. At night especially, it was very cold, and sometimes the officers took away our blankets arbitrarily. Once, I was put in solitary confinement at Bossier because I complained that the food was too spicy and that the temperature was too cold in my dorm. In total, I was placed in solitary confinement four times without just cause while detained at Bossier. 16. I never had access to hand sanitizer at Bossier, even when people in the dorm were sick. In the bathrooms, there were no shower curtains. Officers and other detained men could watch me bathe. Weekly, we were each provided with a small roll of toilet paper, which would often not last the week. 17. In or about January 2020, I was transferred to River Correctional Center (“River”), in Ferriday, Louisiana. While detained at River, I had my final asylum hearing on or about January 10, 2020. I cannot afford legal representation, so I presented my case alone. I was

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 7 of 11
denied asylum. I decided to appeal the decision because the decision was not just, and I cannot return to Cuba. The appeal is currently pending. At River, conditions were unsanitary much like at Bossier. Detainees were responsible for cleaning the bathrooms, but we were never provided with adequate cleaning supplies or gloves. 18. In or about February 2020, I was transferred to Catahoula Correctional Center (“Catahoula”) in Harrisonburg, Louisiana. Shortly after arriving at Catahoula, while I was walking back to the dorm from the yard, I fell because the ground was wet from the rain. I fractured my right foot. My foot was very inflamed and in a lot of pain. I requested various times to be taken to the hospital. I was not taken to the hospital until about a week later. 19. When I was transported to the hospital, officers placed metal cuffs on my swollen foot and ankle. Since the hospitalization, I continue to suffer from severe pain. I request pain medication, but I am only provided ibuprofen. I am provided five to six pills of ibuprofen that are supposed to last me two to three days. This is not a sufficient amount to help ease the pain. I have been confined to a wheelchair for over a month. It is very hard for me to bathe, and I have to depend on the kindness of fellow detained men to take me to the dining hall to eat. 20. In recent weeks, my fear for my life has increased with the threat of coronavirus. Especially with my injury, I feel so weak and I worry I will be vulnerable once the virus enters the detention center. Already, someone in Catahoula Parish, where I am detained, has been confirmed to have died from the virus. 21. On the morning of March 24, 2020, officers told me they were taking me to the hospital for a routine check-up on my foot. They did not provide me with a mask, gloves, or any hand sanitizing wipes. I begged them not to take me out of the center without hygienic

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 8 of 11
protection because I am very afraid of being exposed to coronavirus. But they ignored my pleas. 22. During the ride to the hospital, the two officials transporting me were smoking cigarettes. Neither wore gloves or masks. One of the officers was coughing. They were both talking about the coronavirus on the drive. When I arrived at the hospital, I had to wait in a waiting room with ten to twelve patients, many of them coughing. I had a brief visit with the doctor and then was returned to Catahoula in the early afternoon. I am very scared thinking about all the people I was exposed to without any mask or other hygienic protection throughout the day, including officers, doctors, nurses, and sick patients. Such negligence worries me as it poses a great risk to my own health and the health of all of us at Catahoula, including staff. 23. Despite the threat coronavirus poses, ICE continues to transfer people in and out of Catahoula, and right now the dorms are completely full. In my dorm there are over one hundred (100) people, and there is less than a meter (3 feet) of space between each of us at any given time. We all breathe the same air. There are many people here who feel sick, who are coughing, and who have fevers. We are not provided the most basic sanitary supplies to keep ourselves safe. No hand sanitizer, masks, or gloves are provided to us. 24. I am in Dorm I. Everyone here fears that coronavirus has already entered the facility. On my way to the dining area, I have to pass Dorm B, which is under quarantine. Dorm B is not far from the solitary confinement cells. In those cells, we can see people are wearing masks. From Dorm B and from solitary, people yell to us that they are infected with coronavirus. The officers do not provide us information to quell our fears. They also do not provide us education related to coronavirus.

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 9 of 11
25. We are afraid to request medical care, because we are threatened with time in solitary confinement when we request to go to the medical unit. This happened to me about a month ago when I had a sore throat and fever. I requested to go to medical unit, and, as a remedy, I was told to gargle saltwater and provided ibuprofen. Afterwards, officers tried to take me to a solitary confinement cell, but I begged them not to because of my deteriorated mental state. I was allowed to return to the dorm.
26. I cannot remain detained here. As a survivor of sexual and physical abuse in a Cuban jail, being incarcerated in these neglectful facilities across the south has been very traumatic for me. Claustrophobia, flashbacks, depression, anxiety, and insomnia are now all regular parts of my daily life. I have to take daily medication to treat these issues. I live in constant fear of being returned to solitary confinement or deported to Cuba. Each passing day I am more terrified of being infected with coronavirus.
Plans if Granted Release on Parole
27. The most painful part of all of this is that I am aware of my eligibility for parole under ICE’s own directive. It causes me mental anguish to know that ICE has full authority to release me to the care of my proposed sponsor, my cousin who is a lawful permanent resident living in Florida.
28. If released, I plan to live with her and her husband in their home near Tampa, Florida. Upon my release, I plan to self-quarantine in their home to protect myself from COVID-19. I also plan to rely on their financial and emotional support. They plan to help me obtain the medical care I need to heal my fractured foot and to retain legal representation to continue fighting my case before the non-detained court. I am desperate to be released to my family and extended community.

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 10 of 11

VERIFICATION

I, Y

P T am the individual referred to as Y.P.T. in the attached declaration.

I declare under penalty of perjury that the foregoing is true and correct.

I have authorized my legal counsel in the Heredia Mons litigation to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. I am also foregoing the option to sign documents sent by mail due to the urgency of the COVID19 situation and due to reasonable fear of destruction of mail or retaliation by officials at this facility. If required to do so, I will provide a signature when I am able.

_________________________________________ Jaclyn Cole
On behalf of witness Yudanys Perez Treto

Date: March 26, 2020

Case 1:19-cv-01593-JEB Document 61-10 Filed 03/31/20 Page 11 of 11
CERTIFICATION I, Jaclyn Cole, declare that I am proficient in the English and Spanish languages. On March 26, 2020, I read the foregoing declaration and orally translated it faithfully and accurately into Spanish over a telephonic call with the declarant. After I completed translating the declaration, the declarant verified that the contents of the foregoing declaration are true and accurate. I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 26, 2020
Signature

Case 1:19-cv-01593-JEB Document 61-11 Filed 03/31/20 Page 1 of 9
EXHIBIT
9

Case 1:19-cv-01593-JEB Document 61-11 Filed 03/31/20 Page 2 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia Mons et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF LAURA G. RIVERA, ESQ.
I, Laura G. Rivera, Esq., make this declaration on my personal knowledge and if called to testify, I could and would do so competently as follows:
1. I serve as the Director of the Southeast Immigrant Freedom Initiative of the Southern Poverty Law Center (“SIFI”). SIFI provides pro bono representation to detained immigrants in proceedings before the Executive Office for Immigration Review (“EOIR”) and U.S. Immigration and Customs and Enforcement (“ICE”). SIFI, established in 2017, has represented hundreds of individuals confined under the jurisdiction of the New Orleans ICE Field Office. Most SIFI cases focus on decarceration.
2. Most of the clients SIFI represents under the jurisdiction of the New Orleans ICE Field Office are confined inside the LaSalle Detention Center (“LaSalle”) in Jena, Louisiana, and Pine Prairie ICE Processing Center (“Pine Prairie”) in Pine Prairie, Louisiana. SIFI has also represented clients at the Adams County Correctional Center in Natchez, Mississippi, the River Correctional Center in Monroe, Louisiana, and the Winn Correctional Center in Winnfield, Louisiana.

1

Case 1:19-cv-01593-JEB Document 61-11 Filed 03/31/20 Page 3 of 9
3. Since the outbreak of the novel coronavirus, SIFI staff have visited individuals inside Pine Prairie and LaSalle and spoken by phone to individuals at both detention centers. What SIFI staff have personally witnessed and learned in conversation with people inside these facilities reveals a grossly deficient response by the New Orleans ICE Field Office and private contractors to stem the spread of the virus. ICE has failed to give people inside LaSalle and Pine Prairie adequate information about how to protect themselves from contracting COVID-19. It has stymied their ability to practice social distancing by continuing to confine individuals in groups of dozens or larger. It has failed to increase their access to soap and fresh air. And when detained individuals express collective fear and concern, the New Orleans ICE Field Office and private contractors have responded with force and punishment.
4. The New Orleans ICE Field Office has the power and the duty to make determinations about whether to release non-citizens on parole on a case-by-case basis. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5. ICE has various other mechanisms to release people from its custody, including release on recognizance, conditional release on bond, and release on an order of supervision. These tools are available to ICE during its initial custody determinations or its redeterminations. Over the past two years, however, ICE has detained and denied release to thousands more people than it ever did before. This drastic turn is due to ICE having manipulated an algorithm in a computer risk assessment tool that it uses to generate recommendations about custody determinations.1 The result was the tool always recommended confinement. And while ICE agents may manually override the recommendation, advocates allege in a recent suit that ICE in New York accepted the recommendations more than 99 percent of the time.2
1 Compl. at 2, Velesaca v. Decker, Case No. 1:20-cv-01803 (S.D.N.Y. Feb. 28, 2020). 2 “[T]he full ramifications of the change to the algorithm are likely even broader: It is used nationally, but the FOIA suit only revealed data from New York.” Hannah Bloch-Wehba, “A
2

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5. Not even the COVID-19 pandemic and the attendant danger it poses inside congregates spaces has dampened the New Orleans ICE Field Office’s ironclad commitment to incarceration over sound alternatives to detention. It continues to deny humanitarian parole even to those in its custody who suffer from serious medical conditions.
6. Amid this crisis, ICE has failed to provide adequate legal access for people in its custody, whether in-person, by video teleconference (“VTC”), or by phone. SIFI’s primary mode of contact with confined individuals is through a free and confidential hotline through which they may reach us. Due to technology and staffing restrictions caused by the coronavirus, the hotline is now staffed Mondays and Thursdays instead of Monday through Thursday. It conducts the rest of its communications through a combination of in-person visitation, VTC, and other legal phone calls.
7. ICE’s COVID-19-related restrictions on in-person visitation have made it virtually impossible to conduct in-person visitation at Pine Prairie, where contact visitation is the only option. In “guidance” published on its website on March 23 and March 24, 2020, ICE offered conflicting messages on the type of personal protective equipment legal workers would have to bring for in-person visitation. On March 23, 2020, two subsections presented different requirements. One subsection stated: “non-contact legal visitation…will continue to be permitted. In order to safeguard visitors, detainees, and ICE and facility staff, official visitors may be subject to special screening and procedures. ICE may impose additional requirements, such as mandating that visitors wear protective equipment.” Another subsection stated that “all legal visitors” must “provide and wear personal protective equipment,” including “disposable vinyl gloves, N-95 or surgical masks, and eye protection[] while visiting any detention facility.”
lawsuit against ICE reveals the danger of government-by-algorithm,” The Washington Post (Mar. 5, 2020), available at: https://www.washingtonpost.com/outlook/2020/03/05/lawsuitagainst-ice-reveals-danger-government-by-algorithm/
3

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8. Up until then, I had provided SIFI staff with gloves, disinfectant wipes, and hand sanitizer, but not masks or eye protection. Not knowing which of the two statements would prevail, and out of an abundance of caution, that same day I mailed by overnight delivery several packages containing surgical masks to five SIFI staff members. The masks were not N-95 masks. Despite trying to procure them locally, I had been unable to, given the national shortage of those masks. Even if I had been able to procure them, SIFI’s use of N-95 masks would have taken those masks out of circulation for use by frontline health care providers, in contravention of the priorities urged by public health experts.
9. The next day, on March 24, 2020, ICE issued updated guidance:
10. In essence, then, ICE maintains that contact visitation is not allowed unless legal workers procure and use N-95 masks. Given that SIFI Pine Prairie legal teams or any other SIFI legal representatives cannot obtain N-95 masks for use due to the critical shortage of N-95 masks across the country, this new N-95 mask standard virtually ensures that no legal visitation will occur at Pine Prairie.
LaSalle Detention Center, Jena, LA 11. On March 20, 2020, the New Orleans ICE Field Office denied release on parole to two SIFI clients with medical complications who are confined inside LaSalle. The clients, asylum seekers, have both engaged in a hunger strike for about 140 days. Their strike is rooted in their
4

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frustration with the way the immigration courts have treated their pleas for asylum, and, as the duration of their confinement lengthens, their desperation at being locked up, separated from family. Before the novel coronavirus was declared a pandemic, SIFI filed initial parole requests. They contained evidence from a leading medical expert in detainee health attesting that they are medically vulnerable, and documents showing they pose no risk to public safety and no flight risk, having sponsors willing to host them upon release. ICE denied their parole requests.
12. After the outbreak, SIFI renewed these requests, citing to the COVID-19 pandemic as a changed circumstance, and adding new supporting evidence. Yet, again, ICE denied release. ICE has since begin to force feed them via nasogastric tubes. Given the available data on the high rates of transmission of the novel coronavirus and the most likely method of transmission through droplets entering the mucosa, force feeding medically fragile individuals inside likely contaminated detention center medical wings may compound their risk of infection.
13. Over the past week, SIFI staff have learned that ICE and facility staff have used force to respond to confined individuals’ clamor for their own health and safety. On March 26, 2020, a woman inside LaSalle called SIFI’s hotline and spoke with a SIFI helpline specialist. The day prior, she said, officials used tear gas against people in a different housing unit who protested after hearing rumors that someone was diagnosed with coronavirus. Due to the fumes, those individuals, the caller, and the nearly 80 others in her housing unit had to be evacuated. ICE since acknowledged the use of force incident, but said pepper spray and not tear gas was deployed.3
14. The March 26 caller also reported woefully deficient conditions. Though guards did tell her and others about the coronavirus, they did not provide materials for her and others to disinfect
3 Noah Lanard, “ICE Detainee Were Pepper-Sprayed During a Briefing on Coronavirus,” Mother Jones (Mar. 26, 2020), available at: https://www.motherjones.com/politics/2020/03/icedetainees-were-pepper-sprayed-during-a-briefing-on-coronavirus/.
5

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or clean their area. All but one toilet is broken, meaning close to 80 people must share one toilet. Staff told them they were out of toilet paper. When soap runs out, she said, it is not replaced until the next day. She also stated that she doubts the staff will tell persons detained if someone at the detention center has been diagnosed with coronavirus because it would be inconvenient for them.
15. The March 26 caller is herself suffering from a serious medical condition. She reported suffering from blood clots in her brain which cause significant pain. Though she requested medical attention about two weeks ago, she still has not been given medication.
16. Another caller from LaSalle reported symptoms consistent with COVID-19. He called on March 19, 2020, and complained of having a fever, chest pain, difficulty breathing while trying to sleep, and of coughing blood. He reported having been tested for the flu and having returned a negative result; however, to his knowledge, he had not been tested for coronavirus. The only treatment he reported receiving inside LaSalle was ibuprofen, syrup, and salt, which had not helped. He reported sharing a unit, HD, with others who had symptoms of coughing, fever, or shortness of breath. None had been removed from the unit. New people were being brought into the unit. Facility staff were not routinely using gloves. He reported that a different housing unit, OD, had been quarantined earlier for two to three weeks. His understanding was that some individuals inside that unit had been infected with the common flu.
Pine Prairie Detention Center, Pine Prairie, LA 17. ICE and its private contractors have also used force in the past week against individuals confined inside Pine Prairie. An SPLC legal worker received a call from a man inside the facility on March 24, 2020 as the incident unfolded. He told her that he could see some eight guards
6

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wearing riot gear, and also the assistant warden. As at LaSalle, ICE confirmed the incident in a published report and explained ICE or its agents used pepper spray against those in its custody.4
18. The escalating dangers to people in ICE custody make it all the more important for SIFI staff to maintain contact with clients and potential clients in confinement. A SIFI legal worker conducted in-person visitation with several individuals at Pine Prairie on March 16 and March 20, 2020. She wore a mask and gloves both times. The first time, she observed that none of the facility staff or detained people wore masks or gloves. That day, she met with five individuals, seated a table about six feet from those she visited. The five individuals she visited independently gave her a consistent message: none had received any information about the coronavirus. They also mentioned lacking access to hand soap. When she asked them whether facility staff had changed any protocols in response to the pandemic, they said their conditions had not changed in any noticeable way. The five individuals had engaged in a hunger strike and had been subjected to solitary confinement. Three of them independently told her that while segregated inside one- or two-person cells, they were not given water to drink for almost a week, and they were forced to drink water from the toilet.
19. Her second visit, on March 20, 2020, was with five individuals confined inside a quarantined unit, Charlie Alpha. That time, some staff wore masks; others did not. As before, she sat at a six-foot table in the visitation area. Because the table is located in a common area, the visits were not private or confidential. The five men from the quarantine unit wore masks but no gloves. As they waited in the common area, they sat alongside other detained people awaiting visitation
4 Ben Fox, Philip Marcelo, and Nomaan Merchant, “Trump administration urged to free migrants as virus surges,” Associated Press (March. 25, 2020), available at: http://www.wboc.com/story/41938213/trump-administration-urged-to-free-migrants-as-virussurges.
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who did not have masks or gloves. They told her that they were only given masks when they left the dorm, not while they were inside of it. They also told her that detained individuals are still cleaning the dorms, and they are given neither masks nor gloves. Guards and ICE agents sometimes wear masks and gloves when they enter Charlie Alpha and sometimes do not. Several of them also reported to her that ICE continues to bring new people into confinement at Pine Prairie, putting those new people into the Charlie Alpha unit, a known high-risk unit.
20. The same legal worker had a VTC call with someone inside Pine Prairie on March 18, 2020. The man was wearing a mask and gloves. He told her that he and roughly sixty others inside his housing unit, Charlie Alpha, were under quarantine. Guards had told those in Charlie Alpha that someone inside that unit was suspected of having COVID-19. The suspected COVID-19 carrier had been removed from the Charlie Alpha unit. Everyone else remained inside Charlie Alpha. He told her that detained people inside Charlie Alpha were responsible for cleaning their own unit. They had access to some chemicals to clean with. However, they had no access to hand soap or hand sanitizer, only the limited soap given to them for showers. The guards had not taken any measures to space people out inside the unit.
21. Since the onset of this pandemic, SIFI and partner organizations have to date submitted three letters to ICE and facility administrators requesting information about their response plans and urged them to release people from custody. As of now, SIFI has received no response.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on March 29, 2020 in Decatur, Georgia.
___________________________________ Laura G. Rivera, Esq.
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EXHIBIT
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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 2 of 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro HEREDIA MONS et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF CARLOS FRANCO-PAREDES, M.D., M.P.H.

I, Carlos Franco-Paredes, M.D., M.P.H., declare under penalty of perjury under the laws

of the United States as follows:

I.

Overview of Background and Specializations.

1. My name is Dr. Carlos Franco-Paredes and I am an Associate Professor of Medicine at

the University of Colorado in the Department of Medicine, Division of Infectious

Diseases. I completed my internal medicine residency and infectious diseases

fellowship at Emory University School of Medicine.

2. In addition, I hold a public health degree in global health from the Rollins School of

Public Health at Emory University with a concentration on the dynamics of infectious

disease epidemics and pandemics. I also have twenty years of relevant clinical

experience. I participated in developing international guidelines for pandemic influenza

preparedness and response as well as a global health action plan with the World Health

Organization.

3. As an infectious diseases clinician, I have experience providing care to individuals in

a civil detention centers in the United States (US) and have performed medical forensic

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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 3 of 35

examinations and medical second opinion evaluations for patients in the custody of the

Department of Homeland Security, Immigration and Customs Enforcement (ICE). I

have also provided direct care for many patients in ICE custody or incarcerated settings

living with HIV-infection at my current academic institution.

4. I present my Curriculum Vitae attached as Exhibit A. I have written and published

extensively on the topics of infectious diseases pandemics and epidemics, particularly

in influenza. I have 196 scientific publications in peer-reviewed scientific journals. I

teach a class at the school of medicine on caring for underserved populations including

immigrants and incarcerated populations.

II.

Overview of Documents Reviewed in Preparation of this Declaration.

5. In preparation for this declaration, I reviewed the following scientific references,

relevant medical documents and public health websites:

a. Johns Hopkins University. Coronavirus Resource Center Available at: https://coronavirus.jhu.edu/map.html. Accessed: March 21, 2020.

b. CDC-Interim Clinical Guidance for Management of Patients with Confirmed

Coronavirus

Disease

(COVID-19)

Available

at:

https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-

management-patients.html). Accessed: March 21, 2020.

c. CDC COVID 19 Response Team. Severe outcomes among patients with

coronavirus disease 2019 (COVID-19) – United States, February 12-March 16,

2020.

Available

at:

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. Accessed: March

21, 2020.

d. Rodriguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, VillamizarPeña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, VillamilGómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R; Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19). Electronic address: https://www.lancovid.org. Clinical, laboratory and imaging features of COVID-19: A systematic review and meta-analysis. Travel Med Infect Dis. 2020 Mar 13:101623. doi: 10.1016/j.tmaid.2020.101623. [Epub ahead of print].

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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 4 of 35

e. Foppian Palacios C, Opensahw JJ, Travassos MA. Influenza in US detention centers- the desperate need for immunization. N Engl J Med 2020; 382(9): 789792.

f. Novel Coronavirus Pneumonia Emergency Response Epidemiology Team. [The Epidemiological Characteristics of an Outbreak of 2019 Novel Coronavirus Diseases (COVID-19) in China]. Zhonghua Liu Xing Bing Xue Za Zhi. 2020;41(2):145–151. DOI:10.3760/cma.j.issn.0254-6450.2020.02.003.

g. Mart M, Ware LB. The long-lasting effects of the acute respiratory distress

syndrome.

Expert

Rev

Respir

Dis

2020;

https://doi.org/10.1080/17476348.2020.1743182.

h. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S, Huang H, Zhang L, Zhou X, Du C, Zhang Y, Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X, Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C, Zheng J, Song Y. JAMA Intern Med. 2020 Mar 13. doi: 10.1001/jamainternmed.2020.0994. [Epub ahead of print].

i. Koh GC, Hoenig H. How should the rehabilitation community prepare for 2019-nCOV? Arch Phys Med Rehabil 2020 Mar 16. Pii: S00039993(20)30153-2. Doi: 10.1016/j.apmr.2020.03.003. (Epub ahead of print].

j. Chen C, Zhou Y, Wen WD. SARS-CoV-2: a potential novel etiology of fulminant myocarditis. Herz 2020; March 5. https://doiorg/10.1007/s00059020-04909-z.

k. Hu H, Ma F, Wei X, Fang Y. Coronavirus fulminant myocarditis saved with glucocorticoid and human immunoglobulin. Eur Heat J 2020; Mar 16. [Epub ahead of print].

l. Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARSCoV2). Science 10.1126/scienceabb3221 (2020).

m. Russell CD, Millar JE, Baillie JK. Clinical evidence does not support corticosteroid treatment for 2019-nCoV lung injury. Lancet Infect Dis 2020; 395: 474-475.

n. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler G, Wu NH, Nitsche A, Müller MA, Drosten C, Pöhlmann S. SARS-CoV-2 Cell Entry Depends on ACE2 and TMPRSS2 and Is Blocked by a Clinically Proven Protease Inhibitor. Cell. 2020 Mar 4. pii: S0092-8674(20)30229-4. doi: 10.1016/j.cell.2020.02.052. [Epub ahead of print]

o. Tian S, Hu W, Niu L, Liu H, Su H, Xiao SY. Pulmonary pathology of early phase 2019 novel coronavirus (COVID-19) pneumonia in patients with lung cancer. J Thorac Oncol 2020; https://doi.org/10.1016;j.tho.2020.02.010.

p. Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J.The incubation period of coronavirus disease 2019 (COVID-19) from publicly reported confirmed cases: estimation and

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Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 5 of 35

application. Ann Intern Med 2020; March 10, doi: https://doi/org/107326/M200504.
q. Korean Society of Infectious Diseases; Korean Society of Pediatric Infectious Diseases; Korean Society of Epidemiology; Korean Society for Antimicrobial Therapy; Korean Society for Healthcare-associated Infection Control and Prevention; Korea Centers for Disease Control and Prevention. Report on the Epidemiological Features of Coronavirus Disease 2019 (COVID-19) Outbreak in the Republic of Korea from January 19 to March 2, 2020. J Korean Med Sci. 2020 Mar 16; 35(10):e112. doi: 10.3346/jkms.2020.35.e112.

6. I also reviewed the following legal documents:
a. Declaration of S.U.R., Nicaraguan national detained at the Adams County Correctional Center;
b. Declaration of T.M.F., Cameroonian national detained at the LaSalle Detention Facility;
c. Southern Poverty Law Center webpage related to the instant litigation, available at: https://www.splcenter.org/seeking-justice/case-docket/heredia-mons-et-alv-mcaleenan-et-al;
d. ICE COVID-19 guidance available at: https://www.ice.gov/covid19; e. CDC guidance for correctional-detention facilities available at:
https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html#For_cases; and f. ICE – Detention Management guidance available at: https://www.ice.gov/detention-management.

III.

Formal Analysis.

A. Global and US-Specific Status of the SARS-CoV-2 (COVID-19) Pandemic.

7. The Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) is a newly

emerging zoonotic agent initially identified in December 2019 that as of the date of this

writing, has spread to 173 countries, causing 487,648 confirmed cases and 20,000

deaths. This viral pathogen causes the Coronavirus Disease 2019 (COVID-19).

Infection with COVID-19 is associated with significant morbidity and mortality,

especially in patients above 50 years of age and those with chronic medical conditions.

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8. As of March 26, 2020, there have been 69,246 confirmed cases of COVID-19 with 1,046 deaths reported in the US. There has been reports of confirmed cases in all US states and most states have already reported deaths. The epicenters in the US territory began in the Pacific Northwestern states and then to California and the Northeast, particularly New York City and New Jersey.
9. However, there is an increasing number of cases and deaths reported in the South. For example, as of March 26, 2020, the Louisiana Department of Health reports 2,305 confirmed cases and 83 deaths. (http://ldh.la.gov/Coronavirus/). The Mississippi State Department of Health reports 485 confirmed cases and 6 deaths. (https://msdh.ms.gov/msdhsite/_static/14,0,420.html#Mississippi).
10. Many ICE detention centers are located in the South and the rapid spread of this viral infection among these states is a concern that we need to monitor closely from an epidemiological perspective. Recent reports by the CDC show that 31% of COVID-19 cases, 45% of hospitalizations, and 80% of deaths occurred among adults over 65 years of age. Case-fatality in persons aged over 85 ranged from 10-27%, followed by 3-11% among persons aged 65 to 84, 1% among persons aged 55 to 64, and less than 1% among persons aged 20 to 54. B. Risk of Immigration Detention Centers Fueling the COVID-19 Pandemic.
11. I reviewed COVID-19 guidance by ICE and CDC recommendations for carceral settings. ICE’s proposed plans and interventions to halt the spread of COVID-19 are well delineated and useful. The CDC recommendations provide some guidance that is general and may take into account the realities of some of these detention centers.
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12. Both sets of guidance address social distancing in these centers, which appears to be difficult, if not impossible, in settings where many individuals are living in close quarters with a large number of beds per room or dorm. However, these recommendations and guidance are likely insufficient in case of a large outbreak due to this highly transmissible virus.
13. I have experience providing care to individuals in civil detention centers and I have performed medical forensic examinations and medical second opinion evaluations for patients in the custody of the Department of Homeland Security. Based on my conversations with patients, my own observations, and information that exists regarding the resources available within immigration detention facilities as detailed by the ICE Health Services Corps, it is my professional opinion that the medical care available in immigration detention centers cannot properly accommodate the needs of patients should there be an outbreak of COVID-19 in these facilities. Immigration detention centers are often poorly equipped to diagnose and manage infectious disease outbreaks. Many of these centers lack onsite medical facilities or 24-hour medical care.
14. In summary, I am concerned about the treatment of immigrants inside detention centers, which could make the current COVID-19 epidemic worse in the US by contributing to a high fatality rate among detained individuals and potentially spreading the outbreak into the larger community.
15. Immigration detention centers in the US are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes the Coronavirus Disease (COVID-19). Given the large population density of immigration detention centers, and the ease of transmission of this viral pathogen, the attack rate
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inside these centers may reach exponential proportions consuming significant medical care and financial resources.
C. Populations at Risk of Severe Disease and Death Due to SARS-CoV-2 Infection under ICE Custody.
16. According to the CDC, groups deemed to be at high risk of developing severe disease and dying from COVID-19 include those above 50 years of age and those with underlying medical conditions (regardless of their age). (See Table 1 below). These cases are also amplifiers or hyper-spreaders of the infection since they tend to have high viral concentrations in their respiratory secretions.
17. The clinical experience in China, South Korea, Italy, and Spain; and within the US has shown that 80% of confirmed cases tend to occur in persons 30 to 69 years of age regardless of whether they had underlying medical conditions. Of these, 20% develop severe clinical manifestations or become critically ill. Among those with severe clinical manifestations, regardless of their age or underlying medical conditions, the virus progresses into respiratory failure, septic shock, and multiorgan dysfunction requiring intensive care support including the use of mechanical ventilator support. The overall case fatality rate is 10-14% of those who develop severe disease. In China, 80% of deaths occurred among adults 60 years of age or older.

Table 1. Risk factors for developing severe disease and death

Age groups at high risk of developing severe >50 years (1% CFR)*

disease and dying without underlying medical 60-69 years (3.6% CFR)

conditions

70-79 years (8% CFR)

Groups with underlying medical conditions at -Cardiovascular Disease (congestive heart

high risk of dying regardless of their age

failure, history of myocardial infarction,

history of cardiac surgery)

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-Systemic Arterial Hypertension (high blood pressure) -Chronic Respiratory Disease (asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other pulmonary diseases) -Diabetes Mellitus -Cancer -Chronic Liver Disease -Chronic Kidney Disease -Autoimmune Diseases -Severe Psychiatric Illness ** -History of Transplantation -HIV/AIDS *CFR= Case Fatality Rate. This is an indicator of lethality used during outbreaks to identify the number of individuals who succumb out of those infected. ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020; 35(10): e112).
D. Potential Impact of the COVID-19 Behind the Walls of Immigration Detention Centers in the US.
18. There is a growing number of confirmed cases in the US, increasing numbers of hospitalizations and admissions to intensive care units, and many deaths. In this wave of the pandemic or in subsequent ones, it is likely the number of infected individuals will continue to augment. In the closed settings of immigration detention centers, where there is overcrowding and confinement of a large number of persons, networks of transmission become highly conducive to spread rapidly.
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19. There is evidence of substantial undocumented infection facilitating the rapid dissemination of novel coronavirus SARS-CoV-2 which is responsible for 79% of documented cases of COVID-19 in China. Once an individual is exposed to this virus from either a symptomatic individual (21% of cases) or from asymptomatic individuals (79% of cases), the shortest incubation period is 3 days with a median incubation period of 5.1 (95% CI 4.5 to 5.8 days). Overall, 97.5% of persons who develop symptoms do so within 11.5 days of the initial exposure. Most persons with COVID-19 who develop severe disease do so immediately after admission or within 3-5 days from their initial presentation and represent 53% of those requiring intensive care unit admissions and advanced supportive care. At my current institution, the two confirmed deaths occurred within 48 hours of admission to the hospital.
20. Given the high population density of jails, prisons, and juvenile detention centers, and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, that is shedding the virus enters a facility. For every person with the virus, they will infect more than 2 other people – whether they be incarcerated individuals or staff. Of those infected, one-fifth will get so ill that they require hospital admission, and about 10% will develop severe disease requiring treatment only available in the intensive care unit.
21. To illustrate the magnitude of this threat, a jail or prison that holds 1500 individuals can anticipate that 500-650 individuals may acquire the infection. Of these, 100 to 150 individuals may develop symptoms and may progress to develop severe disease requiring admission to the hospital, potentially to an intensive care unit. Of these, 5-10 individuals may die from respiratory failure, septic shock and multiorgan failure. If the
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approximately 150 individuals are not hospitalized, they will all be at high risk of death without access to proper equipment, such as ventilators. 22. Reducing the number of incarcerated individuals is necessary for effective infection control and sanitization practices that could dramatically reduce the burden COVID-19 will inevitably place on our health system. Urgent action is needed given the predicted shortage of medical supplies such as personal protective equipment, shortage of staff as medical personnel become ill themselves, and limited life-saving resources such as ventilators.
E. A COVID-19 Outbreak in a Detention Center Will Likely Overwhelm Local Healthcare Systems
23. Detention of any kind requires large groups of people to be held together in a confined space and creates the worst type of setting for curbing the spread of a highly contagious infection such as COVID-19. To contain the spread of the disease, infection prevention protocols must be meticulously followed.
24. The number of private rooms in a typical detention facility is insufficient to comply with the recommended airborne/droplet isolation guidelines. Another important consideration that complicates disinfection and decontamination practices is the ability of this novel coronavirus to survive for extended periods of time on materials that are highly prevalent in secure settings, such as metals and other non-porous surfaces. Current outbreak protocols require frequent disinfection and decontamination of all surfaces of the facility, which is exceedingly difficult given the large number of
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incarcerated individuals, frequent interactions between incarcerated individuals and staff, and regularity with which staff move in and out of each facility. 25. Responding to an outbreak requires significant improvements in staffing, upgrading medical equipment, substantial supplies including antibiotics, intravenous infusions, cardiac and respiratory monitors, devices for oxygen supply, and personal protection supplies among persons at high risk of severe COVID-19 disease. Additionally, this outbreak calls for highly trained staff to correctly institute, enforce isolation, quarantine procedures, and have training on the appropriate utilization of personal protective equipment. It is essential that nursing and medical staff be trained in infection control prevention practices, implementing triage protocols, and the medical management of suspected, probable and confirmed cases of coronavirus infection. 26. These same personnel would have to initiate the management of those with severe disease. Since these are closed facilities, the number of exposed, infected, and ill individuals may rapidly overwhelm staff and resources. This is particularly important in rural and semirural settings where many immigration detention centers are located, particularly in Southern States and where they may have contact with a limited number of surrounding medical centers. As a result, many patients would need transfer to hospitals near these facilities, likely overwhelming the surrounding healthcare systems, which are already functioning at full capacity caring for the general non-incarcerated community. 27. A large outbreak of COVID-19 in an immigration detention facility would put a tremendous strain on the medical system to the detriment of patients in the communities
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surrounding these centers. It is reasonable to anticipate that there will be the loss of additional lives that could have otherwise been saved. IV. Expert Opinion. 28. There is an urgent need to consider alternative strategies to dilute the community-based impact of an outbreak inside immigration detention centers. Therefore, it is my professional view, that releasing detainees/asylum seekers on parole from these centers constitutes a high-yield public health intervention that may significantly lessen the impact of this outbreak. In particular, targeting the release of persons in the age groups at risk of severe disease and death; and persons with underlying medical conditions, may lessen the human and financial costs that this outbreak may impose on ICE detention facilities nationwide.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 26th day of March 2020 at 12631 E 17th Ave, Aurora, CO 80045, United States.
______________________________ Carlos Franco Paredes, M.D., M.P.H. Associate Professor of Medicine Division of Infectious Diseases Department of Medicine Division of infectious Diseases Program Director Infectious Disease Fellowship Training Program, University of Colorado
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Exhibit A. Curriculum Vitae – Carlos Franco-Paredes MD, MPH

PERSONAL INFORMATION Carlos Franco-Paredes, M.D., M.P.H. Carlos.franco-paredes@cuanschutz.edu carlos.franco.paredes@gmail.com US Citizen

CURRENT PROFESSIONAL POSITION AND ACTIVITIES:
 Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus and Infectious Diseases (July 2018 - ongoing).
 Fellowship Program Director, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus (March 2019- ongoing).

EDUCATION 1989 -1995 1996-1999 1999-2002 1999-2002
1999 - 2002 2001-2002 2006

M.D. - La Salle University School of Medicine, Mexico City, Mexico Internship and Residency in Internal Medicine, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellowship in Infectious Diseases, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellow in AIDS International Training and Research Program, NIH Fogarty Institute, Rollins School of Public Health, Emory University, Atlanta, GA Masters Degree in Public Health (M.P.H.) Rollins School of Public Health, Emory University, Atlanta, GA, Global Health Track Chief Medical Resident, Grady Memorial Hospital, Emory University School of Medicine, Atlanta, GA Diploma Course in Tropical Medicine, Gorgas. University of Alabama, Birmingham and Universidad Cayetano Heredia, Lima Peru

CERTIFICATIONS 1999-Present Diplomat in Internal Medicine American Board of Internal Medicine (Recertification 11/2010-11/2020) 2001-present Diplomat in Infectious Diseases, American Board of Internal Medicine, Infectious Diseases Subspecialty (Recertification 04/2011-04/2021) 2005-present Travel Medicine Certification by the International Society of Travel Medicine 2007-present Tropical Medicine Certification by the American Society of Tropical Medicine – Diploma in Tropical Medicine and Hygiene (DTMH - Gorgas)

EMPLOYMENT HISTORY:  2002 - 2004 - Advisor to the Director of the National Center for Child and

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Adolescent Health and of the National Immunization Council (NIP), Ministry of Health Mexico; my activities included critical review of current national health plans on vaccination, infectious diseases, soil-transmitted helminthic control programs; meningococcal disease outbreaks in the jail system, an outbreak of imported measles in 2003-2004 and bioterrorism and influenza pandemic preparedness. I represented the NIP at meetings of the Global Health Security Action Group preparation of National preparedness and response plans for Mexico  2005 – 2011- Co-Director Travel Well Clinic, Emory University Emory Midtown Hospital  2004- 8/2009 -Assistant Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  3/2008-10/2009 Consultant WHO, HQ, Geneva, Influenza Vaccine  9/2009- 3/2011 Associate Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  1/2007 – 3/2011 Assistant Professor of Public Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA  4/2011 –5/2013 - Associate Professor of Public Health in Global Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA  2010 - WHO HQ Consultant for a 4-month-period on the Deployment of H1N1 influenza vaccine in the African Region, Jan to March 2010, Switzerland Geneva, WHO HQ 2010 sponsored by John Snow Inc. USAID, Washington, D.C.  2014-2015 - Consultant International Association of Immunization Managers, Regional Meeting of the Middle Eastern and North African Countries and Sub Saharan Africa, held in Durban South Africa, Sept 2014; and as rapporteur of the Inaugural Conference, 3-4 March 2015, Istanbul, Turkey.  3/2011- 5/2017 - Phoebe Physician Group –Infectious Diseases Clinician Phoebe Putney Memorial Hospital, Albany, GA.  5/2015 - 9/2015 - Consultant Surveillance of Enteric Fever in Asia (Pakistan, Indonesia, Bangladesh, Nepal, India) March 2015-October 2015.  June 19, 2017-June 31, 2018–Visiting Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver, Anschutz Medical Campus  June 2004- present - Adjunct Professor of Pediatrics, Division of Clinical Research, Hospital Infantil de México, Federico Gómez, México City, México. Investigador Nacional Nivel II, Sistema Nacional de Investigadores (12/2019); SNI III Sistema Nacional de Investigadores (1/2020-); Investigador Clínico Nivel E, Sistema Nacional de Hospitales
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HONORS AND AWARDS
1995 Top Graduating Student, La Salle School of Medicine
1997 Award for Academic Excellence in Internal Medicine, EUSM 1999 Alpha Omega Alpha (AOA) House staff Officer, EUSM 2002 Pillar of Excellence Award. Fulton County Department of Health and
Wellness Communicable Disease Prevention Branch, Atlanta GA 2002 Emory University Humanitarian Award for extraordinary service in
Leadership Betterment of the Human Condition the Emory University Rollins School of Public Health 2002 Winner of the Essay Contest on the Health of Developing Countries: Causes and Effects in Relation to Economics or Law, sponsored by the Center for International Development at Harvard University and the World Health Organization Commission on Macroeconomics Health with the essay "Infectious Diseases, Non-zero Sum Thinking and the Developing World” 2002 “James W. Alley” Award for Outstanding Service to Disadvantaged Populations, Rollins School of Public Health of Emory University May 2002. Received during Commencement Ceremony Graduation to obtain the Degree of Masters in Public Health 2006 Golden Apple Award for Excellence in Teaching, Emory University, School of Med 2006 Best Conference Award Conference, “Juha Kokko” Best Conference Department of Medicine, EUSM 2007 “Jack Shulman” Award Infectious Disease fellowship, Excellence in Teaching Award, Division of Infectious Diseases, EUSM 2007 Emerging Threats in Public Health: Pandemic Influenza CD-ROM, APHA’s Public Health Education and Health Promotion Section, Annual Public Health Materials Contest award 2009 National Center for Preparedness, Detection, and Control of Infectious Diseases. Honor Award Certificate for an exemplary partnership in clinical and epidemiologic monitoring of illness related to international travel. NCPDCID Recognition Awards Ceremony, April 2009. CDC, Atlanta, GA 2012 The ISTM Awards Committee, directed by Prof. Herbert DuPont, selected the article "Rethinking typhoid fever vaccines" in the Journal of Travel Medicine (Best Review Article) 2012 Best Clinical Teacher. Albany Family Medicine Residency Program 2018 Outstanding Educator Award – Infectious Diseases Fellowship, Division of Infectious Diseases, University of Colorado, Anschutz Medical Center, Aurora Colorado
EDITORSHIP AND EDITORIAL BOARDS 2007-Present Deputy/Associate Editor PLoS Neglected Tropical Disease
Public Library of Science
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2017-2018 2007-2019

Deputy Editor, Annals of Clinical Microbiology and Antimicrobials BMC Core Faculty International AIDS Society-USA -Travel and Tropical Medicine/HIV/AIDS

INTERNATIONAL COMMITTEES 2018- Member of the Examination Committee of the International Society of Travel Medicine.
Developing Examination Questions and Proctoring the Certificate in Traveler’s Health Examination

Proctor Certificate of Traveler’s Health Examination (CTH) as part of the International Society of Travel Medicine– 12th Asia-Pacific Travel Health Conference, Thailand 21-24, March 2019 Proctor Certificate of Traveler’s Health Examination (CTH), Atlanta, GA, September, 2019

PRESENTATIONS AT NATIONAL/INTERNATIONAL MEETINGS 2017- Meeting of the Colombian Society of Infectious Diseases, August 2017: Discussion of Clinical Cases Session, Influenza, MERS-Coronavirus, Leprosy, Enteric Fever 2018 – Cutaneous Mycobacterial Diseases, Universidad Cayetano Heredia, Lima, Peru, Mayo 2018 2018 – Scientific Writing Seminar, ACIN, Pereira, Colombia, August 2-4, 2018 2019 – First International Congress of Tropical Diseases ACINTROP 2019. March 21, 2019, Monteria, Colombia, Topic: Leishmaniasis 2019 – One Health Symposium of Zoonoses, Pereira Colombia, August 16-17, 2019, Topic: Zoonotic Leprosy 2019 – Congress Colombian Association of Infectious Diseases (ACIN), Topic: Leprosy in Latin America, Cartagena, Colombia, August 21-24, 2019 2019 – World Society Pediatric Infectious Diseases, Manila Philippines, November 7-9, 2019 Tropical Medicine Symposium: Diagnosis, Treatment, and Prevention of Leprosy. 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 26, 2019, Oral Transmission of Leprosy Symposium 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 27, 2019, Leprosy Situation in the Americas.

PUBLICATIONS BOOKS
Franco-Paredes C, Santos-Preciado JI. Neglected Tropical Diseases in Latin America and the
Caribbean, Springer-Verlag, 2015. ISBN-13: 978-3709114216 ISBN-10: 3709114217 Franco-Paredes C. Core Concepts in Clinical Infectious Diseases, Academic Press, Elsevier, March 2016. ISBN: 978-0-12-804423-0

RESEARCH ORIGINAL ARTICLES (clinical, basic science, other) in refereed journals: 1. Del Rio C, Franco-Paredes C, Duffus W, Barragan M, Hicks G. Routinely Recommending HIV Testing at a Large Urban Urgent-Care Clinic – Atlanta, GA. MMWR Morbid Mortal Wkly Rep 2001; 50:538-541.

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2. Del Rio C, Barragán M, Franco-Paredes C. Pneumocystis carinii Pneumonia. N Engl J Med 2004; 351:1262-1263. 3. Barragan M, Hicks G, Williams M, Franco-Paredes C, Duffus W, Del Rio C. Health Literacy is Associated with HIV Test Acceptance. J Gen Intern Med 2005; 20:422-425. 4. Rodriguez-Morales A, Arria M, Rojas-Mirabal J, Borges E, Benitez J, Herrera M, Villalobos C, Maldonado A, Rubio N, Franco-Paredes C. Lepidopterism Due to the Exposure of the Moth Hylesia metabus in Northeastern Venezuela. Am J Trop Med Hyg 2005; 73:991-993. 5. Rodriguez-Morales A, Sánchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. White Blood Cell Counts in Plasmodium vivax. J Infect Dis 2005; 192:1675-1676. 6. Franco-Paredes C, Nicolls D, Dismukes R, Kozarsky P. Persistent Tropical Infectious Diseases among Sudanese Refugees Living in the US. Am J Trop Med Hyg 2005; 73: 1. 7. Osorio-Pinzon J, Moncada L, Franco-Paredes C. Role of Ivermectin in the Treatment of Severe Orbital Myiasis Due to Cochliomyia hominivorax. Clin Infect Dis 2006; 3: e57-9. 8. Rodriguez-Morales A, Franco-Paredes C. Impact of Plasmodium vivax Malaria during Pregnancy in Northeastern Venezuela. Am J Trop Med Hyg 2006; 74:273-277. 9. Rodriguez-Morales A, Nestor P, Arria M, Franco-Paredes C. Impact of Imported Malaria on the Burden of Malaria in Northeastern Venezuela. J Travel Med 2006; 13:15-20. 10. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Is anemia in Plasmodium vivax More Severe and More Frequent than in Plasmodium falciparum? Am J Med 2006; 119:e9-10. 11. Hicks G, Barragan M, Franco-Paredes C, Williams MV, del Rio C. Health Literacy is a Predictor of HIV Knowledge. Fam Med J 2006; 10:717-723. 12. Cardenas R, Sandoval C, Rodriguez-Morales A, Franco-Paredes C. Impact of Climate Variability in the Occurrence of Leishmaniasis in Northeastern Colombia. Am J Trop Med Hyg 2006; 75:273-7. 13. Franco-Paredes C, Nicolls D, Dismukes R, Wilson M, Jones D, Workowski K, Kozarsky P. Persistent and Untreated Tropical Infectious Diseases among Sudanese Refugees in the US. Am J Trop Med Hyg 2007; 77:633-635. 14. Rodríguez-Morales AJ, Sanchez E, Arria M, Vargas M, Piccolo C, Colina R, FrancoParedes C. Hemoglobin and haematocrit: The Threefold Conversion is also Non Valid for Assessing Anaemia in Plasmodium vivax Malaria-endemic Settings. Malaria J 2007; 6:166. 15. Franco-Paredes C, Jones D, Rodriguez-Morales AJ, Santos-Preciado JI. Improving the Health of Neglected Populations in Latin America. BMC Public Health 2007; 7. 16. Kelly C, Hernández I, Franco-Paredes C, Del Rio C. The Clinical and Epidemiologic Characteristics of Foreign-born Latinos with HIV/AIDS at an Urban HIV Clinic. AIDS Reader 2007; 17:73-88. 17. Hotez PJ, Bottazzi ME, Franco-Paredes C, Ault SK, Roses-Periago M. The Neglected Tropical Diseases of Latin America and the Caribbean: Estimated Disease Burden and Distribution and a Roadmap for Control and Elimination. PLoS Negl Trop Dis 2008; 2:e300. 18. Tellez I, Barragan M, Nelson K, Del Rio C, Franco-Paredes C. Pneumocystis jiroveci (PCP) in the Inner City: A Persistent and Deadly Pathogen. Am J Med Sci 2008; 335:192-197. 19. Rodriguez-Morales AJ, Olinda, Franco-Paredes C. Cutaneous Leishmaniasis Imported from Colombia to Northcentral Venezuela: Implications for Travel Advice. Trav Med Infect Dis 2008; 6(6): 376-9.
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20. Jacob J, Kozarsky P, Dismukes R, Bynoe V, Margoles L, Leonard M, Tellez I, FrancoParedes C. Five-Year Experience with Type 1 and Type 2 Reactions in Hansen’s Disease at a US Travel Clinic. Am J Trop Med Hygiene 2008; 79:452-454. 21. Delgado O, Silva S, Coraspe V, Ribas MA, Rodriguez-Morales AJ, Navarro P, FrancoParedes C. Epidemiology of Cutaneous Leishmaniasis in Children and Adolescents in Venezuela. Trop Biomed. 2008; 25(3):178-83. 22. Franco-Paredes C, Lammoglia L, Hernandez I, Santos-Preciado JI. Epidemiology and Outcomes of Bacterial Meningitis in Mexican Children: 10-Years' Experience (1993-2003). Int J Infect Dis 2008; 12:380-386. 23. Pedroza A, Huerta GJ, Garcia ML, Rojas A, Lopez I, Peñagos M, Franco-Paredes C, Deroche C, Mascareñas C. The Safety and Immunogenicity of Influenza Vaccine in Children with Asthma in Mexico. Int J Infect Dis 2009; 13(4): 469-75. 24. Museru O, Franco-Paredes C. Epidemiology and Outcomes of Hepatitis B Virus Infection among Refugees Seen at US Travel Medicine Clinic: 2005-2008. Travel Med Infect Dis 2009; 7: 171-179. 25. Rodriguez-Morales AJ, Olinda M, Franco-Paredes C. Imported Cases of Malaria Admitted to Two Hospitals of Margarita Island, Venezuela: 1998-2005. Travel Med Infect Dis 2009: (1): 48-45. 26. Kelley CF, Checkley W, Mannino DM, Franco-Paredes C, Del Rio C, Holguin F. Trends in Hospitalizations for AIDS-associated Pneumocystis jiroveci Pneumonia in the United States (1986-2005). Chest 2009; 136(1): 190-7. 27. Carranza M, Newton O, Franco-Paredes C, Villasenor A. Clinical Outcomes of Mexican Children with Febrile Acute Upper Respiratory Infection: No Impact of Antibiotic Therapy. Int J Infect Dis 2010; 14(9): e759-63. 28. Museru O, Vargas M, Kinyua M, Alexander KT, Franco-Paredes C, Oladele A. Hepatitis B Virus Infection among Refugees Resettled in the US: High Prevalence and Challenges in Access to Health Care. J Immigrant Minor Health 2010; 29. Moro P, Thompson B, Santos-Preciado JI, Weniger B, Chen R, Franco-Paredes C. Needlestick injuries in Mexico City sanitation workers. Revista Panamericana de Salud Pública/Pan American Journal of Public Health 2010; 27 (6): 467-8. 30. Barragan M, Holtz M, Franco-Paredes C, Leonard M. The Untimely Misfortune of Tuberculosis Diagnosis at time of Death. Infect Dis Clin Pract 2010; 18(6):1-7. 31. Hochberg N, Armstrong W, Wang W, Sheth A, Moro R, Montgomery S, Steuer F, Lennox J, Franco-Paredes C. High Prevalence of Persistent Parasitic Infections in Foreign-born HIVinfected Persons in the United States. PLoS Neglect Dis 2011; 5(4): e1034. 32. Larocque RC, Rao SR, Lee J, Ansdell V, Yates JA, Schwartz BS, Knouse M, Cahill J, Hagmann S, Vinetz J, Connor BA, Goad JA, Oladele A, Alvarez S, Stauffer W, Walker P, Kozarsky P, Franco-Paredes C, Dismukes R, Rosen J, Hynes NA, Jacquerioz F, McLellan S, Hale D, Sofarelli T, Schoenfeld D, Marano N, Brunette G, Jentes ES, Yanni E, Sotir MJ, Ryan ET; the Global TravEpiNet Consortium. Global TravEpiNet: A National Consortium of Clinics Providing Care to International Travelers--Analysis of Demographic Characteristics, Travel Destinations, and Pretravel Healthcare of High-Risk US International Travelers, 2009-2011. Clin Infect Dis. 2012; 54(4):455-462. 33. Espinosa-Padilla SE, Murata C, Estrada-Parra S, Santos-Argumendo L, Mascarenas C, Franco-Paredes C, Espinosa-Rosales FJ. Immunogenicity of a 23-valent pneumococcal polysaccharide vaccine among Mexican children. Arch Med Res 2012;
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34. Harris JR, Lockhart SR, Sondermeyer G, Vugia DJ, Crist MB, D'Angelo MT, Sellers B, Franco-Paredes C, Makvandi M, Smelser C, Greene J, Stanek D, Signs K, Nett RJ, Chiller T, Park BJ. Cryptococcus gattii infections in multiple states outside the US Pacific Northwest. Emerg Infect Dis. 2013; 19 (10):1620-6. 35. Franco-Paredes C. Aerobic actinomycetes that masquerade as pulmonary tuberculosis. Bol Med Hosp Infant Mex 2014; 71(1): 36-40. 36. Chastain DB, Ngando I, Bland CM, Franco-Paredes C, and Hawkins WA. Effect of the 2014 Clinical and Laboratory Standard Institute urine-specific breakpoints on cefazolin susceptibility rates at a community teaching hospital. Ann Clin Microbiol Antimicrob 2017; 16(1): 43. 37. Kashef Hamadani BH, Franco-Paredes C, MCollister B, Shapiro L, Beckham JD, HenaoMartinez AF. Cryptococcosis and cryptococcal meningitis- new predictors and clinical outcomes at a United States Academic Medical Center. Mycoses 2017; doi: 10.1111/myc.12742. 38. Chastain DB, Franco-Paredes C, Wheeler SE, Olubajo B, Hawkins A. Evaluating Guideline Adherence regarding Empirical Vancomycin use in patients with neutropenic fever. Int J Infect Dis 2018; Feb 22. pii: S1201-9712(18)30052-3. doi: 10.1016/j.ijid.2018.02.016. PMID: 29477362 39. Parra-Henao G, Amioka E, Franco-Paredes C, Colborn KL, Henao-Martinez AF. Heart failure symptoms and ecological factors as predictors of Chagas disease among indigenous communities in the Sierra Nevada de Santa Marta, Colombia. J Card Fail 2018; Mar 26. pii: S1071-9164(18)30119-2. doi: 10.1016/j.cardfail.2018.03.007. 40. Vela Duarte D, Henao-Martinez AF, Nyberg E, Castellanos P, Franco-Paredes C, Chastain DB, Lacunar Stroke in Cryptococcal Meningitis: Clinical and Radiographic Features. J Stroke and Cerebrovascular Disease 2019; 41. Chastain DB, Henao-Martinez AF, Franco-Paredes C. A clinical pharmacist survey of prophylactic strategies used to prevent adverse events of lipid-associated formulations of amphotericin B. Infect Dis 2019; 42. Henao-Martínez AF, Chadalawada S, Villamil-Gomez WE, DeSanto K, Rassi A Jr, FrancoParedes C. Duration and determinants of Chagas latency: an etiology and risk systematic review protocol. JBI Database System Rev Implement Rep. 2019 Jul 22. doi: 10.11124/JBISRIR-D-1800018.
RESEARCH ORIGINAL ARTICLES AS COLLABORATOR (clinical, basic science, other) in refereed journals: 43. Benator D, Bhattacharya M, Bozeman L, Burman W, Cantazaro A, Chaisson R, Gordin F, Horsburgh CR, Horton J, Khan A, Lahart C, Metchock B, Pachucki C, Stanton L, Vernon A, Villarino ME, Wang YC, Weiner M, Weis S; Tuberculosis Trials Consortium. Rifapentine and Isoniazid Once a Week versus Rifampicin and Isoniazid twice a week for Treatment of Drug-susceptible Pulmonary Tuberculosis in HIV-Negative Patients: a Randomised Clinical Trial. Lancet 2002; 360:528-34. 44. Weiner M, Burman W, Vernon A, Benator D, Peloquin CA, Khan A, Weis S, King B, Shah N, Hodge T; Tuberculosis Trials Consortium. Low INH Concentrations and Outcome of Tuberculosis Treatment with Once-weekly INH and Rifapentine. Am J Rev Crit Care Med 2003; 167:1341-1347.
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45. Jasmer RM, Bozeman L, Schwartzman K, Cave MD, Saukkonen JJ, Metchock B, Khan A, Burman WJ; Tuberculosis Trials Consortium. Recurrent Tuberculosis in the United States and Canada: Relapse or Reinfection? Am J Respir Crit Care Med 2004; 170:1360-1366. Mendelson M, Davis XM, Jensenius M, Keystone JS, von Sonnenburg F, Hale DC, Burchard GD, Field V, Vincent P, Freedman DO; GeoSentinel Surveillance Network. Health risks in travelers to South Africa: the GeoSentinel experience and implications for the 2010 FIFA World Cup. Am J Trop Med Hyg. 2010; 82(6): 991-5. 46. Hagmann S, Neugebauer R, Schwartz E, Perret C, Castelli F, Barnett ED, Stauffer WM; GeoSentinel Surveillance Network. Illness in children after international travel: analysis from the GeoSentinel Surveillance Network. Pediatrics. 2010; 1 25(5): e1072-80. 47. Schlagenhauf P, Chen LH, Wilson ME, Freedman DO, Tcheng D, Schwartz E, Pandey P, Weber R, Nadal D, Berger C, von Sonnenburg F, Keystone J, Leder K; GeoSentinel Surveillance Network. Sex and gender differences in travel-associated disease. Clin Infect Dis. 2010; 50 (6): 826-32. 48. Jensenius M, Davis X, von Sonnenburg F, Schwartz E, Keystone JS, Leder K, Lopéz-Véléz R, Caumes E, Cramer JP, Chen L, Parola P; GeoSentinel Surveillance Network. Multicener GeoSentinel analysis of rickettsial diseases in international travelers, 1996-2008. Emerg Infect Dis. 2009; 15(11):1791-8. 49. Chen LH, Wilson ME, Davis X, Loutan L, Schwartz E, Keystone J, Hale D, Lim PL, McCarthy A, Gkrania-Klotsas E, Schlagenhauf P; GeoSentinel Surveillance Network. Emerg Infect Dis. 2009; 15(11): 1773-82. 50. Nicolls DJ, Weld LH, Schwartz E, Reed C, von Sonnenburg F, Freedman DO, Kozarsky PE; GeoSentinel Surveillance Network. Characteristics of schistosomiasis in travelers reported to the GeoSentinel Surveillance Network 1997-2008. Am J Trop Med Hyg 2008; 79(5): 729-34. 51. Greenwood Z, Black J, Weld L, O'Brien D, Leder K, Von Sonnenburg F, Pandey P, Schwartz E, Connor BA, Brown G, Freedman DO, Torresi J; GeoSentinel Surveillance Network. Gastrointestinal infection among international travelers globally. J Travel Med 2008; 1 5(4):221-8. 52. Davis XM, MacDonald S, Borwein S, Freedman DO, Kozarsky PE, von Sonnenburg F, Keystone JS, Lim PL, Marano N; GeoSentinel Surveillance Network. Health risks in travelers to China: the GeoSentinel experience and implications for the 2008 Beijing Olympics. Am J Trop Med Hyg 2008; 79(1): 4-8. 53. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Vaccine preventable diseases in returned international travelers: results from the GeoSentinel Surveillance Network. Vaccine 2010; 28(46):7389-95. 54. Esposito DH, Han PV, Kozarsky PE, Walker PF, Gkrania-Klotsas E, Barnett ED, Libman M, McCarthy AE, Field V, Connor BA, Schwartz E, MacDonald S, Sotir MJ; GeoSentinel Surveillance Network. Characteristics and spectrum of disease among ill returned travelers
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from pre- and post-earthquake Haiti: The GeoSentinel experience. Am J Trop Med Hyg 2012 Jan; 86(1):23-8. 55. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Latitudinal patterns of travel among returned travelers with influenza: results from the GeoSentinel Surveillance Network, 1997-2007. J Travel Med 2012; 19(1):4-8. doi: 10.1111/j.1708-8305.2011.00579.x.
REVIEW, EDITORIALS, CASE SERIES, CASE REPORT ARTICLES: 56. Franco-Paredes C, Jurado R. Ankylosing Spondylitis Fibrocavitary Lung Disease. Clin Infect Dis 2001; 32:1062. 57. Franco-Paredes C, Evans J, Jurado R. Diabetes Insipidus due to Streptococcus pneumoniae Meningitis. Arch Intern Med 2001; 161; 1114-15. 58. Franco-Paredes C, Blumberg H. Tuberculosis Psoas Abscess caused by Mycobacterium tuberculosis and Staphylococcus aureus: Case Report and Review. Am J Med Sci 2001; 321:415-17. 59. Jurado R, Franco-Paredes C. Aspiration Pneumonia: A Misnomer. Clin Infect Dis 2001;33:1612-3. 60. Del Rio Carlos, Franco-Paredes C. Bioterrorism: A New Public Health Problem. Sal Publ Mex 2001; 43:585-88. 61. Franco-Paredes C, Blumberg H. New Concepts in the Diagnosis of Latent Tuberculosis Infection. Consultant 2001; 41:1105-1121. 62. Franco-Paredes C, Bellehemeur T, Sanghi P, et al. Aseptic Meningitis and Retrobulbar Optic Neuritis Caused By VZV Preceding the Onset of PORN in a Patient with AIDS. AIDS 2002; 16:1045-1049. 63. Franco-Paredes C, Mehrabi D, Calle J, Jurado R. Night Sweats Revisited. Infect Dis Clin Pract 2002; 11:291-293. 64. Franco-Paredes C, Jurado R, Del Rio C. The Clinical Utility of the Urine Gram Stain. Infect Dis Clin Pract 2002; 11:561-563. 65. Franco-Paredes C, Agudelo C. Editorial Response: The Ever Expanding Clinical Spectrum of Tuberculosis. J Clin Rheumatol 2002;8:1-2. 66. Franco-Paredes C, Rebolledo P, Folch E, Hernandez I, Del Rio C. Diffuse CD8 Lymphocytosis Syndrome in HIV-infected Patients. AIDS Reader 2002; 12:408-13. 67. Franco-Paredes C. Human Immunodeficiency Virus Infection as a Risk Factor for Tuberculosis Infection and Clinical Disease. Infect Med 2002; 19:475-479. 68. Franco-Paredes C, Leonard M, Jurado R, Blumberg H. Tuberculosis of the Pancreas. Report of two cases and Review of the Literature. Am J Med Sci 2002; 323(1): 54-58. 69. DiazGranados C, Franco-Paredes C, Steinberg J. A Long Suffering Patient with New Abdominal Pain. Clin Infect Dis 2002; 34(9):1213-1214; 1267-1268. 70. Franco-Paredes C, Martin K. Extranodal Rosai-Dorfman Manifested in the Meninges. Southern Med J 2002; 95(9): 1101-1104. 71. Franco-Paredes C, Workowski K, Harris M. Infective Endocarditis-Endarteritis Complicating Coarctation of the Aorta. Am J Med 2002; 112(7):590-92. 72. Folch E, Hernandez I, Barragan M, Franco-Paredes C. Infectious Disease, Non-Zero Sum Thinking and the Developing World. Am J Med Sci 2003; 326:66-72.
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73. Franco-Paredes C, Santos Preciado JI. Parasitology Resources on the World Wide Web: A Powerful Tool for Infectious Diseases Practitioners. Clin Infect Dis 2003; 37:694-701. 74. Franco-Paredes C, Tellez I, Santos-Preciado JI. Monkeypox Virus Infection Appears in the Americas. Salud Publ Mex 2003; 45:428-430. 75. Franco-Paredes C, Del Rio C, Nava Frías M, Rangel Frausto S, Téllez I, Santos Preciado JI. Confronting Bioterrorism: Epidemiologic, Clinical, and Preventive Aspects of Smallpox. Sal Publ Mex 2003; 45:298-309. 76. Franco-Paredes C, Kuri-Morales P, Alvarez-Lucas C, Zavala E, Betancourt M, Nava-Frias M, Santos-Preciado JI. Severe Acute Respiratory Syndrome: A Global View of the Epidemic. Sal Publ Mex 2003; 45:211-220. 77. Huneycut D, Folch E, Franco-Paredes C. Atypical Manifestations of Infections in Patients with Familial Dysautonomia. Am J Med 2003; 115(6): 505-506. 78. Franco-Paredes C, Sanghi P. Progressive Multifocal Leukoencephalopathy. Infect Med 2003; 20(8):376. 79. Franco-Paredes C, Guarner J, McCall C, Mehrabi D, Del Rio C. Clinical and Pathological Recognition of Leprosy. Am J Med 2003; 114(3):246-7. 80. Franco-Paredes C, Lammoglia L, Santos Preciado JI. Historical Perspective of Smallpox in Mexico: Origins, Elimination, and Risk of Reintroduction due to Bioterrorism. Gac Med Mex 2004; 141:321-328. 81. Santos-Preciado JI, Franco-Paredes C. Influenza Vaccine in Childhood: a Preventive Strategy of National Priority. Salud Publ Mex 2004; 46:498-500. 82. Almeida L, Franco-Paredes C, Pérez LF, Santos JI. Meningococcal Disease: Preventive and Clinical Aspects. Salud Publ Mex 2004; 46(5):438-50. 83. Franco-Paredes C, Téllez I, Del Rio C. The Inverse Relationship between Decreased Infectious Diseases and Increased Inflammatory Disease Occurrence. Arch Med Res 2004; 35:258-26. 84. Arria M, Rodríguez-Morales A, Franco-Paredes C. Galeria Eco-epidemiológica de la Cuenca Amazónica. Rev Peru Salud Publ 2005; 22:236-240. 85. Franco-Paredes C, Lammoglia L, Santos-Preciado JI. The Spanish Royal Philanthropic Expedition to Bring Smallpox Vaccination to the New World and Asia in the 19th Century. Clin Infect Dis 2005; 41:1285-1289. 86. Diaz-Borjon A, Lim S, Franco-Paredes C. Multifocal Septic Arthritis: An Unusual Complication of Invasive Streptococcus pyogenes Infection. Am J Med 2005. 118(8): 924-925. 87. Franco-Paredes C, Rodríguez A. Lepromatous Leprosy. Infect Med 2005 88. Santos-Preciado JI, Franco-Paredes C. Tratamiento Acortado Estrictamente Supervisado (TAES o DOTS) Para Tuberculosis en Poblaciones Con Niveles Moderados de Farmacorresistencia: Perspectiva del Impacto Internacional. Rev Inv Clin 2005; 57:488-490. 89. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Severe Thrombocytopenia, Reply to Spinello et al. Clin Infect Dis 2005; 41:1211-1212. 90. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky P. Reply to Newton et al. Clin Infect Dis 2005;41:1688-1689. 91. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Occurrence of Thrombocytopenia in Plasmodium vivax malaria. Clin Infect Dis 2005;41:130131. 92. Franco-Paredes C, Rodríguez-Morales A, Santos-Preciado JI. Bioterrorism: Preparing for the Unexpected. Rev Inv Clin 2005; 57: 57(5):695-705.
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93. Franco-Paredes C, Tellez I, Del Rio C, Santos-Preciado JI. Pandemic Influenza: Impact of Avian Influenza. Salud Publ Mex 2005; 2: 47(2):107-9. 94. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky D. Neurotoxicity Associated To Misdiagnosis of Malaria. Clin Infect Dis 2005; 40:1710-1711. 95. Rodríguez-Morales A, Benitez J, Franco-Paredes C. Plasmodium vivax Malaria Imported from a rural Area Near Caracas Venezuela? J Trav Med 2006; 13:325-326. 96. Franco-Paredes C, Tellez I, Del Rio C. Rapid HIV Testing. Current HIV/AIDS Reports 2006; 3:169-75. 97. Franco-Paredes C, Hidron A, Steinberg JP. Photo Quiz: An 82-year-old Female from Guyana with Fever and Back pain. Chyluria due to Wuchereria bancrofti Infection. Clin Infect Dis 2006; 42 (9): 1297; 1340-1341. 98. Franco-Paredes C, Kozarsky P, Nicolls D, Dismukes R. Pelvic Echinococcosis in a Northern Iraqi Refugee. J Trav Med 2006. 13 (2): 119-122. 99. Franco-Paredes C, Santos-Preciado JI. Prevention of Malaria in Travelers. Lancet Infect Dis 2006; 6:139-149. 100. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42: 731-732. 101. Franco-Paredes C, Diaz-Borjon A, Barragán L, Senger M, Leonard M. The Ever Expanding Association between Tuberculosis and Rheumatologic Diseases. Am J Med 2006; 119:470-477. 102. Franco-Paredes C, Rouphael N, Del Rio C, Santos-Preciado JI. Vaccination Strategies to Prevent Tuberculosis in the New Millennium: From BCG to New Vaccine Candidates. Int J Infect Dis 2006; 10:93-102. 103. Tellez I, Calderon O, Franco-Paredes C, Del Rio C. West Nile Virus: A Reality in Mexico. Gac Med Mex 2006; 142:493-9. 104. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42:731-732. 105. Kieny MP, Costa A, Carrasco P, Perichov Y, Franco-Paredes C, Santos-Preciado JI, et al. A Global Pandemic Influenza Vaccine Action Plan. Vaccine 2006; 24:6367-6370. 106. Franco-Paredes C, Anna Von, Alicia Hidron, Alfonso J. Rodríguez-Morales, Ildefonso Tellez, Maribel Barragán, Danielle Jones, Cesar G. Náquira, Jorge Mendez. Chagas Disease: An Impediment in Achieving the Millennium Development Goals in Latin America. BMC Int Health Hum Rights 2007; 7:7. 107. Von A, Zaragoza E, Jones D, Rodriguez-Morales A, Franco-Paredes C. New Insights into Chagas Disease: A Neglected Disease in Latin America. J Infect Developing Countries 2007; 1:99-111. 108. Tellez I, Franco-Paredes C, Caliendo A, Del Rio C. Rapid HIV Test: A Primer for Clinicians. Infect Med 2007; 24:381-385. 109. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 1. General Aspects and Immunopathogenesis. Clin Cardiol 2007; 30:195-199. 110. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 2. Myocardial Manifestations of Parasitic Diseases. Clin Cardiol 2007; 30:218-222.
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111. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 3. Pericardial Manifestations of Parasitic Diseases and Other Cardiopulmonary Manifestations. Clin Cardiol 2007; 30:277-280. 112. Rouphael N, Talati N, Franco-Paredes C. A Painful Thorn in the Foot: Eumycetoma. Am J Med Sci 2007; 334:142-144. 113. Zimmer S, Franco-Paredes C. Efficacy of Nitazoxanide in the Treatment of Cyclospora cayetanensis in a Patient Allergic to Sulfas. Clin Infect Dis 2007; 44(3):466-7. 114. Kaplan R, Rebolledo P, Gonzalez E, Franco-Paredes C. An Unexpected Visitor: Mycobacterium kansasii Cutaneous Infection. Am J Med 2007; 120(5):415-6. 115. Seybold U, Blumberg H, Talati N, Franco-Paredes C. Hematogenous Osteomyelitis Mimicking Osteosarcoma due to Community Associated Methicillin-Resistant Staphylococcus aureus. Infect 2007; 35(3): 190-3. 116. Liff D, Kraft C, Pohlel K, Sperling L, Chen E, Franco-Paredes C. Nocardia Nova Aortitis Following Coronary Artery Bypass Surgery. J Am Soc Echo 2007; 20(5):537:e7-8. 117. Rodriguez-Morales AJ, Franco-Paredes C. Paracoccidiodomycosis (South American Blastomycosis) of the Larynx Mimicking Carcinoma. Am J Med Sci 2008; 335:149-150. 118. Franco-Paredes C. Filariasis due Loa loa is also a cause of Angioedema. Am J Med 2008; 121(10): e29. 119. Rodriguez-Morales A, Benitez J, Tellez I, Franco-Paredes C. Chagas Disease Screening among Latin American Immigrants in Non-endemic Settings. Travel Medicine and Infectious Disease 2008; 6:162-3. 120. Talati N, Rouphael N, Kuppali K, Franco-Paredes C. Spectrum of Central Nervous System Manifestations due to Rapidly Growing Mycobacteria. Lancet Infect Dis 2008; 8:390-8. 121. Rifakis P, Rodríguez-Morales A, Franco-Paredes C. Atypical Plasmodium vivax Malaria in a Traveler: Bilateral hydronephrosis, Severe Thrombocytopenia, and Hypotension. J Trav Med 2008; 15(2): 119-21. 122. Osorio-Pinzon J, Carvajal C, Sussman O, Buitrago R, Franco-Paredes C. Acute liver failure due to dengue virus infection. Int J Infect Dis 2008; 12: 444-445. 123. Jacob J, Franco-Paredes C. The Stigmatization of leprosy in India and its Impact on future approaches to elimination and control. PloS Neglected Tropical Diseases 2008; 30:e113. 124. Difrancesco L, Mora L, Doss M, Small J, Williams M, Franco-Paredes C. Short of Breath: Not short of diagnosis. J Hosp Med 2009; 4(1):60-7. 125. Whitaker JA, Edupuganti S, Del Rio C, Franco-Paredes C. Rethinking Typhoid Fever Vaccines: Implications for travelers and those living in endemic areas. J Travel Med 2009, 16(1): 46-52. 126. Franco-Paredes C, Hidron A, Lesesne J, Tellez I, Del Rio C. HIV-AIDS: Pretravel recommendations and health-related risks. Topics in HIV 2009; 17(1): 2-11. 127. Franco-Paredes C, Jacob JT, Stryjewska B, Yoder L. Two patients with leprosy and the sudden appearance of Inflammation in the skin and new sensory loss. PLoS Negl Trop Dis 2009; 3(9): e425. 128. Franco-Paredes C, Hidron A, Jacob J, Nicolls D, Kuhar D, Caliendo A. Transplantation and Tropical Infectious Diseases. Int J Infect Dis 2009; 14(3): e189-96. 129. Parker S, Vogenthaler N, Franco-Paredes C. Leishmania tropica Cutaneous and Presumptive Concomitant Viscerotropic Leishmaniasis with Prolonged Incubation. Arch Dermatol 2009; 145(9): 1023-6.
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130. DiazGranados C, Franco-Paredes C. HIV and Chagas Disease Co-Infection: An Evolving Epidemiologic and Clinical Association. Lancet Infect Dis 2009; 9:324-330. 131. Hidron A, Franco-Paredes C, Drenkard C. A rare opportunistic infection in a woman with systemic lupus erythematous and multiple skin lesions. Lupus 2009; 18 (12): 1100-3. 132. Franco-Paredes C, Kozarsky P. The Bottom Line. Am J Med 2009; 122(12): 1067-8. 133. Franco-Paredes C, Bottazzi ME, Hotez PJ. The Unfinished Agenda of Chagas Disease Control in the Era of Globalization. PLoS Negl Trop Dis. 2009 Jul 7; 3(7): e470. 134. Franco-Paredes C, Carrasco P, Del Rio C, Santos Preciado JI. Respuesta al Brote de Influenza A H1N1. Salud Publ Mex 2009; 51 (3): 183-186. 135. Franco-Paredes C. An Unusual Clinical Presentation of Posttraumatic Stress Disorder in a Sudanese Refugee. Journal of Immigrant and Minority Health 2009; 12(2): 267-9. 136. Kempker R, DiFrancesco L, Gorgojo A, Franco-Paredes C. Xantogranulomathous pyelonephritis caused by Community-Associated MRSA. Cases Journal 2009; 2: 7437. 137. Franco-Paredes C, Carrasco P, Santos-Preciado JI. The First Influenza Pandemic in the New Millennium: Lessons Learned Hitherto for Current Control Efforts and Overall Pandemic Preparedness. Journal of Immune Based Therapies and Vaccines 2009, 7:2. 138. Livorsi D, Qureshi S, Howard M, Franco-Paredes C. Brainstem Encephalitis: An Unusual Presentation of Herpes Simplex Virus Infection. J Neurol 2010; 257(9): 1432-7. 139. Del Rio C, Franco-Paredes C. The Perennial threat of influenza viruses: The Mexican Experience during the Influenza A (H1N1) 2009 Pandemic. Arch Med Res 2010; 40(8):641-2. 140. Santos-Preciado JI, Franco-Paredes C, Hernandez-Ramos MI, Tellez I, Del Rio C, Roberto Tapia-Conyer R. What have we learned from the Novel Influenza A (H1N1) Influenza Pandemic in 2009 for strengthening Pandemic Influenza Preparedness? Arch Med Res 2010; 40(8): 673-6. 141. Franco-Paredes C, Hernandez-Ramos MI, Del Rio C, Alexander KT, Tapia-Conyer R, Santos-Preciado JI. H1N1 Influenza Pandemics: Comparing the Events of 2009 in Mexico with those of 1976, and 1918-1919. Arch Med Res 2010; 40(8): 6730-6. 142. Graham A, Furlong S, Owusu K, Margoles L, Franco-Paredes C. Clinical Management of Leprosy Reactions. Infect Dis Clin Pract 2010; 18: 234-7. 143. Hidron A, Vogenthaler N, Santos-Preciado JI, Rodriguez-Morales AJ, Franco-Paredes C, Rassi A. Cardiac Involvement with Parasitic Diseases. Clin Microb Rev 2010; 23 (2): 1-27. 144. Franco-Paredes C, Zeuli J, Hernandez-Ramos I, Santos-Preciado JI. Preserving Idealism in Global Health. Global Health Prom 2010; 17(4): 57-60. 145. Franco-Paredes C. Reconstructing the Past of Poliovirus Eradication. Lancet Infect Dis 2010; 10(10): 660-1. 146. Franco-Paredes C, Ko AI, Aksoy S, Hotez PJ. A New Clinical Section in PLoS Neglected Tropical Diseases: NTD Photo Quiz. PLoS Neglect Trop Dis 2010; 4(9): e760. 147. Tellez I, Franco-Paredes C. Actinomycetoma. PLoS Neglect Trop Dis 2010; 4(9): e772. 148. Franco-Paredes C, Hernandez I, Santos-Preciado JI. Equidad en inmunizaciones en las poblaciones más vulnerables en Mesoamérica: Plan Regional del Sistema Mesoamericano de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S323-32.
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149. Santos-Preciado JI, Rodriguez MH, Franco-Paredes C. Equidad en Salud en America Latina: De la Oficina Panamericana de Salud Pública a la Iniciativa de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S289-94. 150. Rassi A Jr., Rassi A, Franco-Paredes C. A Latin-American woman with palpitations, a right bundle branch block, and an apical aneursym. PLoS Neglect Trop Dis 2011; 5(2):e852. doi: 10.1371/journal.pntd.0000852. 151. Gupta D, Green J, Franco-Paredes C, Lerakis S. Challenges in the Clinical Management of Blood-Culture Negative Endocarditis: the case of Bartonella henselae infection. Am J Med 2011; 124(3):e1-2. doi: 10.1016/j.amjmed.2010.09.022. 152. Franco-Paredes C. Health Equity is not only Healthcare Delivery. Lancet 2011; 377: 1238. 153. Franco-Paredes C, Santos-Preciado JI. Freedom, Justice, and the Neglected Tropical Diseases. PLoS Neglect Trop Dis 2011; 5(8):e1235. 154. Sellers B, Hall P, Cine-Gowdie S, Hays AL, Patel K, Lockhart SR, Franco-Paredes C. Cryptococcus gattii: An Emerging Fungal Pathogen in the Southeastern United States. Am J Med Sci. 2012; 343(6):510-1. doi: 10.1097/MAJ.0b013e3182464bc7. 155. Franco-Paredes C. Poliovirus eradication. Lancet Infect Dis 2012; 12(6):432-3. doi: 10.1016/S1473-3099(12)70102-0. 156. Franco-Paredes C, Ray S. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2012; 125(12):e3-4. doi: 10.1016/j.amjmed.2012.03.002. 157. Franco-Paredes C. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2013: 126(7):e17. doi: 10.1016/j.amjmed.2013.03.001. 158. Franco-Paredes C. Illness and Death in the Universe. Perm J. 2013; 17(4):90-1. 159. Hare A, Franco-Paredes C. Ocular Larva Migrans: A Severe Manifestation of an Unseen Epidemic. Curr Trop Med Rep 2014; 1: 69-73. 160. Franco-Paredes C. Recovering our Human Story. J Cosmology and Philosophy 2014;12: 210-213. 161. Powell DR, Patel S, Franco-Paredes C. Varicella-Zoster virus vasculopathy: The growing association between herpes zoster virus and strokes. Am J Med Sci 2014; 350(3):243-5. 162. Franco-Paredes C. The growing threat of leishmaniasis in travelers. Trav Med Infect Dis 2014; 12(6 Pt A):559-60. doi: 10.1016/j.tmaid.2014.10.020. 163. Franco-Paredes C, Sellers B, Hayes A, Chane T, Patel K, Lockhart S, Marr K. Management of Cryptococcus gattii meningoencephalitis. Lancet Infect Dis 2014; 15(3):348-55. 164. White C, Franco-Paredes C. Leprosy in the 21st Century. Clin Microb Rev 2014; 28(1): 80-94. 165. Carrasco P, Franco-Paredes C, Andrus J, Waller K, Maassen A, Symenouh E, Hafalia G. Inaugural conference of the International Association of Immunization Managers (IAIM), Istanbul Turkey, 3-4 March 2015; Vaccine 2015; 33(33):4047-50. 166. Franco-Paredes C, Rodriguez-Morales AJ. Unsolved matters in leprosy: a descriptive review and call for further research. Ann Clin Microbiol Antimicrob 2016; 15(1):33.
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167. Rodriguez-Morales AJ, Banderia AC, Franco-Paredes C. The expanding spectrum of modes of transmission of Zika virus: a global concern. Ann Clin Microbiol Antimicrob 2016; 15:13. doi: 10.1186/s12941-016-0128-2. 168. Khan MI, Katrinak C, Freeman A, Franco-Paredes C. Enteric Fever and Invasive Nontyphidal Salmonellosis – 9th International Conference on typhoid and Invasive NTS Disease, Bali, Indonesia, April 30-May 3, 2015. Emerg Infect Dis 2016; 22(4): doi: 10.3201/eid2204.151463. 169. Franco-Paredes C, Khan MI, Santos-Preciado JI, Gonzalez-Diaz E, Rodriguez-Morales AJ, Gotuzzo E. Enteric Fever: A Slow Reponse to An Old Plague. PLoS Negl Trop Dis 2016; 10(5):e0004597. doi: 10.1371/journal.pntd.0004597. 170. Rodriguez-Morales AJ, Villamil-Gomez WE, Franco-Paredes C. The arboviral burden of disease caused by co-circulation and co-infection of dengue, chikungunya and Zika in the Americas. Trav Med Infect Dis 2016; 14(3):177-9. doi: 10.1016/j.tmaid.2016.05.004. 171. Alvarado-Socarras JL, Ocampo-Gonzalez M, Vargas Soler JA, Rodriguez-Morales AJ, Franco-Paredes C. Congenital and neonatal Chikungunya in Colombia. J Pediatric Infect Dis Soc. 2016;5(3): e17-20. 172. Franco-Paredes C, Chastain DB, Ezigbo C, Callins KR. Reducing transmission of HIV in the Southeastern US Lancet HIV 2017; 4(3):e101-e102. 173. Franco-Paredes C, Chastain D, Marcos LA, Rodriguez-Morales AJ. Cryptococcal meningoencephalitis in AIDS: When to start antiretroviral therapy? Ann Clin Microbiol Antimicrob 2017; 16:9. 174. Khan MI, Franco-Paredes C, Ochiai RL, Mogasale V, Sushant S. Barriers to typhoid fever vaccine access in endemic countries. Research and Reports in Tropical Medicine; 2017; 8:37-44. 175. Franco-Paredes C, Chastain D, Taylor P, Stocking S, Sellers B. Boar hunting and brucellosis caused by Brucella suis. Trav Med Infect Dis 2017; S1477-8939(17): 30037-6. 176. Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcal Antigen Negative Cryptococcal Meningoencephalitis. Diagn Microbiol Infect Dis 2017; 89(2): 143-145. 177. Chastain DB, Henao-Martinez A, Franco-Paredes C. Opportunistic invasive fungal infections in HIV/AIDS: Cryptococcosis, Histoplasmosis, Coccidioidomycosis and Talaromycosis. Current Infect Dis Rep 2017; 19(10): 36. 178. Chastain DB, Kayla Stover, Franco-Paredes C. Adressing Antiretroviral TherapyAssociated Drug-Drug Interactions in Patients Requiring Treatment for Opportunistic Infections in Low-Income and Resource-Limited Settings. J Clin Pharmacol 2017; 57(11):1387-1399. 179. Franco-Paredes C. The Harmony of Disequilibrium. Permanente J. 2017; 22. doi: 10.712/TPP/17-067. 180. Franco-Paredes C, Henao-Martinez A, Chastain DB. A 27-year-old male with blurry vision, oral and nasal mucosal lesions, and a skin rash. Clin Infect Dis 2018; 181. Henao-Martinez AF, Olague N, Franco-Paredes C. Spontaneous Mycobacterium bolletti skin abscesses —an under recognized zoonosis from raw bovine milk. Trav Med Infect Dis 2018 Jan 29. pii: S1477-8939(18)30003-6. doi: 10.1016/j.tmaid.2018.01.003. PMID: 29477362.
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182. Franco-Paredes C, Henao-Martinez AF, Mathur S, Villamil-Gomez W. A Man Who Harvest Peanuts with Verrucous Lesions in his Right Index Finger. Am J Med Sci 2018; Mar; 355(3):e7. doi: 10.1016/j.amjms.2017.11.010. Epub 2017 Nov 22. No abstract available. PMID: 2954993 183. Henao-Martinez AF, Franco-Paredes C, Palestine A, Montoya G. Symptomatic acute toxoplasmosis in returning travelers. Open Forum Infect Dis 2018;5(4):ofy058. doi: 10.1093/ofid/ofy058. eCollection 2018 Apr. PMID: 29644250. 184. Steele GM, Franco-Paredes C, Chastain DB. Non-infectious causes of fever in adults. Nurse Pract 2018Apr 19; 43(4):38-44. doi: 10.1097/01.NPR.0000531067.65817.7d. 185. Henao-Martinez AF, Chastain DB, Franco-Paredes C, Treatment of cryptococcosis in nonHIV immunocompromised patients. Curr Opin Infect Dis 2018; PMID 29738314. 186. Chastain DB, Sam JI, Steele GM, Lowder LO, Franco-Paredes C. Expanding Spectrum of Toxoplasmosis gondii: Thymoma and Toxoplasmic encephalitis. Open Forum Infect Dis 2018; Jul 7;5(7):ofy163. doi: 10.1093/ofid/ofy163. eCollection 2018 Jul. 187. Kleinschmidt-DeMasters B, Hawkins K, Franco-Paredes C. Non-tubercular mycobacterial spinal cord abscesses in an HIV plus male due M. haemophilum. J Neuropathol Experim Neurol 2018; 77(6): 532-532. 188. Bruner KT, Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcus gattii complex infections in HIV-infected patients, Southeastern United States. Emerg Infect Dis 2018; 24(11): 1998-2002. 189. José A. Suárez, Lolimar Carreño, Alberto E. Paniz-Mondolfi, Francisco J. Marco-Canosa, Héctor Freilij, Jorge A. Riera, Alejandro Risquez, Andrea G. Rodriguez-Morales, Evimar Hernández-Rincón, Jorge Alvarado-Socarras, Gustavo Contreras, Maritza Cabrera, Rosa M. Navas, Fredi Díaz-Quijano, Tamara Rosales, Rosa A. Barbella-Aponte, Wilmer E. VillamilGómez, Marietta Díaz, Yenddy Carrero, Anishmenia Pineda, Nereida Valero-Cedeño, Cesar Cuadra-Sánchez, Yohama Caraballo-Arias, Belkis J. Menoni-Blanco, Giovanni Provenza, Jesús E. Robles, María Triolo-Mieses, Eduardo Savio-Larriera, Sergio Cimerman, Ricardo J. Bello, Carlos Franco-Paredes, Juliana Buitrago, Marlen Martinez-Gutierrez, Julio Maquera-Afaray, Marco A. Solarte-Portilla, Sebastián Hernández-Botero, Krisell Contreras, Jaime A. CardonaOspina, D. Katterine Bonilla-Aldana, Alfonso J. Rodriguez-Morales. Infectious Diseases, Social, Economic and Political Crises, Anthropogenic Disasters and Beyond: Venezuela 2019Implications for public health and travel medicine. Rev Panam Enf Inf 2018; 1(2):73-93. 190. Gharamati A, Rao A, Pecen PE, Henao-Martinez AF, Franco-Paredes C, Montoya JG. Acute Disseminated Toxoplasmosis with Encephalitis. Open Forum Infect Dis 2018; Oct 17; 5 (11):ofy259. doi: 10.1093/ofid/ofy259. 191. Franco-Paredes C, Rodriguez-Morales AJ, Luis A. Marcos, Henao-Martinez AF, VillamilGomez WE, Gotuzzo E, Bonifaz A. Cutaneous Mycobacterial Diseases. Clin Microb Rev 2018; 14; 32(1). pii: e00069-18. doi: 10.1128/CMR.00069-18.
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192. Henao-Martínes AF, Pinto N, Henao San Martin V, Franco-Paredes C, Gharamati A. Successful Treatment of Gonococcal Osteomyelitis with One Week of Intravenous Antibiotic Therapy. Int J STDs HIV 2019; 193. Reno E, Foster G, Franco-Paredes C, Henao-Martinez AF. Fatal fulminant hepatitis A in a US traveler returning from Peru. J Trav Med 2019. 194. Canfield G, C, Mann S, Zimmer S, Franco-Paredes C. A 31-Year-Old Micronesian Man with Shoulder Fungating Mass. Clin Infect Dis 2019; 195. Parra-Henao G, Oliveros H, Hotez PJ, Motoa G, Franco-Paredes C, Henao-Martínez AF. In Search of Congenital Chagas Disease in the Sierra Nevada de Santa Marta, Colombia. Am J Trop Med Hyg. 2019;101(3):482-483. doi: 10.4269/ajtmh.19-0110. PMID: 31264558. 196. Bonilla-Aldana DK, Suárez JA, Franco-Paredes C, Vilcarromero S, Mattar S, GómezMarín JE, Villamil-Gómez WE, Ruíz-Sáenz J, Cardona-Ospina JA, Idarraga-Bedoya SE, GarcíaBustos JJ, Jimenez-Posada EV, Rodríguez-Morales AJ. Brazil burning! What is the potential impact of the Amazon wildfires on vector-borne and zoonotic emerging diseases? - A statement from an international experts meeting. Travel Med Infect Dis. 2019:101474. doi: 10.1016/j.tmaid.2019.101474. 197. Henao-Martinez AF, Archuleta S, Vargas D, Franco-Paredes C. A Latin American patient with a left ventricular pseudoaneurysm presenting with progressive dyspnea and palpitations. Am J Med 2019; doi: 10.1016/j.amjmed.2019.10.006 198. Canfield GS, Henao-Martinez AF, Franco-Paredes C, Zhelnin K, Wyles D, Gardner EM. Corticosteroids for post-transplant Immune reconstitution syndrome in Cryptococcus gattii Meningoencephalitis: Case report and literature review. Open Forum Infect Dis 2019; 6(11): ofz460. Doi: 10.1093/ofid/ofz460. PMID: 31737740. 199. Kon S, Hawkins K, Franco-Paredes C. Intramedullary Spinal Cord Lesions in an Immunocompromised Host due to Mycobacterium Haemophilum. ID Cases 2019; 200. Franco-Paredes C, Rodriguez-Morales AJ, Henao-Rodriguez AJ, Carrasco P, SantosPreciado JI. Vaccination Strategies to prevent paralytic poliomielitis due to cVDPV2. Lancet Infect Dis 2019; 201. Motoa G, Pate A, Franco-Paredes C, Chastain D, Henao-Martinez Aj, Hojat L. Use of procalcitonin to guide discontinuation of antimicrobial therapy in patients with persistent intraabdominal collections: A case series. Case Rep Infect Dis 2019; 202. Murillo-Garcia D, Galindo J, Pinto N, Motoa G Benamu E, Franco-Paredes C, Chastain D, Henao-Martinez AF. Anaerobic bacteremias in left ventricular assist devices and advanced heart failure. Case Rep Infect Dis 2019; 203. Pate A, Franco-Paredes C, Henao-Martinez A. Cryptococcal meningitis: A comparison of clinical features and outcomes by HIV Status. Open Forum Infect Dis 2019; Oct 6 (Suppl 2): S629-S630. PMC6809090. 204. Franco-Paredes, C, Villamil-Gómez Wilmer E., Schultz, J, Henao-Martínez AF, ParraHenao, G, Rassi Jr. A, Rodriguez-Morales AJ, Suarez JA. A Deadly Feast: Elucidating the
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Burden of Orally Acquired Acute Chagas Disease in Latin America - Public Health and Travel Medicine Importance. Trav Med Infect Dis 2020; 205. Reno E, Quan N, Franco-Paredes C, Chastain DB, Chauhan L, Rodriguez-Morales AJ, Henao-Martinez A. Prevention of Yellow Fever in Travelers: An Update. Lancet Infect Dis 2020; 206. Franco-Paredes C, Griselda Montes de Oca Sanchez, Cassandra White. Global Leprosy Status 2020: Still Losing Touch. Ann Acad Med Singapore 2020; 206. Rodriguez-Morales AJ, Gallego V, Escalera-Antezana JP, Mendez CA, Zambrano LI, Franco-Paredes C, Suarez JA, Rodriguez-Enciso HD, Balbin-Ramon GH, Savio-Larriera E, Risquez A, Cimerman S. COVID-19 in Latin America: The implications of the first confirmed case in Brazil. Travel Med Infect Dis 2020; doi: 10.1016/j.tmaid.2020.101613. 207. Rodríguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, FrancoParedes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R, On behalf of the Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19) (www.lancovid.org). Clinical, Laboratory and Imaging Features of COVID-19: A systematic review and metaanalysis. Travel Med Infect Dis 2020;
BOOK CHAPTERS: Franco-Paredes C, Albrecht H. Anisakiasis (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C, Albrecht H. Visceral Larva Migrans (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Franco-Paredes C. The Post-travel Period. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 20092010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-34817. Franco-Paredes C. General Approach to the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7.
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Franco-Paredes C, Santos-Preciado JI. Introduction of Antimicrobial Agents in Poor-Resource Countries: Impact on the Emergence of Resistance. In: Antimicrobial Resistance in Developing Countries. Ed. Byarugaba DK, Sosa A. Springer Science & Business Media, 2010. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012. Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C, Hochberg N. General Approach to the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Hochberg N, Franco-Paredes C. Emerging Infections in Mobile Populations. In: Emerging Infections 9. Ed. Scheld WM, Grayson ML, Hughes JM. American Society of Microbiology Press 2010. ISBN. 978-1-55581-525-7. Franco-Paredes C, Chagas Disease (American Trypanosomiasis). In: Farrar J, Hotez P, Junghanss T, Kang G, Lalloo D, White NJ. Manson’s Tropical Medicine 23rd Edition, Elsevier, London, U.K., 2014. Franco-Paredes C, Keystone J. Fever in the Returned Traveler. In: Empiric, Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2014. Franco-Paredes C. Mycobacterium leprae (Leprosy). In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015 Franco-Paredes C, Albrecht H. Anisikasis In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015. Franco-Paredes C. Illness and Death in the Universe. In: Narrative Medicine Anthology. Ed: Tom Janisse. The Permanente Press, Oakland, California, Portland Oregon,
2016, pp. 23-25. ISBN: 978-0-9770463-4-8. Villamil-Gomez W, Reyes-Escalante M, Franco-Paredes C. Severe and complicated malaria due to Plasmodium vivax. In: Current Topics in Malaria. Ed: Rodriguez-Morales AJ. ISBN 978953-51-2790-1, Print ISBN 978-953-51-2789-5. InTechOpen 2016. Franco-Paredes C. Mycobacterial Infections of the Central Nervous System. In: The Microbiology of the Central Nervous System Infections. Ed. Kon K, Rai M. Elsevier 2018. ISBN 978-0-12-813806-9 Franco-Paredes C. Leprosy. In: Neglected Tropical Diseases. Drug Discovery and Development. Ed: Swinney D, Pollastri. Wiley-VCH Verlag GmbH & Co. KGaA, 2019. Franco-Paredes C, Henao-Martinez AJ. Legal Perspectives in Travel Medicine. In: Eds: Kozarksy P, Weinberg M. Yellow Book: Health Information for Travelers 2019-2020, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Prevención de la transmisión. In: Guerrero MI, Hernández CA y Rodríguez G Editores La lepra: una enfermedad vigente. Centro Dermatológico Federico Lleras Acosta Bogotá DC, Colombia. Panamericana Formas e Impresos. 2019. p. 309-322.
31

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 33 of 35

FORMAL TEACHING Medical Student Teaching 2001 - 2002 Clinical Methods, Emory University School of Medicine

2001 - 2002 Clinical Instructor Harvey Cardiology Course, Emory University School of Medicine

2001 - 2002 Problem-Based Learning for Second year Medical Students, EUSM

2005 - 2011 Clinical Methods Preceptor, ECLH

2006 - 2008 Medical Spanish - Instructor for M2, EUSM

2006 - 2007 Directed Study on Social Determinants of Infectious Diseases for M2 students

(Lindsay Margolis and Jean Bendik), EUSM

2007 - 2011 Instructor - Global Health for M2 Students, EUSM

2007 - 2008 Presentation-Case Discussion – Social Determinants of Diseases – Coordinated

by Dr. Bill Eley – Emory School of Medicine New Curriculum.

2018-

Small Group: Parasitic Diseases, Microbiology Course for First Year Medical

Students, University of Colorado, Anschutz Medical Center.

2019-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz

Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

2019-

Class Global Health and Underserved Populations of the New SOM CU

Curriculum. Course Co-Director. Pilot Class (Jan 6-Jan 17, 2020).

2020-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz

Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

Graduate Program:

Training programs

2006-2011 Professor - GH511 (Global Health 511) International Infectious Diseases

Prevention and Control, Rollins School of Public Health

2009-2011 Professor – GH500 D – Key Issues in Global Health, Career MPH Program

2006-2011 Thesis Advisor to students Global Health Track – Hubert Department of Global

Health, Rollins School of Public Health of Emory University

2008-2011 Coordinator International Exchange between Rollins School of Public Health and

National Institute of Public Health, Cuernavaca, Mexico – Supported by the

Global Health Institute of Emory University

Residency and Fellowship Program:

2004-2011 Resident Report – Noon Conferences Emory Crawford Long Hospital and Grady

Memorial Hospital

2004-2011 Didactic Lectures on Parasitic Diseases and Non-tuberculous mycobacterial

diseases for Internal Medicine Residents and Infectious Disease Fellows

2005-2008 Coordinator Journal Club Infectious Disease Division

2005-2011 Travel Medicine Elective, Internal Medicine Residents (2 internal residents per

month)

2005

Grand Rounds – EUH - Department of Medicine: “Travel Medicine”

2006

Grand Rounds – ECLH – Department of Medicine: “Malaria”

2008

Grand Rounds - ECLH – Department of Medicine: “Leprosy”

2008-2011 Journal Club Coordinator, Internal Medicine Residency Program – ECLH

32

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 34 of 35

2009

Grand Rounds - EUH – Department of Medicine: “Leprosy a Modern Perspective

of an Ancient Disease”

2009

Grand Rounds – Pulmonary and Critical Care Division – Neglected Tropical

Diseases of the Respiratory Tract, June 16, 2009

2017

Grand Rounds – Leprosy, University of Colorado, Anschutz Medical Center,

Division of Infectious Diseases, December 2017

2017

Grand Rounds – Infections associated with Secondary Antiphospholid Syndrome,

University of Colorado, Anschutz Medical Center, Division of Rheumatology,

2018

Didactic Session – Travel Medicine (Pretravel and Postravel) Infectious Diseases

Fellowship Anschutz Medical Center, Division of Infectious Diseases

2017

Infectious Diseases Fellows Clinic, University of Colorado, Anschutz Medical

Center, IDPG.

2019

Invited Speaker: Travel Medicine, Pretravel/Postravel Care, Physician Assistant

Program, September 12, 2019, University of Colorado, Anschutz Medical Center

Other categories:

2000-2002 Physician Assistant Supervision during Fellowship/Junior Faculty, Emory

University

2004-2007 Mentoring of four College Students to enter into Medical School (Emory,

Southern University, and Dartmouth):

Lindsay Margolis 2004-Emory University

Michael Woodworth 2005 – Emory University

Peter Manyang 2007 – Southern University

Padraic Chisholm 2007 – Southern University/Emory University

2009-2011 Project Leader. Partnership – Emory Global Health Institute – University-wide -

Emory Travel Well Clinic and is titled Hansen’s disease in the state of Georgia: A

Modern Reassessment of an Ancient

Disease”. http://www.globalhealth.emory.edu/fundingOpportunities/projectideas.

php. Students: 5 MPH students (RN/MPH, MD/MPH)

2017-

Infectious Diseases Fellowship Program, University of Colorado, Anschutz

Medical Center. Teaching activities, Inpatient and outpatient (ID Fellows Weekly

Clinic)

2019-

Infectious Diseases Fellowship Program Director, University of Colorado, Aurora

Colorado

Supervisory Teaching: Ph.D. students directly supervised: Global Health, Rollins School of Public Health - PhD Task Force Member – 2007-2009 Residency Program: Emory University: Internal Medicine Residents and Infectious Disease Fellows Supervision – Inpatient Months – 3-4 months per year on Grady Wards. I participated in the presentation and discussion of clinical cases, and discussion of peer-reviewed journal with medical students, residents, and fellows. Overall evaluations: Outstanding Teacher. (Anna Von 2005-2006; Seth Cohen 2008, Susana Castrejon 2007; Lindsay Margoles 2007-2008; Jean Bendik 2006-2008; Meredith Holtz 2007-2008) University of Colorado, Anschutz Medical Center (since June 2017- present). Case discussion in infectious diseases during clinical rounds inpatient services (ID Gold, ID Blue, ID Orthopedics).

33

Case 1:19-cv-01593-JEB Document 61-12 Filed 03/31/20 Page 35 of 35 2004-2009 Thesis advisor – MPH Students – Hubert Department of Global Health – Concentration Infectious Diseases: Brenda Thompson 2004; Katrina Hancy 2004; Trina Smith 2006; Melissa Furtado 2007-2008; Oidda Museru 2008-2009; Hema Datwani 2010; Ruth Moro 2010; Talia Quandelacy 2010 2015 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins Schoolf of Public Health, Emory University, Atlanta GA 2017 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins School of Public Health, Emory University, Atlanta GA 2019 - Project Mentorship – Diffuse lepromatous leprosy. Undergraduate Student, University of Colorado, Boulder. Mikali Ogbasselassie. Project was carried out in Collaboration with the Dermatology Center of the Hospital General de Mexico. Poster presentation by Mikali Ogbasselassie September 22, 2019, UMBC, Baltimore, Maryland.
34

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 1 of 33
EXHIBIT
11

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 2 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro HEREDIA MONS et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No.: 1:19-cv-01593

)

Kevin K. McALEENAN et al.

)

)

Defendants/Respondents.

)

__________________________________________)

DECLARATION OF DR. PETER SCHARF I, Dr. Peter Scharf, declare under penalty of perjury under the laws of the United States as follows:     I. Overview 1. The instant expert declaration,1 executed after reviewing evidence-based materials regarding infectious disease contagion in correctional and detention facilities, concludes that the risks of COVID-19 infection are so substantial in facilities where Heredia Mons class members are detained, (particularly Louisiana centers), that release is required to ensure their protection from infection by the COVID-19 virus and its grave aftermaths. II. Professional background 2. My name is Dr. Peter Scharf. I am currently employed at the LSU School of Public Health as Professor of Public Health.2 I received my doctorate in l973 from Harvard University. Since then, I have pursued a career in criminal justice research, practice, and teaching at the University of California, Seattle University, American University, the University of

1 The contributions of Elizabeth Kitty and Carolyn Lilly are gratefully acknowledged. 2 Curriculum Vitae of Dr. Peter Scharf attached as Appendix A.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 3 of 33
New Orleans, Texas State University, Tulane University School of Public Health and Tropical Medicine, and currently, at the Louisiana State University School of Public Health.   3. I have experience working with (and publishing results about) several nationally visible cases including the Chicago Police Department Burge Case and the Crown Heights Civil Disorder Report, which directly involved the use of foreseeable risk concepts and ideas. Additionally, I have written about policing ethical standards and have authored a book on the use of deadly force, “The Badge and the Bullet,” which has been regarded by reviewers as a standard in the field, as well as seven other books and dozens of book chapters and journal articles.    4. At the National Police Foundation in Washington, D.C., I supervised the development of a police foreseeable risk management and prediction system (RAMS); supervised a national community policing project; initiated a project that integrated correctional and police policies; and helped assess the Crown Heights Civil Disorders. I founded the Center for Society, Law and Justice (“CSLJ”) at the University of New Orleans in l995. CSLJ evolved into a nationally prominent, criminal justice, technical-assistance provider supported by eight different cooperative agreements related to cyber-crime, ethics, correctional policies, technology integration, assessment of new technologies, performance metrics, and criminal justice integrity policies.    5. I was employed at Tulane University School of Public Health and Tropical Medicine as a Research Professor of Public Health and Tropical Medicine in the Global Systems and Development Department from June 2008 to August 2014. I conducted research on issues related to juvenile correctional reform (TYC), prison rape (PREA), homicide trends, and

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 4 of 33
assessments of efforts to avert violent crime trends through prevention and early intervention. I was named the Undergraduate Public Health Teacher of the Year in 2012 and 2013. Previously I was the Foundations of Excellence Award Winner at Texas State University (2008).    6. I am currently (since August 2014) a Professor of Public Health at the LSU School of Public Health. I have received funding from the United States Department of Justice for three major correctional initiatives working in cooperation with the Louisiana Department of Public Safety and Corrections regarding high-risk offenders in New Orleans, cooccurring disorders (project was winner of ACA innovation award) and a statewide recidivism study. I was the keynote speaker at the Educational Testing Service Conference in December 2016 in San Francisco regarding Education and Corrections. I teach courses at LSU School of Public Health related to public health perspectives related to Ethics, Violence, Foundations of Public Health, and a Doctoral Public Health Research seminar.   7. I serve as facilitator and analyst for the public safety team of New Orleans Mayor LaToya Cantrell’s public safety working group.  I conduct research and facilitate meetings with criminal justice leaders chosen by then Mayor Elect LaToya Cantrell, and I co-authored much of the final recommendations regarding the status of the New Orleans Police Department (“NOPD”), facilitated meetings with experts on the sub-committee team, and helped  develop NOPD leadership key performance indicators.   8. I testified before the U.S. House Judiciary Crime Subcommittee on four occasions (2007, 2012, 2014, and 2015) regarding violent-crime prevention.   I have had expert testimony accepted in U.S. District Court in three l983 (42) cases and have written expert reports related to the issue of foreseeability and crime in three recent cases (Hunter, Stuart,

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 5 of 33
Williams and Grant County jail). I have been qualified to present testimony in three 42 U.S.C. Section 1983 cases.  9. I authored a report which contributed to a favorable opinion by Seventh Circuit Judge Richard Posner in a case (Wittmer vs. Peters) regarding correctional officer hiring policies. I have testified or provided information, depositions, or reports on more than a dozen legal cases regarding correctional policies. I have worked for the Louisiana Department of Public Safety & Corrections regarding the assessment of five different cooperative agreements regarding recidivism reduction, co-occurring disorders, and statewide correctional policy. III. Case Issues 10. The present case involves a question as to whether the New Orleans Immigration and Customs Enforcement (“ICE”) Field Office should use its authority and discretion to release detained asylum-seekers in order to protect them from health risks caused by potential and actual exposure to the novel Coronavirus (COVID-19). 11. In preparing this declaration, I reviewed witness declarations, ICE procedures regarding parole, ICE COVID-19 guidance, evidence-based research regarding infections in corrections, and statistics related to parole out of the New Orleans ICE Field Office. IV. Factual and Evidentiary Basis for Expert Declaration 12. Under the authority of the New Orleans ICE Field Office, approximately 8,000 (8066) immigrants are detained in often former or newly constructed correctional facilities and managed by private correctional contractors, including GEO, CoreCivic, and La Salle

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 6 of 33
Corrections:3 Below is a list of facilities where detained immigrants are held under the custody of the New Orleans ICE Field Office along with an estimate of their available capacity.
a. Adams County Detention Center Natchez, MS – 2,232; b. Allen Parish Detention – 200; c. Bossier Parish Medium Security Facility – 240; d. Catahoula Correctional Center – 835; e. Etowah County Detention Center – 360; f. Jackson Parish Correctional Center – 1,000; g. LaSalle ICE Processing Center –1,200; h. Natchitoches Parish Detention Center – 563; i. Pine Prairie ICE Processing Center – 1,094; j. Richwood Correctional Center – 1,000; k. River Correctional Center – 500; l. South Louisiana ICE Processing Center – 1,000; m. Tallahatchie County Correctional Facility – 575; and n. Winn Correctional Center – 1,500.
3 Hannah Gaber, Under Trump, private prisons are cashing in on ICE detainees, USA TODAY (Dec. 20, 2019), available at: https://www.usatoday.com/in-depth/news/nation/2019/12/19/ice-detention-privateprisons-expands-under-trump-administration/4393366002/ (accessed March 29, 2020).

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 7 of 33

13. Parole probabilities are widely variable in the New Orleans ICE Field Office centers as suggested by the government’s data from Defendants’ March 2020 report4 below:

Facility

Grant/Total (Grant Rate %)

 ACDC  JACKSON  WINN  RICHWOOD  BASILE  RIVER  PINE PRAIRIE  LA SALLE  CATAHOULA  ALLEN PARISH

7/55 4/47 47/145 14/40 14/75 13/38 5/12 0/4 0/3 0/1

(12%) (30%) (32%) (35%) (19%) (34%) (41%) (0%) (0%) (0%)

14. It should be noted that in 2016 about 75 percent of parole applications were successful. In 2018, fewer than 2 percent were granted. In 2020, successful applications began to rise as indicated above.5 It should be noted that there is missing data in explaining differences in ICE detention parole outcomes, particularly in describing regional and detention center patterns of ICE risk assessment data.
15. The private corrections ICE contract detention vendors who manage ICE detention centers in the region work on contracts that retain them at fixed ratesapproximately $50.00 per day per detainee (more than twice the reimbursement rate paid to Louisiana parishes to house Louisiana Department of Public Safety & Corrections inmates). The facilities are crowded and staffed by employees who are paid from about $11.00 to $18.00 per hour. Many of the facilities are located in Central and Western Louisiana and are characterized by limited vocational, educational, and healthcare resources.

4 Data received from SPLC counsel on March 27, 2020, taken from Defendants’ most recent report. 5 Data estimates from CBS News, Plaintiffs’ Complaint and as provided by SPLC counsel.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 8 of 33
16. The research related to infectious disease and correctional facilities has built an evidence base regarding the epidemiological risks of allowing infectious disease processes to spread in the confined space of detention centers.
17. Research based upon the experience of correctional facilities faced with a range of infections suggests: a. The physical plant of most correctional facilities, including detention facilities is conducive to the spread of infectious disease.6 b. Forced correctional “sociation” (eating, counts, recreation, searches, holding cells, etc.) are often mechanisms of contagion7 along with risks of violence and disorder. c. Correctional Officers, staff, and visitors present inadvertent risks of infection to inmates.8 d. Commonly used mechanisms to control infection are difficult to implement given the constraints of almost all correctional facilities.9 e. Residents of correctional and detention centers have been found to present preconditions for prolonged and severe COVID-19 illness or death compared with other populations.10 f. Research using proven scientific methods related to detention centers has identified several documented underlying conditions among detained persons, and these comorbidities make detention center detainees especially vulnerable to severe COVID-19 disease and death.
6 Lauren-Brooke Eisen, How Coronavirus Could Affect U.S. Jails and Prisons, Brennan Center For Justice (March 13, 2020), available at: https://www.brennancenter.org/our-work/analysis-opinion/howcoronavirus-could-affect-us-jails-and-prisons (accessed March 29, 2020). 7 Scharf P. and Holt, N., “Empty Bars” Prison Journal, 1983. 8 American Correctional Association, http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Healthcare_Professional_Interest_Section/Copy_of _Coronavirus_COVID.aspx (accessed March 29, 2020). 9 See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (accessed March 29, 2020). 10 Lea Skene and Matt Sledge, Visits suspended at Louisiana prisons as advocates warn of spreading virus behind bars, THE ADVOCATE (March 13, 2020), available at: https://www.theadvocate.com/baton_rouge/news/coronavirus/article_fbdc7af8-64a4-11ea-bb780b1346e36acc.html (accessed March 29, 2020).

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 9 of 33
g. Epidemiological research suggests the potential for increased mortality and prolonged mortality in correctional facilities compared with less dense and controlled environments.11
h. Louisiana has the highest per capita rate of COVID-19 incidence in the world.12 i. The areas in which the Louisiana ICE Detention Centers are located are
characterized by low medical access and public citizen health literacy.13 j. The managers hired by the region’s ICE contractors (The GEO Group and LaSalle
Corrections) have little training to cope with infectious disease.14 18. Several recognized health authorities have initiated “warnings” to correctional and
detention managers related to the health risks in correctional and detention facilities. a. The Brennan Center on March 13, 2020 outlined15 from the point of view of correctional research that the risks of widespread risks of COVID-19 infection in correctional and detention centers were substantial: i. Prisons and Detention Centers are often unhygienic environments. ii. Special populations (e.g. older inmates) within detection center and correctional environments have unique risks to avoid risks of infection and severe medical aftermaths following COVID-19 infection. iii. Separation of correctional and State healthcare systems pose unique risks to inmates and detainees. iv. Action strategies to reduce COVID-19 risks to inmates and detainees include release of individuals who are at risk. v. Comprehensive agency planning to reduce risks.
11 See footnote 5, supra. 12 See Andrew Capps, Louisiana experiences fastest COVID-19 case increase in the world in first few weeks, LAFAYETTE DAILY ADVERTISER (March 24, 2020), available at: https://www.theadvertiser.com/story/news/local/2020/03/24/covid-19-cases-louisiana-coronavirusspreading-faster-than-anywhere-world/2907504001/ (accessed March 29, 2020). See also Louisiana Governor’s Office of Homeland Security and Emergency Preparedness, COVID-19 Louisiana Case Info, https://gov.louisiana.gov/assets/docs/covid/govCV19Brief-2.pdf.. 13 Louisiana Public Health Briefing, 2019. 14 Site Visit with Geo regarding program effectiveness, October 2016. 15 See footnote 5, supra.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 10 of 33
b. The Centers for Disease Control and Prevention (CDC) on March 23, 2020, initiated a Guidance statement16 to Correctional and Detention facilities regarding the risks of COVID-19 infection in these settings suggesting: i. Residents live in settings where people are forced to eat, sleep, and have recreation in common areas. ii. Infection risks for COVID-19 infection include unmonitored staff entrance, visitors, health worker contact, etc. iii. Detention Centers with populations from all over the world present unique risks of COVID-19 infection. iv. There are limited opportunities for COVID-19 infection in many correctional facilities. v. Many residents in detention and correctional facilities have existing conditions that may exacerbate infections that occur.
19. ICE guidance defines standards for healthcare and wellness, applicable to contract detention centers, which offer some protections.17 However, the health services described fall short of needs anticipated in the advent of a COVID-19 infection affecting ICE contract detention centers in the New Orleans ICE Field Office region, particularly Louisiana.
V. Expert Opinions
A. First Opinion: There is an obvious, foreseeable risk of COVID-19 and the health threats it poses to people detained in these ICE facilities.
20. The current widespread outbreak of COVID-19 in the region, particularly Louisiana, combined with the unsanitary conditions in ICE detention centers, may result in a threat of irreparable harm, such as serious, prolonged illness and death, to the health and safety of detained individuals.
16 See footnote 8, supra. 17 https://www.ice.gov/doclib/detention-standards/2011/4-3.pdf

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 11 of 33
21. The first U.S. case of COVID-19 was reported on January 20, 2020 in Washington State, which provided New Orleans ICE authorities with more than five weeks to put into place a prevention and control plan for COVID-19.18
22. In addition, past influenza outbreaks within the U.S. and other countries showcase the vulnerability of prison populations to disease and virus outbreaks. Thus, demonstrating a well-established and commonly known need for detention centers to take extra precautions to protect detained persons from disease.19
B. Second Opinion: The characteristics of the detention centers present a risk of serious illness and death from the contraction and transmission of COVID-19, including the fact that Louisiana has the highest rate per capita of infections, and that the populations inside these facilities have a heightened risk due to the density of population, heavy use, and unsanitary conditions. In addition, staff and in some situations, newly detained persons, who have been outside of the detention center, may serve as vectors for spreading the virus to the existing detained population who have limited ability to take necessary precautions.
23. Louisiana reported its first case of COVID-19 on March 9, 2020. Since then, the State has experienced among the worst outbreaks in the country and, as of March 27, 2020, Louisiana had 2,746 cases of novel coronavirus statewide including 119 deaths, with a corresponding case fatality rate of 4.3 percent.20 Per capita, this is one of the highest COVID-19 incidence rates in the U.S., a fact which further emphasizes the significant threat of serious illness or death that the disease poses to the public, and especially to vulnerable populations such as people who are held in detainment facilities.
18 Michelle Holshue, Michelle, First case of 2019 Novel Coronavirus in the United States, N. ENGL. J. MED.. (2020). 19 Stuart Kinner, Prisons and custodial settings are part of comprehensive response to COVID 19, The Lancet (March 17, 2020) 20 https://wgno.com/news/health/coronavirus/louisiana-covid-19-cases-jump-to-2746-119-deaths/

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24. Government-advised precautionary steps from the CDC to prevent the spread of COVID19 including “know how it spreads,” “avoid being exposed to this virus,” and “clean your hands often” are impossible for detained persons to follow within a carceral setting. There is little evidence that detention center management identified and implemented effective strategies to implement these precautionary steps.21
25. The ubiquitous warnings about COVID-19 infections and the tragic aftermaths that are foreseeable in confined environments with limited healthcare resources and public health training, should have raised concerns among DHS and ICE leaders and contract detection center managers.
26. Confined settings may have a higher reproduction number for the coronavirus. Detention centers, like early outbreaks in nursing homes and on cruise ships, are characterized by significant numbers of people in small, confined spaces. Early studies suggest22 that the reproduction numbers of COVID-19 in confined settings are significantly higher than community-level transmission, thus suggesting detention centers need to take extra precautions to ensure the safety of the detained population, staff and visitors.
C. Third Opinion: Contract detention center management and ICE-run detention facilities do not have the adequate medical care and cannot ensure reasonable safety, to the detained population, resulting in an increased vulnerability to COVID19 impacts. In addition, detained persons with underlying chronic conditions who experience an even greater risk of the consequences of COVID-19 are not segmented from the rest of the detained population.
21 See footnote 8, supra. 22 Kenji Mizumoto at al., Estimating the asymptomatic proportion of coronavirus disease 2019 (COVID19) cases on board the Diamond Cruise ship, Yokahama, Japan (2020), available at: https://www.eurosurveillance.org/content/10.2807/1560-7917.ES.2020.25.10.2000180

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 13 of 33
27. The 2011 Operations Manual ICE Performance-Based National Detention Standards (PBNDS) and the 2019 National Detention Standards Update (NDS)23 define the standards for ICE detention centers. In both, standards detail the need for an emergency protocol, including a process for preventing infectious diseases and providing necessary medical care for detainees that are tailored to the detainees’ underlying medical conditions. Thus, not developing and enacting an emergency plan embodies a failure to fulfill the standards set forth by ICE for its detention centers.24
28. According to PBDNS, within two weeks of arrival at a detention center, all detainees should receive a comprehensive health assessment. This assessment identifies underlying risks, including chronic health challenges both physical and mental. Thus, the medical staff at ICE detention centers would be able to identify detainees who are more vulnerable to COVID-19 and more at risk of death.
29. There are existing standards and precedents for how detention centers decrease the negative impacts within detention centers of diseases like tuberculosis that have a high transmission rate. For example, under PBDNS standards, Tuberculosis (TB) Management includes working with state and local health departments and keeping detainees with suspected TB in isolated rooms with negative pressure ventilation. This suggests that detention centers are already familiar with a protocol that could have been enacted for COVID-19.25
30. From the information and documents that I have reviewed, the New Orleans Field Office does not appear to have implemented a protocol to deal with the COVID-19 pandemic.
23 See https://www.ice.gov/detention-standards/2011 and https://www.ice.gov/detentionstandards/2019#wcm-survey-target-id 24 Id. 25 Assumes tier with Randomized Controlled Trial procedures as described in www.CrimeSolutions.Gov.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 14 of 33
D. Fourth Opinion: There are foreseeable risks in terms of further outbreak and negative health impacts of COVID-19 on the detained population, unless efforts to release people are immediately undertaken.
31. The best epidemiological models available, based on valid scientific research, suggest widespread COVID-19 contagion in this region’s ICE facilities, which will lead to broad contagion unless release efforts are initiated in a rapid timeframe.
32. Regional practices involving the outsourcing of detention and jail services to contractors provide disincentives to release detainees even in the face of imminent and documented medical risks to people held in the custody of ICE subcontractors in the New Orleans ICE Field Office region.
33. The risks of this practice of outsourcing are widely known and should have been known by DHS and ICE leaders who had a duty to supervise sub-contractors in terms of their management of health risks and healthcare response duties.
34. The local community benefits of contract ICE detention centers, in this region with few resources, appear to result in political dynamics, along with national political sentiment, that likely contributed to low rates of ICE parole grants.
35. The reality that this region’s ICE facilities are located in remote or rural areas with limited resources and that medical resources proximate to the relevant ICE detention facilities leads to the conclusion that, were a COVID-19 infection to occur, widespread, long-term morbidity and mortality are more probable than not people detained by the New Orleans ICE Field Office.
E. Summary Opinion: Despite explicit guidelines and standards mandating proactive efforts to reduce disease in the facilities, the ICE has failed to respond to obvious warnings, risk factors and direct information to reduce the risks COVID-19 posed to people detained in their custody. The risks of irreparable harm posed to these individuals, including the more probable than not consequence of long-term illness

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 15 of 33
and death, is in my opinion substantial and avoidable if appropriate release mechanisms are adopted in a rapid timeframe.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 29th day of March at New Orleans, Louisiana, United States.
_______________________________________ Dr. Peter Scharf Louisiana State University Health Sciences Center 2020 Gravier Street, 3rd Floor New Orleans, Louisiana pschar@lsuhsc.edu (504) 509-9800

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 16 of 33
Appendix A – Curriculum Vitae of Dr. Peter Scharf
Profile
• Nationally recognized leader in corrections, criminal justice research, field
assessments, performance metrics, police deadly force training, and public health aspects of crime
• Founding Director of the Center for Society, Law and Justice • Noted media interviewee on topics ranging from education for at risk youth, ethics and
integrity, law enforcement and forensics, use of force, criminal violence and criminal justice technologies
• Certified as an expert witness in U.S. District Court in the police use of force • Demonstrated success in multi-million-dollar grant funding and execution • Worked with White House (Stuart Baker) assessment of Hurricane Katrina criminal
justice aftermath
• Testified before House Judiciary Crime Sub-Committee Four times( 2007; 2012; 2013;
2015)
• Foundations of Excellence Award Winner at Texas State University (2008) • Named President N.O. Schweitzer Fellowship Board of Directors • Winner of Tulane Public Health Outstanding Teaching Award (2012 and 2013) • Serve as facilitator and analyst for the Public Safety Transition team of New Orleans
Mayor LaToya Cantrell.
• Helped Organized and facilitated a national Opioid Conference in New Orleans (2019) • Presented a series of lecture on violent crime at the University of Alabama Medical
School
Dr. Peter Scharf Institute of Public Health and Justice
LSU School of Public Health 504-509-9800 (cell) 504-568-5703(office) Pschar@lsuhsc.edu

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 17 of 33
Career Overview Dr. Peter Scharf is a nationally recognized leader in public health-focused criminology with
a specialized focus upon violent gun crimes. He was an invited speaker to the Nobel Public Service Seminar in Stockholm, Sweden. He has innovated new undergraduate course offerings related to public health perspectives related to violence and change processes related to public health. Multiple national media have interviewed him about his expertise related to violent crime. From 1992-95, Dr. Scharf served as Director of Training and Technical Assistance for the Police Foundation in Washington, DC. He assumed responsibility for the funding and management of a celebrated risk management technology and led a training and technical assistance unit that was dedicated to improving law enforcement practices in civil disorders, diversity training, ethics, the use of force, community policing and effective management practices. He participated in two major investigations: the Chicago Police Department Burge Torture Case, and the New York City Crown Heights Disorder Investigation. He was the founder of the Center for Society, Law and Justice (CSLJ) at the University of New Orleans. He led the creation of one of the highest quality criminal justice technology training, research, and implementation entities in the United States. Additionally, Dr. Scharf played an integral role in attracting several multi-million-dollar grants to CSLJ and its partner, the University of New Orleans. The Center for Society, Law and Justice won national recognition for its innovative programs supporting law enforcement and correctional professionals. From 19982008, the Center managed a $2.8 million-dollar national Bureau of Justice (DOJ) Assistance Cooperative Agreement to assist national law enforcement in implementing computer technologies. CSLJ completed several major cooperative agreements with DOJ/ODP including a national “Managing Law Enforcement Integrity” project, the “Art of Performance Measures”, a multi-million-dollar project related to Forensic Digital investigations, and a PSN project, which focused upon research related to the targeting of guns in high crime neighborhoods.
While at Texas State University and later Tulane University, he managed a PREA risk management project designed to identify and manage the risk of rape in prisons. He was the 2008 Foundations of Excellence Award Winner at Texas State University. While at Tulane University, Dr. Scharf was the named the Outstanding Public Health Teacher in both 2012 and 2013.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 18 of 33
Dr. Scharf testified four times before the House Judiciary Committee regarding murder trends and worked with Stuart Baker of the White House on an assessment of the federal Response to Hurricane Katrina. He is the author of several books, including Readings in Moral Education (1978), Growing Up Moral (1979), Towards a Just Correctional System (1980), Badge and the Bullet (1983), A Guide to Computer-Age Parenting (1984), Understanding the Computer-Age (1988), Law Enforcement Integrity: The state of the art (2006), and the Justice Information Sharing Performance Measures Guide (2008), each of which has had a strong impact on educational, public health and criminal justice practice. He has appeared in a number of national media entities in the past five years including NPR (6), NBC Evening News (3), PBS (3), Nightline, BBC (2) and CNN (3) and has been interviewed by the New York Times (4), Washington Post (2), and Wall Street Journal, Houston Chronicle (2), USA Today (6) and other national news entities. He was both treasurer and secretary of the FBI Citizen’s Academy Alumni Association since 2004. He was asked to testify four times before the House of Representatives (5/10/07; 6/24/12, 1/23/13 and 7/22/15.)
He recently was named a facilitator and analyst for the Public Safety (N.O.P.D. subcommittee) developing policies for Mayor Latoya Cantrell. Dr. Scharf Facilitates meetings with City Leaders charged with formulating law enforcement policy. He recently helped organized and helped facilitate a national Opioid Crisis conference in New Orleans (October 31, 2019) and will be presenting a series of lectures at the University of Alabama Medical School in November 2019.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 19 of 33
Professional Experience: University Employment
• 1992-1995: Police Foundation, Washington, D.C.: Director of Technology and Technical
Assistance: Managed and developed major service lines for leading police identified nonprofit organization in US. Directed community-based police training programs. Organized contacts with funding and other governmental agencies. Directed national technology, technical assistance, and training programs.
• 1995-2006: University of New Orleans, New Orleans, LA: Director, Center for Society,
Law and Justice: Directed funding, training, and research efforts of consortium working with major New Orleans and national law enforcement and correctional entities.
• 2006-2008: Texas State University, Research Professor Department of Criminal Justice:
Executive Director, Center for Society, Law and Justice at Texas State: Directed all operations of the Center, working with Texas State Criminal Justice faculty and U.S. Department of Justice.
• 2008-2014 Tulane University Research Professor of Public Health and Tropical Medicine,
Global Health Systems Department: Conducted research related to correctional reentry and public health, homicide trends and assessments of efforts to avert violent crime trends through prevention and early intervention.
• 2014-Current: Professor of Public Health, Institute of Public Health and Justice, LSU
School of Public Health: Conduct research regarding nationally-funded projects regarding jail reduction (MacArthur), status of 17-year-old offenders, co-occurring disorders, and evidence-based reentry.
Consulting:
• 1970 to 1979: Harvard University: Co-Project Director, Just Community Prison Project.
Managed innovative correctional rehabilitation program.
• 1973-1976: Biological Sciences Curriculum Study, Policy Board, Human Sciences,
Author, Rules (Human Sciences Curriculum).

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• 1976-1980: CBS Publishing: Acquisitions Editor, Trade and Education Titles: Acquired
human development, criminal, education justice and trade book manuscripts.
• 1979-1982: Public Policy Research Organization: Director, Police Uses of Deadly Force
Project. Directed use of deadly force research program.
• 1980-1986: Mc Graw Hill Book Company: Senior Acquisitions Editor for Computer-Based
Educational and Training Programs. Acquired and developed major computer-based training projects.
• 1986-1988: Institute for Scientific Information: Project Director. Director and author of
major tool-based middle school curriculum: Micro Works.
• 1989-1991: Wasatch Education Systems: National Manager for Criminal Justice Technical
Products. Managed market and product efforts for highly profitable computer market segment.
• 1994-Present: Civigenics: Founding Partner. Wrote Venture Plan document and developed
drug treatment mode for company with more than $80 million dollars in annual recurring revenue and sites in 30 states.
• 1996-1999: Simon and Schuster/Viacom-Invest: Consultant. Facilitated development of
web and criminal justice technologies and marketing of adult education materials.
• 1997-Present: Digital Concepts, Inc. (DCI): Partner. Wrote venture plan in a high-tech
company in late venture stage.
• 1999-2000: Institute for Forensics (Seattle, WA): Consultant. Helped design new web-
based technology to analyze homicide cases.
• 2001: California Peace Officers and Standards: Consultant related to values and policing.
• 2002-2003: State of Washington: Design of new parole risk assessment technology.

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• 2003-2005: Sierra Systems: Consultant for Criminal Justice Programs.
• 2003: FBI Citizen’s Academy Alumni Association: Secretary, Treasurer, Board Member.
• 2004: Achieve3000: Curriculum Subject Matter Expert for on-line moral curriculum
development.
• 2004-2007: International Association of Chiefs of Police Community Policing Consultant:
SMART Program-Juvenile Services Program.
• 2005-2006: White House (Stuart Baker): Assessment of federal response to Hurricane
Katrina.
• 2007-2012: International Association of Chiefs of Police Corrections:
Consultant on Law Enforcement Information Sharing.
• 2007-2008: Eckerd Youth Services: Consultant on Performance Measures Implementation.
• 2007: Developed Testimony for House Judiciary Committee-Crime Subcommittee-Bobby
Scott, Chair.
• 2008-2010: Texas Youth Commission Consultant on the evaluation of innovative
programming.
• 2010: Named to New Orleans Mayor Landrieu’s Criminal Justice Transition Team.
• 2011- 2012: Consultant to AMI kids (Tampa FLA).
• 2012-2013: Consultant to Hilliard Heintze (Chicago, Ill.)

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• 2012-4- Consultant to SAFY of America, (Delphos, Ohio)

• 2015-Developed testimony for Youth Violence Congressional Briefing
• 2016-17-Educational Testing Service Developed assessment strategy for longitudinal
HiSet prison research.

• 2019-Named National Communications Director for the National Prevention Science
Collaborative

2017-19: Facilitator and analyst for the Public Transition team/Working Group of New Orleans Mayor LaToya Cantrell. I conduct research and facilitate meetings with criminal justice leaders chosen by the Mayor Elect La Toya Cantrell and was named at prime facilitator for the NOPD sub-committee.
Consultant for the following Educational Police and Criminal Justice Agencies: White House Homeland Security Council, Seattle Police Department, FBI Academy, Mason County Sheriffs, King County Police, New York State Criminal Justice, Delaware River, Oregon State Police, AF, Austin Police, Gretna Police Department, Detroit Police Department, and IACP, CAL POST, LAPD, JPSO, Recovery School District, among others.

Education 1963 to 1967
1970 to 1973

University of Rochester A.B. (Honors) English
Harvard University
Ed. D. Learning Environments( Human Development and Sociology) Dissertation Advisor: Lawrence Kohlberg Dissertation: “Moral Atmosphere of the Prison”

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 23 of 33

Academic Appointments: 1973 to 1981 1982 to 1986 1986 to 1988 1989 to 1992 1994-1995 1995-2007 2006-2008
2008-2014

University of California at Irvine Assistant Professor of Social Ecology
Seattle University Associate Professor of Sociology
University of Pennsylvania Faculty Member in Computer Education/Criminal Justice
City University Faculty Member in Education, Business and Criminal Justice
American University, Society And Justice Program Adjunct Professor Law and Justice Program
University of New Orleans Associate Professor, Director CSLJ Department of Sociology
Texas State University, Research Professor, Criminal Justice, Foundations of Excellence Award
Tulane University

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 24 of 33

2014-current Selected Books

School of Public Health and Tropical Medicine, Global Health Systems and Development Department Research Professor of Public Health,
Secretary to Faculty Senate (20102011)
Outstanding Undergraduate Teacher (2012 and 2013))
LSU School of Public Health Professor of Public Health (Adjunct) Teach doctoral seminar, Ethics and Public Health, Violence, Doctoral Research Coordination, Grant Development, Research

Scharf, Peter, Readings in Moral Education, Minneapolis, Minnesota; Winston Press, 1978.
Scharf, Peter and William McCoy, Growing Up Moral, Minneapolis, Minnesota:
Winston Press, 1979.
Hickey, Joseph, and Peter Scharf, Towards a Just Correctional System, San Francisco, California: Jossey-Bass, 1980.
Scharf Peter and Arnold Binder, Badge and the Bullet, New York, New York:
Praeger Books, 1983.
Scharf, Peter, a Guide to Computer-Age Parenting, New York, New York: Mc Graw Hill, 1984.
Scharf, Peter, Understanding the Computer-Age, New York, New York: Macmillan, 1990.
Scharf, Peter: Law Enforcement Integrity: the state of the art. Washington, DC: Bureau of Justice Assistance, 2006.
Scharf, Peter, Geerken, Michael, et. al. Guide to Justice Information Systems Performance Measures Washington, DC: Bureau of Justice Assistance, 2008.

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 25 of 33
Selected Journal Titles
Scharf, P. "Inmates Conception of Legal Justice," Journal of Criminal Justice and Behavior, 1976, 3, 101-123. Scharf, P. "Scoring Moral Reasoning," Journal of Contemporary Psychology, 1981, 26, 1, 23-26. Binder, A. and P. Scharf, "Police-Citizen Violent Encounters,” Annals of the American Academy of Political and Social Sciences, 1981 (2) 82-103. Scharf, P. "Prison Violence" Prison Journal, 1983, 51(2). Binder, A., and P. Scharf, "Deadly Force in Law Enforcement," Crime and Delinquency, 1982 (1) 1-18. Scharf, P. “Keeping Faith: Counseling in Correctional Settings," Counseling Psychologist, 1983, (9) 83-94. Scharf, Peter. "Kohlberg's Development as the Aim of Education, “Current Contents, 1987, 22, 31, 4. Scharf, Peter and Stone, William.” Examining the Correctional Technology Paradox,” Journal of the Institute of Justice, and International Studies (11), 2011. Scharf, Peter: “Perils of Policing Reform,” The Crime Report, October 2012. Scharf, Peter and Calderon, Jose, “After New Town: Controlling Gun Violence,” The Crime Report, January 2013. Scharf, Peter and Philippi, Stephen, 2015, “The New Orleans Police Department was Troubled Long before Hurricane Katrina.” The Conversation.
Selected Published Chapters
Scharf, P. "Police Officer Decision-Maker." In Baker, F. Ed. Determinants of Law Enforcement Policies, Lexington, Mass, Lexington Books, 1980.
Scharf, P. "Violence and Moral Values." In Hays, Solway and Roberts, Eds.
Violence and Society, Garden City, NY: Spectrum Press, 198.5.
Scharf, P. "Moral Education of the Juvenile Delinquent." In Manly-Casmir and Cochrane, Eds. Moral Education: The Practical-Domain, New York, NY: Praeger Books, 1986.
Scharf, P. "Law and the Child's Legal Conscience." In Sprague, Ed. Advances in Law and Child Development, Greenwich, Connecticut: JAI Press, 1986. Scharf, P. "Justice and the Criminal Offender's Moral Claim to Justice,” L. Morain Correctional Education, Ottawa, NJ: Canada Press, 1992.
Scharf, P. Foreword, in Osofsky, J. Children and Violence, Princeton, NJ: Alblex, 1997; 2003.
Scharf, P. Foreword to Unter, K. Melding Police and Policy to Dramatically Reduce Crime in the City of New Orleans: A Study of the New Orleans Police Department, 2009.

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Technical Reports, Published Presentations, Training Research, Policy Publications
Rules: Interdisciplinary module Biological Sciences Curriculum Study (1982). Police Use of Deadly Force-UC Irvine (1982). "Shoot/Don’t Shoot” HBO Video-DBA (1984).
Creating a Correctional Just Community-Harvard U (1985). Micro Works: Tools for Learning-Institute for Scientific Information (1990).
At Risk Life skills: Computer Based Module-Wasatch Educational Systems (1992). Burge Torture Case Analysis- Police Foundation-Chicago PD.
Report to the Governor Regarding the Crown Heights Civil Disorder-NY State (1993). * US Customs Cultural Diversity Curriculum- Police Foundation (1994). Ethics and Oregon State Police-Police Foundation (1995). * Risk Assessment Management System-Police Foundation (1995). * Framework for Community Policing-BJA (1995). * BJA Goals and Directions-BJA (1997). * Managing the Use of Force-LA P.O.S.T (1997). Community Policing Training-CSLJ (1996). Police Leadership and Management-CSLJ (1997). Managing Criminal Justice Technologies Training Curriculum-Bureau of Justice Assistance (l999; 2003). * Technical Assistance for Integrating Criminal Justice Technologies-Bureau of Justice Assistance (1999). Technical Assistance Needs for Homicide Investigators-Institute for Forensics with Robert Keppel Bureau of Justice Assistance (2000). Power Users Criminal Justice Training Curriculum-Bureau of Justice Assistance (l999). * Crack Pipe Study-New Orleans Police Foundation (2001). *
Bail Study-New Orleans Police Foundation (2002). *
Privacy and Criminal Justice Databases Bureau of Justice Assistance (2002). * Assessing Integrated Criminal Justice Systems-Bureau of Justice Assistance (2003). *
Technology in Small Agencies –Bureau of Justice Assistance (2003).
Forensic Digital First Responders-National Institute of Justice (2004). *
Assessment of Austin SECURES® Implementation National Institute of Justice (2004). * SECURES Training Guide, National Institute of Justice (2004). *
N.O.P.D. Retention Study, CSLJ-Police Foundation (2004). *
Consequences of Partially Integrated Information Systems, Bureau of Justice Assistance (2004). *

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Performance Measure in Information Technology, Bureau of Justice Assistance (2005). * Assessment of EDLA PSN Project, PSN (2005). * The Art of IT Performance Measures, Bureau of Justice Assistance (2006). *
Managing Law Enforcement Integrity, Bureau of Justice Assistance (2006). *
Business Process Re-Engineering, Bureau of Justice Assistance-White Paper
(2006). *
Crime and Education, Project Inkwell (2007). *
Assessment of Hampton and Newport News SECURES® Implementation, National Institute of Justice (2007). *
Technology and Murder: U.S. DOJ Global IJIS Institute, George Washington
University (2007). *
PREA Final Report, Bureau of Justice Assistance (2008).
Assessing the Potential of Correctional Technologies, Moelis and Company (2009). Between Corrections and Law Enforcement: The International Association of Chiefs of Police (2010).
Youth Focused Policing: The International Association of Chiefs of Police (2011) Assessment of the Circle of Courage Mentoring Program: Tulane University School of Public Health and Tropical Medicine (2010).
At Risk Youth Strategic Plan for the NO (LA) Recovery School District: Tulane University School of Public Health and Tropical Medicine (2011).
An Analysis of N.O.P.D. Police Attitudes and Values: Tulane University School of Public Health and Tropical Medicine (2012).
Assessment of the CPI Project- LSU School of Public Health (2014)
Study of Correctional Population Trends in St. Tammany Parish LSU School of Public Health (2014). Performance Measures for Child Welfare Services: Tulane University School of Public Health and Tropical Medicine (2012).
Predicting Murder Trends: US House Judiciary Committee: (2012). *
After New Town Presentation to House Crime Sub-committee (2013). * Incarceration Rates in St. Tammany Parish (Presented to the St. Tammany Leadership Council (2014).
School Mass Shootings: Presented to the National Associates of School Safety Executives (2014). *
The Social Ecology of Youth Violence: US House Judiciary Committee: 2015*

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NO Macarthur Jail Reduction Manuscript (2015) LSU School of Public Health (2015). *
Raise the Age: a report to the LA Legislature with Dr. Stephen Philippi, et. al. (2016), *
Education and Violent Crime, Educational Testing Service (2017). * Briefings to Mayor Elect Cantrell Transition Team, (2018). Facilitation of City in Crisis Opioid Forum LSUHSC (2019) The Costs and Consequences of Gun Violence, University of Alabama Medical School (2019) *Available through www.cslj.net; www.nicic.org www.ojp.org or through Google
Recent Selected Expert Witness Activity Cleary vs. Smith (1986) - constitutional rights of offenders (consent decree in effect) Davis vs. Mason County (1991) - use of force (reviewed by Supreme Court): qualified in US District Court Wittmer vs. Peters (1996) - race and correctional hiring policies: opinion commended by Louis Posner 7th Circuit Appeals Waldron vs. Mc Millan (1996) – injury in pursuit of subject Riley vs. New Castle (1996) - false imprisonment and technology Brooks vs. Pryor Creek (1996) - use of force Terel vs. Fort Worth (1997) - use of force Benton vs. Woodward (1998) – US District Court (Section: 1983-42) Evivie vs. Landreneau (1999) - police use of force-qualified in US District Court (Section: 198342) Castillo vs. Round Rock (2000) – Texas positional asphyxia and wrongful death (under review US Supreme Court) Jones vs. Grand Prairie (2001) - Texas-investigative procedures in child rape Marshall vs. Wal-Mart (2002) – alleged “4473” negligence of retailer in Fort Worth gun sale People vs. Wright (2004) - capital murder of a police officer St. Clair vs. WA DOC (2006) – use of force/ correctional officer-retention State (TX) vs. Michael Scott (2008-2009) –murder of four teen-age girls (ICBY Murder case, Austin Texas) Burley vs. Harvey (2008)-defamation re allegations of criminal activity and racketeering State vs. Spearman (2010)-Frye qualification of gunshot detection technology USA vs. Italiano (2011)-civil rights trial re actions following Hurricane Katrina Brandt vs. CSX Rail (2012)-liability related to murder of a train conductor Ryan vs. Southwest Labs (2014)-Testing error by drug identification lab State of La vs. Brian Smith- Capital Punishment in death of patrol Deputies Preston Hunter vs. Wind Run Apartments(2017)- liability for gun assault in an Apartment Complex in New Orleans East Breon Stewart vs. Wind Run Apartments (2018)-liability for murder in an Apartment Complex

Case 1:19-cv-01593-JEB Document 61-13 Filed 03/31/20 Page 29 of 33
Schiro v. Walgreen’s- Liability(2019) for kidnapping robbery in a drug store Roslynn Bienemy et. Al vs. Chateau D Orleans Apartments (2019) Liability of an Apartment Complex for Foreseeable Murder of a resident. Zena Nelson, et.al vs. Allen Borne et. al. (2019) Liability for shooting of four young men at social event Gwendolyn Williams vs. Carrolton Trace Apartment (2019) Liability of an Apartment Complex for Foreseeable Murder of a resident.
Selected Invitational Presentations (past 20 years) Louisiana Association of Computer-Using Educators "Computer Instruction for High-Risk Youth," New Orleans LA. (1992) International Association of Chiefs of Police "Community Policing," St. Louis, MO (1993) National Organization of Black Law Enforcement Officers "Use of Deadly Force Revisited-Debate with Johnny Cochrane," Richmond, VA (1994) National Institute of Corrections "Corrections and Law Enforcement," Washington, DC (1995) Alaska Alternative Education Conference" Crime and Learning" Wasilla, AK (1996) National Firearms Meeting "Computer-Based Firearms Control," Washington, DC (1997) Southern Policing Institute" Law Enforcement Ethics," Gretna, LA (1998) National Sheriff’s Association "Law Enforcement Technologies,” Columbus, OH (1999) Mapping Law Enforcement Technologies," Portland, ME, Miami (FLA). Palm Springs, CA, Cleveland, OH (2000) Correctional Technology Association (NIC)," Mega trends in Correctional Technologies" Raleigh, NC (2001) Bureau of Justice Assistance (“Criminal Justice Data Bases, Privacy and Ethics”) New Orleans (2001) Correctional Technology Association," Technology Innovation in Correctional Technologies" New Orleans, LA (2002) National Governor’s Association," “Performance Measures” Washington, DC (2003 National Association for Justice Integration Systems “Solving Serial Crime through Technology” Fort Worth, Texas (2003) National Institute of Justice “Gunshot Detection” Washington DC (2004) National Association for Justice Integration Systems “Business Process Change” Boston, MA (2004)

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IJIS Institute “Technology and Organizational Change” Dulles, VA (2005) NCJA “Performance Based Criminal Justice”, Dana Point, CA (2005)
SEARCH “Organizational Perspectives and Accountability, Washington, DC (2006) NCJA/IJIS Institute “Performance Measures, Baltimore, MD (2006) NAIJS “Change and Performance Measures” Boca Raton FLA (2006) ACA-NJ “Evacuation of Orleans Parish Prison during Hurricane Katrina” Atlantic City, NJ (2006) Project Inkwell “Education and Crime” Seattle, WA (2006) George Washington University” Technology and Murder” Ashburn, VA (2007) IJIS Institute/NCJA “Murder Trends” Phoenix, AZ (2007) IIJIS “Performance Metrics and Violent Crime” Springfield, Ill. (2007) US House of Representatives Judiciary Committee “Early Interventions re: managing violent crime risks” NOLA (2007) US House of Representatives Judiciary Committee “What Works/What Does Not? Re: control of violent crime” Washington, DC (2007) Alliance for Good Government “Murder in New Orleans” New Orleans, LA (2007) IACP “Murder and the Media, New Orleans, LA (2007) BJA “Information Sharing Summit” Washington, DC (2008)
Nobel Public Service Presentation “Crime and the Knowledge Economy” Stockholm Sweden (2008)
Corrections Technology Association (Keynote) “Can Correctional Technology Save Costs?” Albany, NY (2009)
American Public Health Association” Performance Measure for Public Health Technologies” Philadelphia PA (2009)
American Public Health Association” Mentoring to Reduce Violent Crime Risks” Philadelphia PA (2009) National at-Risk Youth Conference” Violent Crime prevention” Joliet, Ill. 2010
Correctional Technology Association (Roundtable facilitator), Daytona Beach, FLA (2011)
LA Probation and Parole” Can we Afford Prisons-Now What? New Iberia, LA
(2011)
Correctional Technology Association (Roundtable facilitator and Major Session re:
Correctional Reentry), Daytona Beach, FLA (2012) US House Crime Sub-Committee: “Gun Violence after Newtown,” Congressional Violence Summit Washington DC (2013)

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New Orleans Roundtable Club, “Murder in New Orleans,” New Orleans, LA (2013) Louisiana State University Medical School” Murder viewed from public health perspective” (2013) Bureau of Justice Assistance Second Chance National Conference” Reducing Recidivism Risks, National Harbor, MD (2014) National Association of School Safety and Law Enforcement Officers, New Orleans (2014) Educational Testing Service HI SET Conference-Between Education Crime Prevention”-Keynote, New Orleans, LA (2015) US House Congressional Briefing, Social Ecology of Youth Violence, Washington, DC (2015) Educational Testing Service HI SET National Conference, -Between Education, Vocations and Crime Control”-Keynote, San Francisco, CA (2016) Tulane School of Medicine Gun Violence in New Orleans, (2017) Tulane School of Medicine Gun Violence and Medical Interventions: Tulane School of Medicine (2018) Louisiana State University Health Science Center a City in Crisis- Opioid Epidemic Facilitation (2019) University of Alabama Medical School, the Costs and Consequences of Gun Violence Control (2019)
Media Interviews & Grant Funding Dr. Scharf has received broad media exposure as an expert in the field of criminal justice and has demonstrated strong success in obtaining criminal justice funding. National Media interviews/presentations 2010-2019
• Washington POST • USA Today • New York Times • CBS TV • NBC Evening News-Lester Holt

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• Fox TV • ABC Nightline • Clear Channel Radio • Associated Press • PBS • NPR • CNN • Le Figaro • BBC • NY Times • Associated Press • Christian Science Monitor • Reuters • WWL Radio • NBC News
Federal Department of Justice/DHS Cooperative Agreements/Grants
• Bureau of Justice Assistance “Performance Measures for IT Systems” –
$150,000.00 (2002)
• National Institute of Justice/ FBI “Gulf Coast Computer Forensics Lab -
$1,200,000 (2002)
• Bureau of Justice Assistance “Executive Technical Briefings for Information
Technologies”-$220,000.00 (2002)
• Bureau of Justice Assistance “Managing Criminal Justice Technologies”-
$650,000.00 (2003)
• Bureau of Justice Assistance “Managing Law Enforcement
Integrity”, $349,000.00 (2003)
• BJA “Project Safe Neighborhood” - $150 00 (2002-2006) • National Institute of Justice “Secures® Assessment-Gunshot Detection”-
$400,000 (2001-6)

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• Bureau of Justice Assistance, “Art of IT Performance Measures” $150,000
(2006-8)
• Office of Domestic Preparedness USAA-NIMS/WMD Training
“$600,000.00 (2005-10)
• Bureau of Justice Assistance PREA “Risk Assessment”-
$527,000.00 (2006-7)
• Bureau of Justice Assistance PREA “Change Experiment”-
$950,000.00(2007-9)
• Bureau of Justice Assistance-Assessment of Pegasus Local to
Local Sharing Initiative -$3,500,000.00 (total) with Pegasus
Research Foundation, Phase 1 and 2 :( 2009-11)
• Recovery School District, Designing an Alternative School for High Risk
Students (2012-3)
• Bureau of Justice Assistance-Assessment of BJA Co-Occurring Disorder
Initiative with LA DOC-$640,000- 2011-2014
• Bureau of Justice Assistance-Statewide Recidivism Reduction- With LA
DOC, $ 982,000.00-2012-14
• Bureau of Justice Assistance-Statewide Re-Entry Implementation- With LA
DOC, $ 700,000.00-2015-17
• Bureau of Justice Assistance- Phase II Assessment of BJA Co-Occurring
Disorder Initiative with LA DOC-$640,000- 2014-2017 Winner of ACA innovation award (2017)
• Mac Arthur Foundation-Assessment of Jail Reduction Initiative $43,000.00
(2016-8)
• Gretna Police Department-Race Relations and Social Media (2019)
Personal: Father of Adria, Sage, Razi and Tessa.
Grandfather of Sahara, Owen, Levi, Sedona, Deni, Hannah Cora, and Melia.

 Case 1:19-cv-01593-JEB Document 76 Filed 05/13/20 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

Ángel Alejandro Heredia MONS, et al.

)

)

Plaintiffs,

)

)

v.

)

)

Chad WOLF, et al.

)

)

Defendants.

)

__________________________________________)

Civ. No.: 1:19-cv-01593

MEMORANDUM IN SUPPORT OF THE PLAINTIFFS’ MOTION FOR AN ORDER TO SHOW CAUSE, EXPEDITED DISCOVERY, AND
APPOINTMENT OF SPECIAL MASTER

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TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................. 2 II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND ................................. 5
A. The Preliminary Injunction Order................................................................................... 6 B. Evidence Reveals Serious, Ongoing Violations of the Directive’s Procedural and Substantive Requirements, and Therefore, the Court’s Order. ........................................... 6
1. Procedural Violations .................................................................................................... 7 i. Per the Directive, ICE must provide arriving asylum-seekers with a Parole Advisal and Scheduling Notification (“Parole Advisal”). The contents therein shall be explained in a language the asylum seeker understands, and if necessary, through an interpreter. Directive §§ 6.1, 8.1. ............................................................................................................... 7 ii. Class members must be provided time to submit documents in support of parole, and instructions on where to submit them. Directive § 8.1. ......................................................... 7 iii. ICE officers must interview arriving asylum seekers to assess their eligibility for parole, no later than seven days after a positive credible fear finding. Directive § 8.2. ...... 8 iv. ICE shall provide arriving asylum-seekers “written notification of the parole decision, including a brief explanation for any decision to deny parole.” These notifications shall be provided to the asylum-seeker and “if represented, their representative within seven days of the date [the asylum-seeker] is initially interviewed for parole or the date [the asylum-seeker] requests a parole redetermination, absent reasonable justification for delay in providing such notification.” Officers “shall ensure reasonable access to translation or interpreter services ....” Directive §§ 6.5, 6.6, 8.2........ 9 v. “The supporting documents … and any other documents related to the parole adjudication should be placed in the [asylum-seeker]’s A-file in a record of proceeding format.” Directive § 8.10 ...................................................................................................... 12 2. Substantive Violations.................................................................................................. 12 i. “The applicable regulations describe five categories of [asylum-seekers] who may meet the parole standards based on a case-by-case determination, provided they do not present a flight risk or security risk” including individuals “who have serious medical conditions, where continued detention would not be appropriate” and those “whose continued detention is not in the public interest.” Directive § 4.3...................................... 12 ii. “In order to be considered for release” an asylum-seeker “must present sufficient evidence demonstrating his or her likelihood of appearing when required.” The Directive instructs that factors appropriate for consideration of this requirement include “community and family ties, employment history, manner of entry and length of residence in the United States, stability of residence in the United States, record of appearance for
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prior court hearings and compliance with past reporting requirements, prior immigration and criminal history, ability to post bond, property ownership, and possible relief or protection from removal available” to the asylum-seeker. “Officers should exercise their discretion to determine what reasonable assurances … are warranted on a case-by-case basis to mitigate flight risk.” ICE officers are also encouraged to “request that parole applicants provide any supplementary information that would aid [them] in reaching a decision.” Directive §§ 8.3 (2), 8.4 ....................................................................................... 13 C. A Careful Examination of Data Provided by Defendants Reveals Continued Noncompliance with the September 5th Order and Subsequent Orders ........................ 14
i. Available Reports Show that Starting in February 2017 There Was a Dramatic Jump in Denials Relative to Grants that Continues Today ........................................................... 15 ii. Use of Flight Risk as a Reason for Denial Has Inexplicably Become Extensive....... 16
iii. Data Provided by Defendants’ Shows Inconsistencies and Deficiencies in RecordKeeping and Reporting ......................................................................................................... 18
iv. Parole Redeterminations at Some Detention Centers Are Particularly Low and Have Only Shown Modest, Inconsistent Improvement in Parole Grants .................................... 20 III. LEGAL STANDARD FOR CONTEMPT..................................................................... 21 IV. ARGUMENT.................................................................................................................... 23 A. Defendants’ Noncompliance Satisfies the Legal Standard for Civil Contempt, Enabling the Court to Exercise its Inherent Power to Enforce its Order.......................... 23 1. This Court issued a clear and unambiguous order on September 5, 2019. ............ 24 i. The Court’s September 5th Order is Clear and Unambiguous. ................................... 24 ii. Defendants understood the clear and unambiguous Order......................................... 25 2. Pursuant to the Court’s September 5th Order, the Court required Defendants to engage in specific conduct to comply with the Order....................................................... 26 3. Defendants have failed to comply with the Court’s September 5th Order.............. 26
i. Defendants continue denying parole to an overwhelming number of class members without individualized determinations. ................................................................................ 27
ii. Defendants persistently fail to make such individualized determinations in consideration of specific facts of class members’ cases. ..................................................... 28
iii. Defendants fail to provide to class members all substantive and procedural requirements under the Directive......................................................................................... 28
iv. Defendants are unlikely to demonstrate justifiable reasons for their failure to comply with the Court’s Order.......................................................................................................... 30 B. Plaintiffs have presented a quantum of proof adequate to demonstrate to a reasonable certainty that a violation occurred, therefore satisfying the clear and convincing standard of proof. ................................................................................................ 32
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IV. REQUEST FOR RELIEF.................................................................................................... 32
A. Plaintiffs merit expedited discovery as their requests pass both the “Notaro” and “Reasonableness” tests, meriting a grant of the discovery, and Defendants should therefore be required to respond to such requests in a timely manner. ................................................. 33
1) Plaintiffs’ request for expedited discovery satisfies the Notaro test, indicating that Plaintiffs merit a grant of their request............................................................................. 33
i) Defendants’ contemptuous actions continue to cause irreparable injury to Plaintiffclass members, eight months after such actions were ordered enjoined by the Court. ..... 34
ii) Plaintiffs establish a connection between their expedited discovery request and avoidance of irreparable harm and provided evidence that harm will result without it. ... 34 iii) Plaintiffs are likely to succeed on the merits of their claims......................................... 35 iv) No undue burden would be imposed on Defendants if Plaintiffs’ requests for expedited discovery were granted. ........................................................................................ 35 2) Plaintiffs’ request for expedited discovery satisfies the “reasonableness” test, indicating that they merit such expedited discovery. ....................................................... 38 i) No preliminary injunction is pending in Heredia-Mons. ................................................ 38
ii) Plaintiffs’ expected discovery requests are within the scope of and narrowly tailored to the Court’s Order, thus the breadth of Plaintiffs’ requests is appropriate in scope. ......... 38 iii) Plaintiffs seek expedited discovery for the purpose of enabling the parties and Court to determine how best to develop a plan of action to bring Defendants into full compliance. ............................................................................................................................................... 39 iv) Plaintiffs allow ample time for Defendants to comply with their request for expedited discovery. ............................................................................................................................... 40 B. Plaintiffs’ claims merit the appointment of a Master to monitor and evaluate Defendants’ noncompliance, as well as provide and implement solutions to obtain full compliance................................................................................................................................ 40
i) Defendants have had numerous, and sufficient, opportunities to be heard prior to Plaintiffs’ present request for relief, including the appointment of a Master. .................. 41
ii) This Court has established that a Master may be appointed where a party fails to comply with a court order, such as Defendants have failed to comply in this case. .......... 42
iii) Despite copious circumstantial and statistical evidence to the contrary, demonstrating rampant abuse of the parole process, little improved parole rates, and violation of this Court’s Order, ICE maintains that it is nonetheless in compliance with this Court’s Order, and in turn, with the Directive. ............................................................ 43
iv) DHS itself has acknowledged ICE’s failure and indifference to ensuring accountability, adequate recording of data, compliance with its policies and standards, and imposition of remedial measures where noncompliance exists. .................................. 44
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Case 1:19-cv-01593-JEB Document 76 Filed 05/13/20 Page 5 of 56 v) The efficacy of the Master is not diminished by the unprecedented circumstances that the pandemic presents. ................................................................................................ 46 V. CONCLUSION .................................................................................................................... 47
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TABLE OF AUTHORITIES
Page(s)
Cases
 National Law Center on Homelessness & Poverty v. U.S. Veterans Admin., 98 F.Supp.2d 25 (D.D.C. 2000) ...............................................................................................33
Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C.Cir.1993) .....................................................................................................22
SEC v. Bilzerian, 112 F.Supp.2d 12 (D.D.C.2000) ..............................................................................................22
NLRB v. Blevins Popcorn, Co. 659 F.2d 1173 (D.C. Cir. 1981) ...............................................................................................22
Cobell v. Babbitt, 37 F.Supp. 2d 6 (D.D.C. 1999) ................................................................................................21
SEC v. Current Fin. Servs., Inc., 798 F.Supp. 802 (D.D.C.1992) ..........................................................................................23, 30
D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455 (7th Cir. 1993) .......................................................................................................24
SEC v. Diversified Growth Corp, 595 F.Supp. 1159 (D.D.C. 1984) .............................................................................................21
Evans v. Fenty, 480 F.Supp.2d 280 (D.D.C. 2007) .....................................................................................42, 43
In re Fannie Mae Derivative Lit., 227 F.R.D. 142 (D.D.C. Feb. 23, 2005).......................................................................33, 34, 38
Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911).................................................................................................................23
Guttenberg v. Emery, 26 F.Supp. 3d 88 (D.D.C. Mar. 19, 2014) .........................................................................38, 39
Heredia Mons v. McAleenan, 2019 WL 4225322 (Nov. 8, 2019)...............................................................................34, 41, 43
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982).................................................................................................................33
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Int'l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F.Supp.2d 35 (D.D.C.2010) ............................................................................22, 23, 28, 30
La Buy v. Howes Leather Co., 352 U.S. 249 (1957).................................................................................................................40
United States v. Latney’s Funeral Home, Inc., 41 F.Supp.3d 24 (D.C.Cir. 2014)..................................................................................... passim
McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949).................................................................................................................23
NAACP, Jefferson County Branch, v. Brock, 619 F.Supp. 846 (D.D.C. 1985) ...............................................................................................22
Newton v. Consol. Gas Co. of N.Y., 259 U.S. 101 (1922).................................................................................................................40
Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982) .........................................................................................33, 34
Ex parte Peterson, 253 U.S. 300 (1920).................................................................................................................40
Phillips v. Mabus, 894 F.Supp.2d 71 (D.D.C. 2012) .............................................................................................25
Schmidt v. Lessard, 414 U.S. 473 (1974).................................................................................................................24
Shillitani v. United States, 384 U.S. 364 (1966)...........................................................................................................21, 33
Smartdoor Holdings, Inc. v. Edmit Indus., Inc., No. 14-657 (JEB), 2016 WL 11004352 (D.D.C. 2016)...........................................................33
The Court’s September 5th Order is Clear and Unambiguous .....................................................................................24
United States v. United Mine Workers of America, 330 U.S. 258 (1947).................................................................................................................32
Statutes
44 U.S.C.A. § 3101 ........................................................................................................................36
18 U.S.C. § 2017............................................................................................................................36
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Case 1:19-cv-01593-JEB Document 76 Filed 05/13/20 Page 8 of 56 44 U.S.C. § 3301......................................................................................................................36, 37 44 U.S.C. § 3302............................................................................................................................36 Other Authorities Fed. R. Civ. P. Rule 26 ..................................................................................................................33 Fed. R. Civ. P. 53 ...........................................................................................................................40 Fed. R. Civ. P. 53(a)(2)..................................................................................................................41 Fed. R. Civ. P. 53(b)(1)..................................................................................................................41 Fed. R. Civ. P. 53(b)(2)(A)-(E)......................................................................................................41 Fed. R. Civ. P. 53(c)(1)(A)-(C)......................................................................................................41 Fed. R. Civ. P. 65(d) ......................................................................................................................24
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Plaintiffs respectfully request the following: (1) issuance of an order requiring Defendants, Immigration and Customs Enforcement, New Orleans Field Office (hereinafter “NOLA ICE” or “Defendants”), to show cause why they should not be held in contempt for contravening this Court’s Preliminary Injunction Order, entered on September 5, 2019 (hereinafter “the Court’s Order” or “the September 5th Order”); (2) expedited discovery in support of said Motion to Show Cause; and (3) should this Court grant Plaintiffs’ Motion to Show Cause, the appointment of a Special Master (hereinafter “Master”) to ensure compliance with this Court’s September 5th and subsequent, related Orders.
Careful review of data from the Defendants’ monthly reports to this Court, yearly parole data for the NOLA ICE region compiled by the Defendants over the past few years, documentation and firsthand anecdotal information provided by witness declarants and their legal counsel, reveal that Defendants have defied the Court’s Order in the following respects: (1) Defendants have consistently failed to conform to all of the substantive and procedural requirements of U.S. Immigration and Customs Enforcement, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 9, 2009) (hereinafter “the Directive”), denying class members important procedural safeguards in the parole application process, (see Ct. Order, ¶ 3-5, No. 19-1593 (JEB) (Sep. 5, 2019)); (2) Defendants have continued to deny parole to provisional class members “absent individualized determination[s] of flight risk and danger to the community. . . based on specific facts of each provisional class-member’s case,” regardless of the supporting evidence provided by each class member and/or their legal counsel; and (3) Defendants have defied this Court’s Order to provide complete and accurate parole adjudication data via monthly reports filed with the Court.
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The evidence before the Court will sufficiently support a finding that Defendants are in contempt of the September 5th Order (See Ct. Order ¶ 1-9); and continue to disregard the Directive in violation of the Court’s Order. More than eight months have elapsed since this Court issued the September 5th Order, enjoining Defendants from disavowing the Directive and from continuing to implement its blanket, categorical, parole-denial policy. Defendants, however, continue to defy the Court’s Order and the Directive in several ways. Accordingly, to remedy Defendants’ continued defiance of the September 5th Order, Plaintiffs request that the Court order Defendants to respond to expedited discovery requests to identify and provide detailed information about the processes that Defendants have implemented to comply with the Court’s Order and consequently, the Directive, and to determine the effectiveness of these processes in securing compliance with both.
Plaintiffs also request that the Court appoint a Master to enforce the terms and obligations set forth in the Court’s Order; to ensure consistency in and monitor compliance with the application of the Order among each one of the detention facilities under the jurisdiction of NOLA ICE; and to ensure that Defendants’ present and future Directive obligations are met.
I. INTRODUCTION As the Court noted in its Memorandum Opinion for the September 5th Order, “[i]n 2016, the NOLA ICE Field Office denied parole in only 24.5 percent of the 229 decisions made.” See Ex. 1A; see also Prelim. Inj. Mem. Op., ECF No. 32, 20. Although NOLA ICE has improved marginally upon a grant rate of zero in September 2019, it remains far below the 75.5 percent grant rate that prevailed in 2016. See Exs. 1A, 1B. Redacted Credible Fear Report records show that in 2016, 75.5 percent of parole applications were granted; however, this number significantly decreased in the following years. For example, less than two percent were approved in 2018. See
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Ex. 1A. Declarations by NOLA ICE Supervisory Detention and Deportation Officer Jacques Metoyer (hereinafter the “Metoyer Declarations”) reinforce this finding, showing that after the Court’s Order, parole-grant rates remained at 6.5 percent for first-time applicants and 16.9 percent for applicants seeking redetermination. See Ex. 1B. The Metoyer Declarations further show that, in March and April of 2020, parole-grant rates remained below 25 percent for paroleredetermination applications and below 20 percent for first-time applicants. See Ex. 1B.
The Metoyer Declarations show that over the past two months (i.e., March 1, 2020 through April 17, 2020), fewer than ten and as few as zero parole redetermination adjudications occurred at several facilities (emphasis added). See Ex. 1C. This is alarming for three reasons: first, the detained population that NOLA ICE oversees has more than doubled since 2016;1 second, upon information and belief, Plaintiffs’ class members are filing more requests, not fewer, due to fear of imminent illness and potential death at the hands of the unprecedented COVID-19 viral pandemic during the reported months;2 and third, in 2016, Defendants were not required to take this deadly pandemic into account when weighing public interest under of the Directive.3 Defendants do not offer an explanation for these reportedly low numbers of parole-redetermination adjudications.
1 “According to … ICE data … the number of detainees in facilities contracted by [ICE] in Louisiana and Mississippi surged from just over 2,000 at the end of 2017 to more than 8,000 as of July [2019].” NBC News, August 15, 2019 available at https://www.nbcnews.com/ politics/immigration/ice-detainments-surge-mississippi-louisiana-alarming-immigrationadvocates-n1042696; see also “‘Detainment for the New Orleans field office …is about 5,200 persons currently,’ [ICE spokesman] Cox said.” Alabama News, May 4, 2020, available at https://www.al.com/news/2020/05/i-am-scared-of-dying-in-here-lawsuit-demands-release-of-18immigrants-from-alabama-ice-facility.html. 2 See Huber Decl. at ¶ 5; KSR Decl. at ¶ 21. 3 Directive at § 4.3 (5), see also COVID-19 Detained Docket Review, Updated ERO Guidance at p. 3, ECF No. 66 (April 4, 2020).
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In the eight months since the Court’s Order has been in effect, NOLA ICE has reportedly granted a mere 13.5 percent of 2,052 parole requests. See Ex. 1D. Indeed, Plaintiffs fear that the effective grant rate is much lower, because at least 17 class members received parole denial letters that were not reflected in Defendants’ monthly reports, and as few as 36 and as many as 300 class members have not received parole determinations at all. See Ex. 1D (reflecting 20 pending requests); Ex. 24 (Copies of Parole Denial Letters Issued to Class Members and Not Reflected in Defendants’ Monthly Reports); see also Huber Decl. at ¶ 2d; RCL Decl. at ¶ 21; LPC Decl. at ¶ 17; KSR Decl. at ¶ 22 (reporting that an ICE officer recently stated, “there are only four of us, 300 of you and everyone has applied for parole”). Moreover, Defendants failed to report parole data on the following facilities within the NOLA ICE region: Tallahatchie County Correctional Facility (hereinafter “Tallahatchie”); Etowah County Detention Center; and the Alexandria Staging Facility. Yet, several class members report blanket denials of their parole requests at Tallahatchie since the Court’s Order. See CLH Decl. at ¶¶ 5-6; DAA Decl. at ¶ 7; YPT Decl.at ¶ 6; YMT Decl. at ¶ 6; MB Decl. ¶¶ 7-8.
During parole reviews, NOLA ICE continues to engage in the very practices—including failure to provide parole interviews, failure to ensure language access and denying parole on nonindividualized, categorical grounds — that the Court enjoined in its September 5th Order. ECF No. 33 at ¶¶ 4-5. In the face of these facts, the Court should find that NOLA ICE is in contempt of the September 5th Order.
Plaintiffs do not move for contempt lightly. Plaintiffs raised many of these ongoing issues with Defendants’ counsel on numerous occasions via electronic correspondence and requested
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assistance in getting Defendants to address them. See generally Exs. 30-38.4 Plaintiffs’ concerns
have been met with reluctance or silence. Id. Plaintiffs waited eight months since the Court’s Order
was issued in the hopes that the parole practices and grant rate by NOLA ICE would substantively
improve. They have not. Accordingly, Plaintiffs file the instant motion for contempt.
II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The Directive provides that, absent exceptional circumstances, ICE should release asylum-
seekers who establish their identity and show that they are neither a flight risk nor a danger to the
community. On May 30, 2019, Plaintiffs filed a complaint against NOLA ICE for their failure to
comply with the Directive. Complaint, ECF No. 1. On June 28, 2019, Plaintiffs filed a motion to
certify a class. Class Cert. Mot., ECF No. 15, (Jun. 28, 2019). On July 18, 2019, Plaintiffs filed a
motion for preliminary injunction on behalf of its class. Prelim. Inj. Mot., ECF No. 22, (Jul. 18,
2019). On September 5, 2019, the Court issued a memorandum opinion and order granting
Plaintiffs’ motions. Prelim. Inj. Mem. Op., ECF No. 32 (Sep. 5, 2019); Prelim. Inj. Order, ECF
No. 33 (Sep. 5, 2019).
4 Ex. 30 (identifying, for the second time, that underreporting is a concern which must be addressed to which Defendants’ Counsel insisted that without more details and A numbers, his clients would not address said concerns; evoking Plaintiffs’ Counsel’s response that Defendants should “proceed in good faith” by detailing processes for tracking parole submissions and initiating a query into reported misconduct, reminding Counsel that Defendants control the information needed for investigation); Ex. 31 (showing that Defendants’ Counsel never replied to an email from Plaintiffs’ Counsel seeking cooperation in addressing concerns that data provided by Defendants’ is inaccurate, since Plaintiffs’ Counsel discovered dozens of class members not reflected in Defendants’ monthly reports); Ex. 32 (showing that Defendants’ Counsel never replied to an email from Plaintiffs’ Counsel, seeking cooperation from Defendants regarding the case of a high-risk COVID-19 vulnerable individual who had been in custody for 305 days and whose parole request had been denied); Ex. 34 (showing Defendants’ Counsel’s refusal to provide translation of parole notification); Ex. 38 (showing that Defendants’ Counsel never replied to an email from Plaintiffs’ Counsel seeking cooperation from Defendants’ Counsel by sharing a list of high-risk individuals, compiled by Plaintiffs’ Counsel in order to facilitate a prompt review of their parole eligibility).
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A. The Preliminary Injunction Order The Court entered a class-wide preliminary injunction on September 5, 2019 based on the unjustified, dramatic drop from historically consistent parole-grant rates that inexplicably occurred after 2016 within NOLA ICE, and on additional evidence reflecting violations of the Directive. Prelim. Inj. Order, ECF No. 33. Specifically, the Court enjoined Defendants from denying parole to any class member without an individualized determination regarding the necessity of detention “based on the specific facts of each provisional class member’s case.” Id at ¶ 4. The Court further required Defendants to “conform to all of the substantive and procedural requirements of” the Directive. Id. at ¶ 5. In so ruling, the Court found that Defendants were likely violating the Directive and that Plaintiffs faced irreparable harm from their continued detention. Prelim. Inj. Mem. Op., ECF No. 32, 22-24. B. Evidence Reveals Serious, Ongoing Violations of the Directive’s Procedural and
Substantive Requirements, and Therefore, the Court’s Order. The Directive’s stated purpose “is to ensure transparent, consistent, and considered ICE parole determinations for arriving [asylum-seekers] in the United States.” Directive at § 1. To that end, it instructs ICE field offices to follow detailed procedures in making parole determinations and establishes reporting requirements “to ensure accountability and compliance with [its] procedures.” Id. The Directive specifies that ICE “shall maintain national and local statistics on parole determinations and have quality assurance processes in place to monitor parole decisionmaking.” Id. at § 6.3. Yet, careful analysis outlined infra illustrates that Defendants are violating this mandate. Defendants have failed to comply with the Court’s Order to adhere to the Directive’s “substantive and procedural requirements” as follows:
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1. Procedural Violations i. Per the Directive, ICE must provide arriving asylum-seekers with a Parole Advisal and Scheduling Notification (“Parole Advisal”). The contents therein shall be explained in a language the asylum seeker understands, and if necessary, through an interpreter. Directive §§ 6.1, 8.1.
Since the Court’s September 5th order and as recently as February 2020, Defendants have failed to ensure that class members are consistently provided with a Parole Advisal and rarely, if ever, do officers ensure that an interpreter or translation is provided to class members that are not English language proficient. See YPT Decl. at ¶ 9; CLH Decl. at ¶ 5; MB Decl. at ¶¶ 6-8; YCF Decl. at ¶ 4; KSR Decl. at ¶ 7; YPT Decl. at ¶ 13.
ii. Class members must be provided time to submit documents in support of parole, and instructions on where to submit them. Directive § 8.1.
Many class members report difficulty determining who their assigned Deportation Officer (hereinafter “DO”) is at any given time, let alone having the opportunity to communicate with or receive instructions from DOs on how to submit documents in support of their parole requests. See YPT Decl. at ¶ 19; LPC Decl. at ¶ 10; MB Decl. at ¶ 11; Crawford Decl. at ¶ 3b; Fonte Decl. at ¶ 2b; Giardina Decl. at ¶ 2.2; Huber Decl. at ¶¶ 2b-2c. Additionally, class members are given unreasonably short timelines to submit supporting documents. Id. See also Ex. 26; Ex. 27 (Copies of Parole Advisals with Two and One-Day Deadlines to Submit Supporting Documents). At some facilities under Defendant’s purview, class members report officers refusing to accept, or review, documents submitted in support of their parole requests. See LPC Decl. at ¶¶ 8, 17; KSR Decl. at ¶¶ 7-9; YCF Decl. at ¶¶ 4-6; see also Ex. 25 (Copies of Forms Showing ICE Refusal to Consider Class Members’ Written Requests). For example, LPC shared that her parole request was returned to her sealed and unopened with a blank Parole Advisal and a sticky note from her assigned DO,
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in effect refusing to consider her supporting documents. LPC Decl. at ¶ 17; see also Ex. 22 (Photocopy of Sticky Note Provided to Class Member on Blank Parole Advisal).
Others report they are given misinformation about parole requests and what supporting documentation is required. See CLH Decl. at ¶¶ 11-14; MB Decl. at ¶¶ 12-14; RCL Decl. at ¶ 19; Fonte Decl. at ¶ 6; Giardina Decl. at ¶ 3; Crawford Decl. at ¶¶ 3b-3d. Some class members report officers at several facilities have expressly told them “there is no parole.” See CLH Decl. at ¶ 8; MB Decl. at ¶ 12; DAA Decl. at ¶ 7. One man detained at the Winn Correctional Center (hereinafter “Winn”) reports that “after the September 5th order … many of the officers were making comments on a weekly basis” saying “that no one would receive parole, that [they] would have to have stage-four cancer or be pregnant to get out, and that there was a zero percent chance of anyone being granted parole.” RCL Decl. at ¶ 19. At Tallahatchie, there appears to be a continued pattern and practice of de facto denial for all initial parole requests without document review of any kind. See CLH Decl. at ¶¶ 5-6; DAA Decl. at ¶ 7; YPT at ¶ 6; YMT Decl. at ¶ 6; MB Decl. ¶¶ 7-8. Notably, Defendants never included data from this facility in their Court ordered monthly reports. See Exs. 1C, 1D.
iii. ICE officers must interview arriving asylum seekers to assess their eligibility for parole, no later than seven days after a positive credible fear finding. Directive § 8.2.
Class members report not receiving parole interviews. See YMT Decl. at ¶¶ 6, 9-10; YMT Decl. at ¶ 6; MB Decl. at ¶¶ 6-8, DAA at ¶ 7; YCF Decl. at ¶¶ 4-6; KSR Decl. at ¶ 7; CLH Decl. at ¶ 6; Fonte Decl. at ¶ 2b; Giardina Decl. at ¶ 1; Crawford Decl. at ¶ 3a. Since the Court’s September injunction one advocate “worked on 25 parole requests for individuals detained in Louisiana” and shares that “23 of these 25 clients report not being given a parole interview after their parole application was submitted.” Huber Decl. at ¶ 2a. One class member reports that he
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never received a parole interview of any kind despite his numerous requests over the course of 10 months. See APE Decl.5
Others report receiving an English-language questionnaire without translation or interpretation assistance in lieu of an interview. See YCF Decl. at ¶¶ 8, 12; MPI Decl. at ¶ 10; KSR Decl. at ¶ 18. One class member reports that a parole denial letter issued to him wrongfully stated he had received a parole interview when he had not, and that his bunkmates shared this experience. See YMT Decl. ¶¶ 9-10. Another francophone class member reports that his interviewing ICE officer repeatedly refused to provide him an interpreter and this refusal led to an outcome determinative error. See MB Decl. at ¶¶ 14-16.
iv. ICE shall provide arriving asylum-seekers “written notification of the parole decision, including a brief explanation for any decision to deny parole.” These notifications shall be provided to the asylum-seeker and “if represented, their representative within seven days of the date [the asylum-seeker] is initially interviewed for parole or the date [the asylum-seeker] requests a parole redetermination, absent reasonable justification for delay in providing such notification.” Officers “shall ensure reasonable access to translation or interpreter services ....” Directive §§ 6.5, 6.6, 8.2
Since the issuance of the Court’s Order, class members and their legal representatives report not receiving notifications of parole decisions. See RCL Decl. at ¶ 14; CLH Decl. at ¶¶ 6, 16-17, 20; KSR Decl. at ¶¶ 12, 21; Fonte Decl. at ¶ 5 (chart); Crawford Decl. at ¶ 3e. Many also report not receiving translation or interpretation when needed. See MPI Decl. at ¶ 12; YPT Decl. at ¶ 14; MB Decl. at ¶¶ 14, 18; CLH Decl. at ¶ 8; KSR Decl. at ¶¶ 8, 17; Fonte Decl. at ¶ 6; Giardina Decl. at ¶ 3; Crawford Decl. at ¶¶ 3b-3d.
As recently as late April 2020, a class member detained at the South Louisiana ICE Processing Center (hereinafter “Basile”) in Basile, Louisiana, shared that she “submitted a parole packet with
5 Counsel for Plaintiffs raised APE’s case with counsel for Defendants on April 17, 2020 and upon information and belief he was released from ICE custody on May 1, 2020. See Exs. 38-38A.
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additional evidence requesting a redetermination,” and that same evening “a private-prison guard returned [her] packet to [her] dorm … sealed and unopened” with “a sticky note [placed] on top of the packet with the following words handwritten on it ‘Has to be an Immediate Relative. Mother, Brother, Papa, Sister. You have been denied 3 times and served your denial notice.’” LPC Decl. at ¶ 17; see also Ex. 22. Another class member shared a similar experience from December 2019 at the River Correctional Center: “[A]fter about a month without any response, I made a request on a sheet of paper to ICE asking about the decision on my parole. ICE wrote back on the same sheet that my parole was denied, but there was no explanation as to why. I didn’t receive any other documentation” DAA Decl. at ¶ 14.
In February 2020, after being transferred to the LaSalle ICE Processing Center in Jena, Louisiana, DAA continued to seek a formal decision on his parole request: “I wrote to ICE on the tablet in my dorm asking why I hadn’t yet received a reply and was told that my ICE deportation officer is in River, so I would need to write to him to find out what was going on with my parole application. However, I don’t know my deportation officer’s name and was never given any contact information for him. As such, it was impossible for me to contact him. That is the only response I’ve gotten from anyone here in Jena.” DAA Decl. at ¶ 15. Similarly, in April 2020, one class member detained at Winn shared: “The last time I submitted a parole interview form and packet was on March 10, 2020, to my then-assigned DO, Officer Paredes. However, on March 12, 2020, DO Paredes and the other DOs from that time period left, and new ones arrived. Eventually, I was able to ask my newly assigned DO about the status of my previously submitted parole request. He informed me that it was denied … he never provided me the denial letter.” RCL Decl. at ¶ 14.
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One advocate reports that “between October 9, 2019 and March 23, 2020, [she] submitted 15 parole requests for clients detained in Pine Prairie … via email and mailed hard copies,” but that 13 of these requests remain unacknowledged by ICE in any way. Huber Decl. at ¶ 2d. She further notes that 10 class members for whom she helped file requests were not reflected anywhere in Defendant’s monthly reports. Id. at ¶ 2e. More recently, women detained at Basile asked ICE officers why they had not received determinations on their requests and were reportedly told “there are only four of us, 300 of you and everyone has applied for parole, and our supervisors are working from home.” KSR Decl. at ¶ 21. KSR shared that she submitted her most recent redetermination request with additional documents on March 14, 2020 but has “yet to receive any response to this request.” Id.
Even when class members do receive proper notification of determinations on their parole requests, it is rarely within the seven-day time frame required by the Directive. Defendants’ monthly reports alone demonstrate this fact. In 61.6 percent of first-time parole determinations, over seven days pass between the day an asylum-seeker requested parole and the day ICE issues a parole determination. See Ex. 1E. On average, it takes NOLA ICE over two weeks to issue a parole decision for first-time applicants after they make a parole request. See Ex. 1E. In one case, it took NOLA ICE over six months to issue a decision after a first-time parole request. See Declaration of Jacques Metoyer, Ex. B (A number ending in 6193), ECF No. 71, (April 23, 2020), (reporting that the asylum seeker requested parole for the first time on September 9, 2019 and received a determination on March 11, 2020). The data that Defendants provide does not contain information on the dates that applications are submitted or adjudicated for parole redetermination requests. Therefore, it is impossible to verify compliance with this aspect of the Directive for individuals
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seeking a redetermination. However, it is clear for those requests where information is available, NOLA ICE has not followed the Directive’s requisite time guidelines.
v. “The supporting documents … and any other documents related to the parole adjudication should be placed in the [asylum-seeker]’s A-file in a record of proceeding format.” Directive § 8.10
One class member detained at Basile shared the following anecdote from March 2020: “An ICE officer approached the door of our dorm, and I asked her to please accept my packet of documents in support of my parole-redetermination request. … [S] cracked open the door and ordered me to place it on the floor. She then proceeded to kick it across the floor with her boots to the other side of the room. Luckily, I had placed all of the documents in a sealed envelope. … Worse still, when I spoke with my newly assigned DO days later, he told me he did not receive the packet and had not seen it anywhere. That packet was lost.” LPC Decl. at ¶ 16.
Another class member detained at Winn reports, “During one particularly frustrating attempt, I submitted a thorough parole packet, with many documents. However, after the DOs shifted, the new DO informed me that he did not see any of my documents and had no idea where my parole packet was. I had to begin the process of collecting documents from within this jail all over again, including original notarized letters.” RCL Decl. at ¶ 15.
2. Substantive Violations
i. “The applicable regulations describe five categories of [asylum-seekers] who may meet the parole standards based on a case-by-case determination, provided they do not present a flight risk or security risk” including individuals “who have serious medical conditions, where continued detention would not be appropriate” and those “whose continued detention is not in the public interest.” Directive § 4.3
Class members and their legal representatives report that NOLA ICE is not properly weighing “serious medical conditions” and “public interest” when reviewing parole requests, particularly in light of the COVID-19 pandemic and the serious health risks it presents to those
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detained in the NOLA ICE region. See Isbister Decl.; Giardina Decl. at ¶ 5; KSR Decl. at ¶¶ 2223; MPI Decl. at ¶ 11; DAA Decl. at ¶¶ 8, 16-18; YPT Decl. at ¶ 19; LPC Decl. at ¶ 22. Mr. Giardina represents seven class members who suffer chronic medical conditions that make them particularly vulnerable to grave illness or death should they contract COVID-19, and whom NOLA ICE “continues to deny access to parole without explaining what makes them a flight risk or a danger to the community.” Giardina Decl. at ¶ 5.
ii. “In order to be considered for release” an asylum-seeker “must present sufficient evidence demonstrating his or her likelihood of appearing when required.” The Directive instructs that factors appropriate for consideration of this requirement include “community and family ties, employment history, manner of entry and length of residence in the United States, stability of residence in the United States, record of appearance for prior court hearings and compliance with past reporting requirements, prior immigration and criminal history, ability to post bond, property ownership, and possible relief or protection from removal available” to the asylum-seeker. “Officers should exercise their discretion to determine what reasonable assurances … are warranted on a case-by-case basis to mitigate flight risk.” ICE officers are also encouraged to “request that parole applicants provide any supplementary information that would aid [them] in reaching a decision.” Directive §§ 8.3 (2), 8.4
Legal advocates for class members report submitting thorough parole requests with extensive supplementary documentation and receiving boilerplate denial letters in response that suggest the evidence submitted was not taken into consideration by NOLA ICE. See Fonte Decl. at ¶ 2d; Giardina Decl. at ¶ 5; Crawford Decl. at ¶¶ 3d-3h; Isbister Decl. at ¶ 9; Huber Decl. at ¶ 3; see also Kelley Decl. and attached request; Arsolino Decl. and attached request. Class members broadly report that NOLA ICE continuously refuses to provide individualized reasons for determining that they are flight risks and that officers fail to properly consider extensive evidence they submit to the contrary. See MPI Decl. at ¶ 12; YCF Decl. at ¶ 13; YPT Decl. at ¶¶ 10-19; LPC Decl. at ¶¶ 12-13; MB Decl. at ¶18; RCL Decl. at ¶ 17; YMT Decl. at ¶¶ 7, 10.
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Class members also express frustration at refusals to provide clarity on what supporting documents or underlying factors would sufficiently satisfy NOLA ICE that they are not flight risks. For example, one class member detained at Winn shares, “[m]y proposed sponsors are my brother, a Lawful Permanent Resident, and his wife, a US citizen. They are waiting to receive me in their home in Arizona.” RCL Decl. at ¶ 10. RCL submitted letters of support, affidavits from each of his proposed sponsors, copies of their identity documents evidencing their immigration status, copies of their tax returns evidencing their ability to financially provide for him, and proof of their fixed residential address where he would live once released. Id. at ¶ 20. RCL also notes that ICE failed to take into consideration his eligibility for Lawful Permanent Residence should he be released parole. Id.
KSR arrived as the U.S. border with her husband, driven by the same fear of persecution by Cuban authorities because of their political opinions. KSR Decl. at ¶¶ 2-4. They had the same proposed U.S. citizen sponsor and strong supporting evidence in their parole requests. Id. at ¶¶ 6, 9-10. Yet, KSR’s husband was released months ago by a different ICE field office, while she continues to languish in Basile. As a result of her prolonged detention, KSR contracted H1N1 influenza in March 2020, developed chronic hypertension in April 2020, and has now been waiting approximately two months for a decision on her most recent request for parole. Id. at ¶¶ 22-24.
C. A Careful Examination of Data Provided by Defendants Reveals Continued Noncompliance with the September 5th Order and Subsequent Orders
The data sources provided by Defendants and relied on by Plaintiffs infra are summarized below: 1. Defendants court-ordered monthly data reports reflecting the parole-grant rate for NOLA ICE. See Minute Order, ECF No. 35 (Oct. 7, 2019). This data provides parole decisions from September 2019 to April 17, 2020, by the NOLA ICE Field Office for: 1) individuals seeking redetermination of their parole decision; and 2) individuals seeking a first-time parole decision from NOLA ICE.
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2. Data received through Freedom of Information Act (“FOIA”) requests by the American Civil Liberties Union (“ACLU”) and relied upon by this Court in issuing the September 5th Order. This data summarizes parole decisions by the ICE Field Offices for arriving asylumseekers found to have a credible fear from January 2016 to February 2019. See Beiers Decl. at ¶3, ECF No. 22-3.
i. Available Reports Show that Starting in February 2017 There Was a Dramatic Jump in Denials Relative to Grants that Continues Today
The number of parole grants was typically three times the number of parole denials in all of 2016 and January 2017. (emphasis added) See Ex. 1F. In February 2017, this trend reversed, and the number of parole denials has vastly outnumbered the number of parole grants since. The cause of this sudden reversal is unclear. Plaintiffs are not aware of any changes in formal policies, procedures, or the population of individuals seeking parole. In fact, Defendants have represented to this Court on multiple occasions that the Directive remains in effect and unchanged.6 ECF No. 2 at ¶¶ 44-45.
Unfortunately, and at the expense of irreparable harm to class members, this practice continues today with no explanation from NOLA ICE. The data included in the declarations provided by NOLA ICE as a result of the Court’s Order, continue to show vastly fewer parole grants than denials for those seeking parole. This is true for individuals seeking parole redeterminations and for first-time applicants. See Exs. 1G, 1H. In fact, from September 2019 to April 17, 2020, only 276 of 2,052, or 13.5 percent, of total determinations resulted in a parole grant. See Ex. 1D. For every six parole denials, there was only one parole grant. This sharply contrasts with 2016, where for every six denials there were around eighteen parole grants. (emphasis added). This is true on a monthly basis as well. For example, in December of 2019, well after the Court’s Order, NOLA
6 Contrast with ECF No. 2-1, Ex. A, Email from Brian Acuna, New Orleans ICE Field Office to American Immigration Lawyers Association – Midsouth Chapter (Nov. 29, 2018) (wherein he indicated that the 2009 Directive was technically no longer in effect “by Executive Order”).
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ICE issued a mere 5 parole grants out of 166 total determinations, or 0.9 percent of all determinations. This is in stark contrast to December 2016, when NOLA ICE issued 11 parole grants out of 13 determinations, or 84.6 percent of all determinations. See Exs. 1B, 1I.
ICE has not offered evidence of changes in the population of individuals seeking parole that could explain this precipitous drop in parole grants. Further, as described below, NOLA ICE’s reasons for denial, post-injunction, appear to be indiscriminate and are inconsistent with the mix of NOLA ICE’s reasons for denial pre-injunction. As a result, NOLA ICE’s reasons for denial are evidently not based on the individual facts and circumstances specific to each person seeking parole.
ii. Use of Flight Risk as a Reason for Denial Has Inexplicably Become Extensive From January 13, 2016 to January 31, 2019, NOLA ICE denied 248 parole applications out of 437 parole determinations. See Ex. 1J. In data received through FOIA requests by the ACLU and relied upon by this Court in issuing the September 5th Order, ICE provided reasons for such denials. The bases for parole denials reflected in the data are consistent with the Directive and include: 1) inability to establish identity; 2) pose a flight risk; 3) pose a danger to the community; 4) exceptional or overriding factors; and 5) no justification for redetermination. In some instances in 2018, the data indicated more than one reason for denial. Directive at § 8.3; see also Ex. 1J. In 2016, ICE denied 15.3 percent of its parole requests due to flight risk (35 out of 229 determinations). By comparison, the use of flight risk rose after 2016. From January 1, 2017 to January 31, 2019, 84 of the 208 determinations, or 40 percent, were denied due to “Flight Risk.” During the entire pre-injunction period starting in 2016, the highest number of denials based on flight risk by NOLA ICE occurred in 2018. During 2018, 73 out of 127 determinations, or 57.5 percent, were based on NOLA ICE’s determination of flight risk. See Exs. 1J, 1K. The use of the
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flight risk determination increased again post-injunction with substantially higher denials due to flight risk compared to the already elevated rates shown in 2017–2019. See Exs. 1L, 1M. From September 5, 2019 through April 16, 2020, NOLA ICE considered 1,393 requests for parole applicants seeking redetermination and deemed 1,132 as flight risks (81%). (Defendants fail to provide grounds for denials of first-time parole applications in their monthly reports. Metoyer Declarations, ECF Nos. 42, 44, 56, 58, 59, 71). NOLA ICE has not provided underlying documentation demonstrating the rationale for these flight-risk determinations. As a result, the reason for this percentage of flight-risk denials is unclear, but it evidently is not based on the individualized facts of parole redetermination requests. Supra section II.B1.iv., II.B.2., (individualized reasons for “flight risk” determinations were not provided to class members).
Defendants may claim the more prevalent use of flight risk denials is justified because the chances of parole applicants fleeing have somehow generally increased across the board. However, this cannot be true because if flight risk generally increased for all arriving asylum-seekers, parole grants would have dropped similarly across all field offices. This is not the case. See Ex. 1N. In 2018, NOLA ICE had the lowest parole-grant rate (1.6 percent) of any field office and the largest drop in paroles granted from 2016 to 2018 with the exception of Salt Lake City, Utah. Id. Further, 14 of the 23 other field offices reported an increase in the parole-grant rate from 2016 to 2018. Id. Notably, Salt Lake City reported only 68 parole decisions compared with 434 decisions reported by NOLA ICE during this time.
Anecdotal evidence provided by class members corroborates that other field offices are not systematically determining parole applicants to be flight risks. For example, two class members report that their spouses who were detained by other ICE Field Offices were released months ago based on the same evidence submitted in their own parole requests. See KSR Decl. at ¶¶ 9-10; MPI
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Decl. at ¶ 10. Prior to her transfer to the Louisiana region, KSR was detained at the West Texas Detention Facility where “[she] witnessed that ICE officers took time to explain the parole process to people and to provide a thorough parole interview … [and that] women who were denied parole were expressly told what evidence would be helpful to ICE in making a positive determination in their parole request.” KSR Decl. at ¶ 5.
iii. Data Provided by Defendants’ Shows Inconsistencies and Deficiencies in Record-Keeping and Reporting
NOLA ICE manually prepares parole determination reports for redetermination decisions and uses a computer-generated report for first-time parole decisions. See Metoyer Declaration at ¶¶ 46, ECF No. 71. Reports for first-time parole decisions do not indicate reasons for denial, even though ICE must provide a reason for denial in every parole consideration. Directive at § 8.2. Reports for first-time parole decisions do not identify the facilities where asylum-seekers are detained. Relatedly, class members are often transferred, and their assigned DOs are frequently shifted. See generally Exs. 2-12. Defendants also fail to provide submission dates for parole redetermination requests, making it impossible to discern if they are in full compliance with the Directive, and thus, the Court’s Order. See Metoyer Declarations, ECF Nos. 42, 44, 56, 58, 59, 71.
Data provided by NOLA ICE in compliance with the Court’s Oct. 7 Minute Order, reveal inconsistencies and deficiencies in its record-keeping and reporting. These inconsistencies and deficiencies should not be present if NOLA ICE followed the processes laid out in the Directive. Directive § 8.11. These errors also make verifying compliance with the Directive more challenging. For example, no parole-request date is recorded in 10 first-time parole decisions. See Ex. 1O. Additionally, some parole decision dates are reported in parole redeterminations before the date each asylum-seeker entered ICE custody (emphasis added). Id.
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At least 14 class members received parole-denial letters issued on dates that directly contradict the dates of denial reflected in Defendants’ monthly reports. See Group Ex. 23 Parole-related documents issued to class members by Defendants also contain errors. For example, one letter is addressed to two different women detained by NOLA ICE, and another alleges that the class member received a parole interview on a date when she had not yet entered the U.S. See Ex. 21, Ex. 24D.
NOLA ICE reported such errors with no notice in the relevant declarations and apparently did not correct these errors. These errors raise serious concerns about the quality of the data reported and whether it is accurate, which makes verifying compliance with the Directive more difficult. For example, at least 17 parole denial decisions and at least 10 class members do not appear anywhere in Defendants’ monthly reports despite requesting parole sometime between October 9, 2019 and February 17, 2020. See Ex. 24; see also Huber Decl. at ¶ 2e. This evidence taken in its entirety demonstrates that NOLA ICE’s record-keeping and reporting is insufficient to verify compliance with all aspects of the Directive and does not meet the quality assurance the directive aims to safeguard. Directive §§ 7.2, 7.3 (1), 8.11, 8.12.
Defendants’ monthly reports also show that class members are frequently subjected to prolonged detention, likely due to NOLA ICE’s failure to properly adjudicate their requests for release on parole. On average, Defendants’ reports reflect that class members seeking redetermination have been in ICE custody for 190 days and up to 563 days from the date of their last determination. See Ex. 1E. The data for redetermination requests end on March 15, 2020, which means asylum seekers likely remained in ICE custody additional days beyond the 190-day average. For example, one class member seeking redetermination, RCL, has been in ICE custody for 374 days as of March 13, 2020, according to ICE’s reported data. See Metoyer Declaration,
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Ex. A (A No. ending in 2045), ECF No. 59 (March 23, 2020). As of today, RCL has been detained 439 days.
Defendants’ reports reflect that KSR is a first-time parole applicant now awaiting a decision on her first redetermination request, and that she has been in ICE custody for 161 days as of March 12, 2020. See Metoyer Declaration, Ex. B (A No. ending in 5220), ECF No. 71 (April 23, 2020). The data further reflect that KSR was initially considered for parole on December 3, 2019 and waited nearly two weeks to receive notice of a denial determination. See Metoyer Declaration, Ex. B (A No. ending in 5220), ECF No. 56 (January 29, 2020). In fact, KSR has been detained for 224 days, denied parole three times, and has now been waiting 61 days for a determination of a fourth request she filed on March 14, 2020. KSR Decl. at ¶¶ 4, 22; see also Ex. 20, Copies of KSR’s Three Parole Denial Letters. Furthermore, KSR was first provided a denial letter alleging that she received a parole interview, when in fact no such interview took place. See KSR Decl. at ¶8. Notably, the letter provided to KSR was left undated. See Ex. 20.
iv. Parole Redeterminations at Some Detention Centers Are Particularly Low and Have Only Shown Modest, Inconsistent Improvement in Parole Grants
Since the Court’s Order, NOLA ICE data show few redeterminations at some detention centers and only modest, inconsistent improvement in parole-grant rates. Some detention facilities report few to no parole redeterminations in any given month relative their population size compared with other detention facilities. See Ex. 1C; see also Hartnett Declaration (reporting population sizes), ECF No. 64-2. For example, LaSalle Ice Processing Center and LaSalle Correctional Center report detaining over 1,300 people as of April 2020, but report only 19 redeterminations from September 2019 to April 2020, in the post-injunction data provided by Defendants. Id. See also Ex. 1Q. Catahoula Correctional Center reports detaining over 700 individuals as of April 2020, but reports only 9 redeterminations from September 2019 to April 2020. Id. Among the facilities that report
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more redeterminations (e.g., Winn, Basile, Richmond, Jackson Parish), parole-grant rates for these have rarely exceeded 35 percent in any month since the Court’s Order and sometimes drop after an increase. Id.
In December 2019, NOLA ICE facilities reported zero parole redetermination grants with the exception of Winn, where 3 percent of parole redeterminations were reportedly granted. See Ex. 1P. The reported monthly grant rates at the NOLA ICE detention facilities remain a fraction of the pre-February 2017 rates and do not show consistent improvement in either the number of parole redeterminations or the parole-grant rate. See Exs. 1I, 1P.
III. LEGAL STANDARD FOR CONTEMPT Courts have the inherent power and authority to enforce their orders. Shillitani v. United States, 384 U.S. 364, 370 (1966); see also SEC v. Diversified Growth Corp, 595 F.Supp. 1159, 1170 (D.D.C. 1984) (stating that it is within the court's civil contempt power to coerce obedience to a lawful Order). Once a court issues an injunction, those persons subject to it must obey terms of the order, as long as the injunction remains in effect: “`[a] court has the ‘inherent power to protect [its] integrity and prevent abuses of the judicial process’ by holding parties in contempt and ordering sanctions for violations of the court's orders.” Cobell v. Babbitt, 37 F.Supp. 2d 6, 9 (D.D.C. 1999) (citing Webb v. District of Columbia, 146 F.3d 964, 971 (D.C.Cir.1998)). This power to enforce, or civil contempt power, “is essential to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.” United States v. Latney’s Funeral Home, Inc., 41 F.Supp.3d 24, 29 (D.C.Cir. 2014) (citing Broderick v. Donaldson, 437 F.3d 1226, 1234 (D.C.Cir.2006)). When a party invokes a court’s civil contempt power by alleging a violation of a court order, the party moving for a civil contempt finding “bears the initial burden of demonstrating by clear
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and convincing evidence that: (1) there was a clear and unambiguous court order in place; (2) that order required certain conduct by Defendants; and (3) Defendants failed to comply with that order.” Latney's Funeral Home, Inc., 41 F. Supp. 3d at 30 (citing Int'l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F.Supp.2d 35, 38 (D.D.C.2010)); NLRB v. Blevins Popcorn, Co. 659 F.2d 1173 (D.C. Cir. 1981); Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1289 (D.C.Cir.1993); SEC v. Bilzerian, 112 F.Supp.2d 12, 16 (D.D.C.2000).
This “clear and convincing” standard “requires a quantum of proof adequate to demonstrate reasonable certainty that a violation occurred.” Latney’s Funeral Home, Inc., 41 F. Supp. 3d at 30 (citing Phillips v. Mabus, 894 F.Supp.2d 71, 91 (D.D.C. 2012)) (quoting Breen v. Tucker, 821 F.Supp.2d 375, 383 (D.D.C. 2011)). Once a predicate for contempt has been established, a court must consider whether a party can be held in civil contempt in light of the evidence before it and any mitigating factors: “[o]nce the court determines that the movant has made the above three-part showing, the burden shifts to the defendant to justify the noncompliance by, for example, demonstrating … its good faith attempts to comply.” Int'l Painters & Allied Trades Indus. Pension Fund, 736 F.Supp.2d at 38 (citing Bilzerian, 112 F.Supp.2d at 16–17); NAACP, Jefferson County Branch, v. Brock, 619 F.Supp. 846, 849 (D.D.C. 1985).
Further, a violation need not be willful or intentional because the intent of the party is irrelevant in a civil contempt proceeding: “when making a civil contempt determination, “[a] court ‘need not find that [the] failure to comply with the orders was willful or intentional’ because a party's intent is irrelevant . . .” Blevins, 659 F.2d at 1184; Bilzerian, 112 F.Supp.2d at 16. “The alleged contemnor must justify its noncompliance ‘categorically and in detail.’” Int'l Painters & Allied
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Trades Indus. Pension Fund, 736 F.Supp.2d at 40; see also SEC v. Current Fin. Servs., Inc., 798 F.Supp. 802, 808 (D.D.C.1992) (emphasis added).
The D.C. Circuit has considered “good faith substantial compliance” efforts or a party’s inability to comply with a court’s orders, as defenses which call for mitigation of contempt sanctions, but “to meet this standard, the contemnor must show that it ‘took all reasonable steps within [its] power to comply’” with the court order. Int'l Painters & Allied Trades Indus. Pension Fund, 736 F.Supp.2d at 40, (quoting Food Lion, Inc., 103 F.3d at 1017). The contemnor must show “adequate detailed proof” of good-faith efforts to substantially comply with the court order. Id. at 38. Good faith alone is nonetheless insufficient to simply claim actions constituted diligent or good-faith efforts toward compliance: “absence of wil[l]fulness does not relieve [a party] from civil contempt . . .” Latney’s Funeral Home, Inc., 41 F. Supp. 3d at 34; McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).
IV. ARGUMENT A. Defendants’ Noncompliance Satisfies the Legal Standard for Civil Contempt,
Enabling the Court to Exercise its Inherent Power to Enforce its Order. As parties to the original action, the Plaintiffs may invoke the Court’s power by initiating a proceeding for civil contempt. See Latneys’ Funeral Home, 41 F.Supp.3d at 30; see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444-45 (1911). Plaintiffs have demonstrated by clear and convincing evidence that they have met their initial burden of satisfying the three factors for civil contempt: 1) there was a clear and unambiguous court order issued by this Court on September 5, 2019; 2) the Court’s Order required Defendants to take specific steps to comply with the Order and the Directive; and 3) Defendants have failed to comply with both. Latney’s Funeral Home, 41 F.Supp.3d at 30, (citing Int'l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F.Supp.2d 35, 38 (D.D.C.2010); Armstrong v. Exec. Office
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of the President, 1 F.3d 1274, 1289 (D.C.Cir.1993); SEC v. Bilzerian,112 F.Supp.2d 12, 16 (D.D.C.2000)).
1. This Court issued a clear and unambiguous order on September 5, 2019. Defendants have taken contemptuous action by violating specific prohibitions and requirements in the Order, because the September 5th Order is unambiguous, and Defendants understood the clear and unambiguous Order issued by the Court.
i. The Court’s September 5th Order is Clear and Unambiguous. Rule 65(d) of the Federal Rules of Civil Procedure provides: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Fed.R.Civ.Pro. 65(d). The Court’s Order is valid, clear, unambiguous and meets the Fed. R. Civ. P. 65(d) requirement that injunctions describe in reasonable detail the acts sought to be restrained. See Schmidt v. Lessard, 414 U.S. 473, 475 (1974); D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455, 461 (7th Cir. 1993); Stotler, 870 F.2d at 1163. The specificity provisions of Rule 65(d) are not mere technical requirements. Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is enjoined. In the present case, this Court’s Order details with particularity the precise nature of the conduct it prohibits, stating in plain language: “Defendants are hereby ENJOINED from denying parole to any provisional class members absent an individualized determination, through the parole process, that such provisional class
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member presents a flight risk or a danger to the community.” See Ct. Order ¶ 3. “The individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class member’s case. Such determinations, moreover, shall not be based on categorical criteria applicable to all provisional class members.” Id. at ¶ 4. “Defendants shall provide provisional class members with parole determinations that conform to all of the substantive and procedural requirements of U.S. Immigration and Customs Enforcement, Directive No. 11002.1 [the Directive].” Id. at ¶ 5.
Thus, the Court’s Order constitutes a clear and unambiguous order that required certain specified conduct by Defendants. See, Latney’s Funeral Home, 41 F.Supp.3d at 31. See also Phillips, 894 F.Supp.2d at 91 (explaining that “An order granting injunctive relief is enforceable by the district court’s power of contempt.”) (citing Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 (1970)).
ii. Defendants understood the clear and unambiguous Order. Defendants had knowledge of the Court’s Order and what was required of them. Defendants demonstrated their knowledge of the Court’s Order by initially agreeing to its terms, conferring with Plaintiffs’ Class counsel regarding the notice to be provided to provisional class-members, and stipulating to a protective order which they signed and negotiated with Plaintiffs’ counsel. See Stipulated Protective Order, ECF No. 40. When Defendants needed clarification from the Court regarding the dissemination of the Parole Notice, the Court promptly clarified its Order to eliminate any miscommunications or misunderstandings. See Defendants’ Motion to Clarify the Court’s Order of October 7, 2019 Regarding Dissemination of Class Notice, ECF No. 43; see also Order Regarding Class Notice, ECF No. 51. This Court expeditiously and effectively addressed Defendants’ request for clarification, eliminating any discrepancies or doubts, and Defendants
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have not sought additional clarification regarding any other aspect of the Court’s Order that the Court has failed to address.
2. Pursuant to the Court’s September 5th Order, the Court required Defendants to engage in specific conduct to comply with the Order.
As stated supra, the Court’s Order enjoined Defendants from denying parole to any class member without an individualized determination regarding the necessity of detention “based on the specific facts of each provisional class member’s case.” Prelim. Inj. Order, ECF No. 33, ¶ 4. As explained infra, the data from Defendants’ monthly reports establish that Defendants have continued to implement an indiscriminate parole-denial policy without regard to this Court’s requirement that they provide individualized, case-by-case determinations to parole applicants.
The Court’s Order further required Defendants to abide by the procedural and substantive requirements of the Directive. Id. at ¶ 5. These extensive, detailed requirements are outlined supra section II.B. The Court’s Order and the Directive are unambiguous regarding the specific actions required by Defendants to comply with both. Unfortunately for the Plaintiffs, though more than eight months have elapsed since the Court’s Order, Defendants continue to disavow the requirements of the Directive, and consequently, this Court’s Order.
3. Defendants have failed to comply with the Court’s September 5th Order. This Court should grant Plaintiffs’ Motion for an Order to Show Cause because Defendants have failed to comply with the Court’s September 5th Order. Specifically, Defendants a) continue denying parole to an overwhelming number of class members without individualized determinations; b) persistently fail to make such individualized determinations in consideration of the specific facts of each class member’s case; c) fail to provide to class members the substantive and procedural requirements under the Directive; and d) are unlikely to demonstrate justifiable reasons for their noncompliance. See Order at ¶¶3-5.
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i. Defendants continue denying parole to an overwhelming number of class members without individualized determinations.
While showing sporadic, marginal improvement, parole data demonstrate that Defendants continue denying parole to an overwhelming number of eligible class members without engaging in individualized, case-by-case determinations, as required by the Court’s Order and the Directive. Since the Court issued its Order on September 5, 2019, the parole-grant rate for asylum-seekers detained by NOLA ICE is 13.5 percent of out of a total of 2,052 parole requests. See Ex. 1D. In other words, of 2,052 persons who reportedly applied for parole since the Court’s Order, NOLA ICE granted freedom to only 277. While this is a small increase from the near-zero percent parolegrant rates from 2017-2019, it is a marked departure from the parole-grant rate of 75 percent, which characterized the NOLA ICE region prior to January 2017. In fact, Plaintiffs are concerned that the effective grant rate is likely much lower. Supra section I.
More troubling is the fact that Defendants’ April monthly report shows a downward trend in parole decisions and grants. See Ex. 1B. According to the last two monthly reports, fewer than ten and as few as zero parole-redetermination adjudications occurred at several facilities. See Ex. 1C. This is alarming for the reasons outlined supra section I. Defendants do not offer an explanation for these reportedly low numbers of parole-redetermination adjudications.
Not only have the parole-grant rates failed to significantly improve, Defendants continue to ignore the Court’s and the Directive’s requirement of providing individualized, case-by-case determinations. Supra section II.B.2.ii. Additionally, Defendants are not giving due weight to “serious medical conditions” and “public interest” when reviewing parole requests, particularly in light of the COVID-19 pandemic and the serious health risks it presents to those detained in the NOLA ICE region. Supra section II.B.2.i.
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Simply put, since this Court’s Order, Defendants have underreported the number of parole denials issued, failed to report on parole requests at three facilities, failed to report on pending requests, failed to complete individualized parole determinations and still only shown marginal improvement in their reported parole-grant rates. While Plaintiffs posit that this data is sufficient to show noncompliance with the Court’s Order, Plaintiffs also provide anecdotal evidence showing that Defendants continue to shirk their obligation to abide by the procedural and substantive safeguards of the Directive, undoubtedly resulting in the little improved parole-grant rates. Defendants have not shown that they have “[taken] all reasonable steps within [their] power to comply” with the Court’s Order. Int'l Painters & Allied Trades Indus. Pension Fund, 736 F.Supp.2d at 40, (quoting Food Lion, Inc., 103 F.3d at 1017).
ii. Defendants persistently fail to make such individualized determinations in consideration of specific facts of class members’ cases.
Plaintiffs have presented substantial evidence of Defendants’ continued failure to provide individualized, case-by-case determinations to parole applicants. This is bolstered by data that reflects a sudden, unexplained and indiscriminate use of “flight risk” as the rational for parole denials within NOLA ICE. Supra section II.C.ii. Moreover, this phenomenon appears unique to the NOLA ICE region as a general increase in flight risk of the general asylum seeker population is not reflected in the parole data from other ICE field offices. Id. Given the clarity and unambiguity of the Court’s Order and Directive, and the time elapsed since the Order, this continued violation is unreasonable, if not willful. Defendants have not taken “all reasonable steps [in their] power to comply.” Latney's Funeral Home, Inc., 41 F.Supp.3d at 24, 40.
iii. Defendants fail to provide to class members all substantive and procedural requirements under the Directive.
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Data and anecdotal evidence establish that Defendants continue defying the Court’s Order by refusing to adhere to the Directive’s substantive and procedural requirements. Supra section II. For example, Defendants have failed to provide Plaintiffs time to submit documents in support of parole, and instructions on where to submit pursuant to Directive § 8.1. Supra section II.B.1.ii. Class members and their representatives report difficulty in determining assigned DOs and even when able to communicate with officers, are met with refusals to accept or review documents or are given misinformation about the parole process. Id. Such lack of transparency and unreasonable barriers to the parole process clearly violate the spirit of the Directive’s procedural safeguards. Id. See also Ex. 26, Ex. 27. At least six declarants expressed that at Tallahatchie, ICE officials appear to engage in de facto denial for all initial requests, with no document review. Supra section II.B.1.ii.
Class members also report not receiving parole interviews, a violation of § 8.2 of the Directive. Supra section II.B.1.iii. Defendants also fail to provide language assistance to class members seeking parole. Id. In some cases, Defendants’ failure was outcome determinative. Id. Yet, Defendants’ counsel has represented to the Court, that Defendants “find unreasonable and do not consider their obligation the provision of parole advisals in a language understood by arriving aliens.” Ex. 28 at 17-20.
Defendants are not in compliance with notification requirements of the Directive, despite the Court’s Order. See Directive §§ 6.5, 6.6, 8.2. Plaintiffs present ample evidence of Defendants’ rampant refusal to provide notice of parole decisions. Supra section II.B.1.iv. Defendants also flout the Directive’s seven-day time frame by which to issue a determination. Id. Finally, the evidence shows that Defendants, in many cases, do not adhere to the Directive’s required record-keeping practices regarding documents that class members submit in support of their parole request.
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Directive§ 8.10. Several class members report NOLA ICE officials refusing to accept or claiming to have never received parole documents in support of an application. LPC Decl. at ¶ 16; RCL Decl. at ¶ 15.
iv. Defendants are unlikely to demonstrate justifiable reasons for their failure to comply with the Court’s Order.
Plaintiffs have presented a plethora of evidence supporting the conclusion that Defendants have defied the Court’s Order and continue to disregard the requirements of the Directive. The burden now falls upon Defendants to show that they have “taken all reasonable steps within [their] power to comply” with the Court’s Order: “[o]nce the court determines that the movant has made the above three-part showing, the burden shifts to the defendant to justify the noncompliance.” Int'l Painters & Allied Trades Indus. Pension Fund, 736 F.Supp.2d at 38, 40 (requiring “adequate detailed proof” of good faith substantial compliance).
While Plaintiffs acknowledge that parole-grant rates have seen modest improvement per Defendants monthly reports, the overwhelming evidence shows that Defendants have not taken all the reasonable steps to comply with the Court’s Order that they provide Plaintiffs with individualized, case-by-case determinations of their parole requests, and comply with the substantive and procedural requirements of the Directive. The alleged contemnor must justify its noncompliance “categorically and in detail.” Id. at 40 (citation omitted); SEC v. Current Fin. Servs., Inc., 798 F.Supp. 802, 808 (D.D.C.1992) (citation omitted).
Defendants will likely allege that the court-ordered monthly reports that they submit to the Court show an increase in parole-grant rates for the NOLA ICE region. Defendants’ reliance on these monthly reports, however, is misplaced. The data provided by Defendants show inconsistencies, omissions, and deficiencies in NOLA ICE’s record-keeping and reporting, calling into question the accuracy and reliability of the court-ordered monthly reports.
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NOLA ICE is solely responsible for ensuring the reliability and accuracy of these reports. Defendants manually prepare parole determination reports for redetermination decisions, and they use a computer-generated report for first-time parole decisions. See ECF No. 71, Metoyer Declaration at ¶¶ 4-6. As outlined, supra section II.C.iii., data provided by NOLA ICE in compliance with this Court’s Oct. 7 Minute Order, reveal inconsistencies and deficiencies in its record-keeping and reporting, calling into question the reliability and accuracy of the reported parole-grant rates.
Despite the fact that Defendants are required to do so for every parole determination, the reports for first-time parole decisions omit the reasons for parole denial. Directive at § 8.2. The monthly reports also omit information regarding the submission dates for parole redetermination requests, making it impossible to determine whether they are in full compliance with the Directive, and therefore, the Court’s Order. See Metoyer Declarations, ECF Nos. 42, 44, 56, 58, 59, 71. Further, Defendants’ monthly reports demonstrate that class members are frequently subjected to prolonged detention, at least in part due to NOLA ICE’s failure to properly adjudicate their requests for release on parole. Supra section II.C.iii. Defendants’ errors and omissions extend to the parole-related documents that it issues to class members. See Group Exs. 23, 24. For example, Defendants have issued letters meant for one class member to another. See Ex. 21.
While NOLA ICE is likely aware of these omissions, inaccuracies, and other acts of noncompliance, it does nothing to correct these errors. For example, Plaintiffs have raised the concerns regarding the reliability and accuracy of the court-ordered monthly reports to no avail. See Exs. 32-38, supra note 4. The Court need not find that Defendants willfully violated the order. Latney’s Funeral Home, 41 F.Supp.3d at 30 (citing Goluba v. School Dist. of Ripon, 45 F.2d 1035, 1037 (7th Cir. 1995)). It must only find that they have not been “reasonably diligent and
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energetic in attempting to accomplish what was ordered.” Id. If the Court makes this finding, it can hold Defendants in contempt, and it may impose civil sanctions to coerce compliance with the Court’s Order and compensate parties for harm suffered. See United States v. United Mine Workers of America, 330 U.S. 258, 303-4 (1947).
The omissions and inaccuracies contained in Defendants’ court-ordered monthly reports, coupled with the extensive evidence showing other acts of noncompliance delineated in this Motion, are tantamount to a blatant disregard of the Court’s Order, and suggest that Defendants may not be engaging in good-faith compliance. Defendants’ “failure to satisfy these courtordered obligations further demonstrates an overall inability to comply with the Injunction,” and as such, justifies a finding of contempt. Latney's Funeral Home, Inc., 41 F. Supp. 3d at 35.
B. Plaintiffs have presented a quantum of proof adequate to demonstrate to a reasonable certainty that a violation occurred, therefore satisfying the clear and convincing standard of proof.
Plaintiffs have established by a quantum of proof that Defendants continue to defy ¶¶ 3-5 of the Court’s Order: “’In the context of civil contempt, the clear and convincing standard requires a quantum of proof adequate to demonstrate a reasonable certainty that a violation occurred.’” Latney’s Funeral Home, 41 F.Supp.3d at 30 (quoting Phillips v. Mabus, 894 F.Supp.2d 71, 91 (D.D.C. 2012). Plaintiffs present overwhelming evidence of Defendants’ myriad acts of noncompliance with the Court’s Order and the Directive. This Court has given Defendants over eight months to analyze, understand, and come into compliance with its Order. Yet, Defendants continue in their defiance, failing to take reasonable steps fully within their power to comply, leaving the Court little choice but to render them in contempt of the Court’s Order.
IV. REQUEST FOR RELIEF “A court's powers to enforce its own injunction by issuing additional orders is broad [particularly] where the enjoined party has not fully complied with the court's earlier orders”
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 National Law Center on Homelessness & Poverty v. U.S. Veterans Admin.,98 F.Supp.2d 25, 26– 27 (D.D.C. 2000)). Courts may inquire into disobedience of their orders, and issue sanctions ensuring compliance, which are just, specifically related to the claim at issue, and tailored to violations. See Shillitani v. United States, 384 U.S. 364, 370 (1966); Williams, 306 F.Supp. 617 (D.D.C. 1969); Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982); Smartdoor Holdings, Inc. v. Edmit Indus., Inc., No. 14-657 (JEB), 2016 WL 11004352 (D.D.C. 2016). Plaintiffs have shown their claim of Defendants’ disobedience, prima facie, necessitating the issuance of sanctions. See Supra section IV.
A. Plaintiffs merit expedited discovery as their requests pass both the “Notaro” and “Reasonableness” tests, meriting a grant of the discovery, and Defendants should therefore be required to respond to such requests in a timely manner. The Court can inquire into compliance by requiring responses to expedited discovery. Fed. R. Civ. P. Rule 26. Two approaches have been adopted by this Court to determine appropriateness of expedited discovery: 1) the Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982) test, and 2) the “reasonableness test.” In re Fannie Mae Derivative Lit., 227 F.R.D. 142 (D.D.C. Feb. 23, 2005). Expedited discovery will address Defendants’ noncompliance by providing information pre-requisite to identify problems, solutions, and relief; prevent further irreparable harm to Plaintiffs; and establish a road to compliance. Plaintiffs will seek discovery on: 1) methods for collection of applicant data (recording systems tracking collection and status of applications, technical functions of systems, personnel managing such systems); and 2) Implementation of required procedures and safeguards, documentation regarding denial, and relevant depositions.
1) Plaintiffs’ request for expedited discovery satisfies the Notaro test, indicating that Plaintiffs merit a grant of their request. In Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982), the court determined that issuing expedited discovery should require plaintiff to demonstrate i) irreparable harm, ii) connection
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between expedited discovery and the avoidance of that harm, and evidence that the harm will result without the discovery, and iii) some probability of success on the merits, which is greater than the injury to defendant if discovery is granted. Id. at 142 (implementing the Notaro standard).
i) Defendants’ contemptuous actions continue to cause irreparable injury to Plaintiff-class members, eight months after such actions were ordered enjoined by the Court. This Court stated “there is irreparable harm just by being detained when you shouldn’t be detained… detention alone is irreparable harm if you are not supposed to be detained.” Ex. 29, at 23. It also described irreparable harm as an “easy claim for Plaintiffs,” stating “I’m not really worried about that.” Id. As this Court noted when issuing its Order, “detention irreparably harms individuals ‘in myriad ways,’ and the injuries at stake there and here are ‘beyond remediation.’” Mons, No. 19-1593 (JEB), 2019 WL 4225322, 23 (D.D.C. Sep. 5, 2019). Since the Court’s Order, Defendants’ noncompliance has persisted, causing Plaintiffs to continue suffering irreparable harm. See Exs. 2-12; Exs. 13-27; Exs. 1A-1Q. ii) Plaintiffs establish a connection between their expedited discovery request and avoidance of irreparable harm and provided evidence that harm will result without it. As aforementioned, Plaintiffs continue suffering irreparable harm while Defendants continue disavowing the Court’s Order. Plaintiffs seek expedited discovery to learn the extent of disobedience and harm by Defendants. The discovery would enable identification of the improvements needed to achieve compliance. For example, the parties will identify 1) the parole processes that NOLA ICE has put into place, and determine whether sufficient measures are in place to ensure class members are provided “with parole determinations that conform to all of the substantive and procedural requirements” of the Directive (Ct. Order, No. 19-1593 (JEB), ¶¶3-5,
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(Sep. 5, 2019)); and 2) the individuals responsible for implementing these processes, and the improvements necessary to ensure accountability, oversight, and transparency.
Securing adherence by Defendants to substantive and procedural requirements of the Directive, as ordered by the Court, would address the harm of unnecessary prolonged detention, described in the facts, declarations, and other pleadings accompanying this brief. To provide a few illustrative examples, ongoing violations of the Order include officials unjustified refusal to issue determinations for months after submission; lack of uniform, continuous parole-adjudication process in the NOLA ICE region, supported by wildly varying parole-grant rates among its facilities; and lack of attention to detail and inaccuracy of Defendants’ monthly reports to the Court; all resulting in prolonged confinement. See Exs. 2-18; see also 1A-1Q. This irreparable harm, resulting from Defendants’ contempt, is likely to continue, unless this Court takes extraordinary steps – including granting Plaintiffs’ request for expedited discovery – to make Defendants accountable. Expedited discovery would enable the Court and parties to develop a roadmap to guide Defendants to compliance. But, as evidenced by Defendants’ past behavior, the Court cannot trust Defendants to achieve compliance with the Court’s Order or the Directive on their own.
iii) Plaintiffs are likely to succeed on the merits of their claims. Plaintiffs presented their arguments for likelihood of success on the merits in their recent Emergency Motion for Preliminary Injunction and refer the Court to the relevant section of that Motion in order to avoid submitting duplicative materials to the Court. E.C.F. No. 61-1.
iv) No undue burden would be imposed on Defendants if Plaintiffs’ requests for expedited discovery were granted. Through their request for expedited discovery, Plaintiffs seek additional evidence of Defendants’ noncompliance with the Court’s Order Plaintiffs seek specific, limited discovery,
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such as testimony from NOLA ICE officials responsible for in implementing compliance with the Court’s Order and the Directive; information about systems in place, methods used to track processing and outcomes of parole applications, and existing measures for accountability and transparency during the parole-adjudication process. As Defendants employ numerous officials to carry out these functions, such as officers who collect and review parole applications, it should not be overly burdensome for Defendants to produce employees who would have knowledge on the issues Plaintiffs seek to clarify through expedited discovery.
Furthermore, Defendants are legally required to compile and retain data and information pursuant to The Federal Records Act (hereinafter “the Records Act”). See “The Federal Records Act”, 44 U.S.C.A. § 3101 (stating that “the head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities”). Defendants are also prohibited by law from, “willfully and unlawfully concealing, removing, or destroying” any records, paper, document in any public office, or risk fines or imprisonment. 18 U.S.C. § 2017. 7 Records possessed by federal agencies, such as Defendants, should not have been destroyed, as procedures under the law authorizing disposal of records required digital copies to be made and procedures to be followed prior to disposal of original records. 44 U.S.C. § 3302. “Records” are defined by 44 U.S.C. § 3301 as “includ[ing] all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and
7 Plaintiffs clarify that, though it is within their right to request imprisonment or fine as sanctions in this motion, they forego exercising it in order to expedite resolving Defendants’ noncompliance and preventing the continued irreparable harm to Plaintiffs-class members that it has caused.
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preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them,” and would therefore encompass the information on the parole process which Plaintiffs seek. Id. Thus, as it is required by law that federal agencies such as Defendants, NOLA ICE, maintain such records, it should not be unduly burdensome for Defendants to produce those records in response to a request for expedited discovery.
This Court’s Order does not require – nor are Plaintiffs asking – Defendants to take on any new responsibilities or burdens. Defendants have repeatedly complained about burdens associated with compliance with the Court’s record-keeping requests, raising the burden of administrative costs and lack of resources as excuses for not including additional information – such as the language spoken by class members – in their monthly reports. See Ex. 28;8 see also Ex. 29; Directive. Yet, under administrative law, Defendants, like any agency which promulgates directives, have always had the obligation to fully comply with the Directive, including its recordkeeping requirements. See Pl.[s’] Emergency Mot. for Prelim. Inj., at p. 27-41 (ECF. No. 61-1).
Thus, the burden of compliance with this Court’s Order, the very subject upon which Plaintiffs seek discovery, is no greater on Defendants than the burden of complying with the law. Therefore,
8 See Ex. 28 at 4-5, 14-17 (identifying, as Plaintiff’s Counsel, that Defendants failed to disseminate information about parole as ordered by the Court, and took an unreasonable length of time to communicate to the Court that this noncompliance arose from a lack of clarity, despite previously agreeing that the Court’s order and instructions were unambiguous); Id. at 17-20 (arguing, as Defendants’ Counsel, that it is not Defendants’ responsibility to provide advisals in a language understood by class members); Id. (failing, as Defendants Counsel, to address the Court’s assertion that an interpreter should be provided to interpret untranslated advisals); Id. at 20, lines 19-22 (showing, as Plaintiffs’ Counsel, that parole advisals existed in Spanish only because Plaintiffs’ Counsel provided written translations after Defendants refused to meet this obligation).
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there should be no difficulty in responding to requests for demonstration of that compliance. Compliance with the law is a duty which Defendants cannot escape no matter how burdensome they may argue it is. But given Defendants’ existing record-keeping requirements, Plaintiffs’ request for expedited discovery would not cause any undue burden to Defendants.
2) Plaintiffs’ request for expedited discovery satisfies the “reasonableness” test, indicating that they merit such expedited discovery. The “reasonableness test” calls for the Court to decide the appropriateness of expedited discovery based on “the reasonableness of the request in light of all of the surrounding circumstances ...” In re Fannie Mae Derivative Lit., 227 F.R.D. at 142 (citing Entm’t Tech. Corp. v. Walt Disney Imagineering, No. 03-3546, WL 22519440, at 3-5 (E.D. Pa. 2003)). The factors to be considered by the Court in making that determination include: i) whether a preliminary injunction is pending; ii) the breadth of the discovery requests; iii) the purpose for requesting the expedited discovery; iv) the burden on the defendants to comply with the requests; and v) how far in advance of the typical discovery process the request was made. Id. at 143. (citing Entm't Tech., 2003 WL 22519440, at 3-5). Plaintiffs seek discovery on two particular subjects: 1) discovery regarding the methods used for collection of parole applicant data, and 2) discovery regarding the implementation of Directive procedures and safeguards, required by the Court’s Order. i) No preliminary injunction is pending in Heredia-Mons. At this time, no preliminary injunction is pending. ii) Plaintiffs’ expected discovery requests are within the scope of and narrowly tailored to the Court’s Order, thus the breadth of Plaintiffs’ requests is appropriate in scope. Plaintiffs’ discovery requests are narrowly tailored to reveal information specifically related to the Court’s Order. Guttenberg v. Emery, 26 F.Supp. 3d 88, 98 (D.D.C. Mar. 19, 2014). The answers
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and subject matter being sought by Plaintiffs does not exceed the scope of the Court’s Order, which required: individualized determinations of whether class members present a flight risk or danger to community when determining parole grant or denial (not categorical or automatic determinations), determinations based on the specific facts of each provisional class member’s case, and Defendants to conform to all of the substantive and procedural requirements of the Directive. ECF No. 32; see Guttenberg v. Emery, 26 F.Supp 3d 88, 98 (Mar. 19, 2014).
Plaintiffs’ discovery requests are firmly ensconced within the bounds set by the Court’s Order. See Guttenberg v. Emery, 26 F. Supp 3d. at 98 (stating that Plaintiffs’ discovery requests needed to be narrowly tailored to reveal information related to the preliminary injunction, as opposed to the case as a whole). Plaintiffs have delineated that they seek only information related to Defendants’ compliance with the Directive pursuant to the Court’s Order.
For example, deposition testimony from deportation officers would provide insight into the parole determinations process; the systems that are in place to record and track parole determination outcomes; knowledge of how such systems are utilized and implemented with regard to the parole process; identification of NOLA ICE officials responsible for making these determinations in the parole process; and identification of the individuals responsible for implementing accountability measures regarding the parole process. Thus, the requests for expedited discovery are tailored to and exist within the scope of this Court’s Order. ECF No. 33 ¶¶3-5. As Plaintiffs’ expected discovery requests are tailored to and within the scope of this Court’s Order, the breadth of Plaintiffs’ requests is appropriate and should be granted.
iii) Plaintiffs seek expedited discovery for the purpose of enabling the parties and Court to determine how best to develop a plan of action to bring Defendants into full compliance. Through the requested expedited discovery, Plaintiffs seek to bring Defendants into compliance to avoid further irreparable harm to Plaintiffs. The information Plaintiffs seek through
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expedited discovery would enable the Court and the Parties to identify the exact processes and procedures that Defendants are implementing to comply with the Court’s Order, and the areas where compliance is lacking. Section IV(A)(1)(ii) of this Memorandum sheds light on how a grant of expedited discovery would result in the avoidance of further irreparable harm to the Plaintiffs. Because Plaintiffs seek expedited discovery for the ethical and lawful purpose of establishing and remedying Defendants’ noncompliance, Plaintiffs request should be granted.
iv) Plaintiffs allow ample time for Defendants to comply with their request for expedited discovery. Plaintiffs satisfy both tests recognized by this Court for the granting of expedited discovery but have not yet submitted a formal motion for specific discovery. Furthermore, Plaintiffs leave to the judgement of the Court the determination of appropriate deadlines for the expedited discovery requested should the Court grant this motion. Plaintiffs and their counsel ask the Court, on behalf of all class members, to consider that each passing day is another day upon which unnecessary confinement deteriorates class members’ physical and mental health, violates their civil rights, and inhibits the preparation of their asylum cases to the best of their abilities causing irreparable harm.
B. Plaintiffs’ claims merit the appointment of a Master to monitor and evaluate Defendants’ noncompliance, as well as provide and implement solutions to obtain full compliance. Under Fed. R. Civ. P. 53, Plaintiffs may seek the appointment of a Master to oversee Defendants’ failure to comply with the Preliminary Court’s Order. A Master is a judicial adjunct used to aid the judge in the performance of specific judicial duties, such as ensuring enforcement of their orders and decrees. La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957). A court may appoint a master pursuant to the court’s inherent authority in fashioning equitable remedies. See Ex parte Peterson, 253 U.S. 300 (1920). Masters are obligated to be impartial and objective in the pursuit of their duties. See Newton v. Consol. Gas Co. of N.Y., 259
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U.S. 101 (1922) (explaining that a Master “occupies a position of honor, responsibility, and trust; the court looks to him to execute its decrees thoroughly, accurately, impartially, and in full response to the confidence extended…”); Fed. R. Civ. P. 53(a)(2). The Court must give the parties notice and an opportunity to be heard before appointing a Master. Fed. R. Civ. P. 53(b)(1).
Pursuant to the Federal Rules of Civil Procedure, the Court must also issue an appointing order, directing the master to proceed with “all reasonable diligence” and must state various details regarding the conduct of the master, including duties, limitations, conditions for ex parte communication, the nature of materials to be preserved and filed, time limits, filing methods, and compensation. Fed. R. Civ. P. 53(b)(2)(A)-(E). Unless the appointing order directs otherwise, a master may regulate proceedings, take appropriate measures to perform the assigned duties fairly and efficiently, and exercise the appointing court’s power to compel, take and record evidence. Fed. R. Civ. P. 53(c)(1)(A)-(C).
i) Defendants have had numerous, and sufficient, opportunities to be heard prior to Plaintiffs’ present request for relief, including the appointment of a Master. Defendants have had many opportunities to be heard prior to Plaintiffs’ request for this Court to appoint a Master. Defendants had the opportunity to be heard during the hearing on the Motion for Preliminary Injunction, and this Court has presided over various status conferences where the parties discussed the progress of Defendants’ compliance with the Court’s Order. During a second emergency preliminary injunction hearing necessitated by the COVID-19 pandemic, the Court stated to Plaintiffs that a motion for contempt would be a more appropriate venue for bringing a claim of non-compliance against Defendants. See Transcript of Apr. 23, 2020, Status Hearing, Heredia Mons v. McAleenan, 2019 WL 4225322 (Nov. 8, 2019) (No. 19-1593 (JEB)); Therefore, the requirement for parties to be heard prior to the appointment of a Master has been amply satisfied.
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ii) This Court has established that a Master may be appointed where a party fails to comply with a court order, such as Defendants have failed to comply in this case. This Court has established that a Master may be appointed where a party fails to comply with a court order. In Evans v. Fenty, 480 F.Supp.2d 280 (D.D.C. 2007), this Court appointed multiple masters to make findings and recommended solutions addressing defendants’ non-compliance. Evans dealt with failure to comply with a consent decree and consent orders. Plaintiffs in Evans filed a motion to find defendants in noncompliance and appoint a receiver. The Court concluded that there had been “systemic, continuous, and serious noncompliance with many of the Court’s Orders” meriting the appointment of Masters. Evans, 480 F. Supp.2d at 325. Unlike the defendants in Evans, Defendants have never admitted to violating the Court’s Order or Directive. They instead allege they are in compliance with the Directive and have shown no willingness to cooperate with Plaintiffs to mitigate any harm. Cf. Id. at 282 (admitting that defendants acknowledge the level of care and habilitation has never been that which any of the parties to the action desire); see also supra note 4.Any improvements in the rate of parole grants appear to be the result of this Court’s actions to urge Defendants’ compliance. Id. While in Evans, the parties jointly agreed to a “Plan for Compliance,” Defendants’ unwillingness to cooperate necessitates deeper court involvement and orders mandating Defendants compliance. Id. See also ECF No. 32, ECF No. 33; see also Ex. 28. Defendants in this case, unlike in Evans, have never acknowledged their noncompliance, even after the Court found that Plaintiffs’ were likely to succeed in proving that Defendants were in violation of the Directive. See Ex. 28 at 6, lines 6-10, supra note 4; see also Ex. 29 at 27-29. It is therefore not surprising that Defendants are not close to achieving compliance several months after this Court ordered compliance. Exs. 1A-1Q.
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Defendants’ continued noncompliance further accentuates the need for a Master, as Defendants appear unmoved by the Court’s Order, and refuse to take remedial action when Plaintiffs have raised concerns involving compliance with the Court’s Order. Therefore, as Defendants have repeatedly demonstrated their unwillingness to address on their own issues of noncompliance that Plaintiffs have raised, voluntary measures as in Evans would not be sufficient to enforce compliance with the Court’s Order. See Exs. 28-38, supra notes 4, 9.
iii) Despite copious circumstantial and statistical evidence to the contrary, demonstrating rampant abuse of the parole process, little improved parole rates, and violation of this Court’s Order, ICE maintains that it is nonetheless in compliance with this Court’s Order, and in turn, with the Directive. Disconcertingly, Defendants refuse to acknowledge that they are not in compliance with the Court’s Order and the Directive. Supra note 4. Defendants point to an increase in parole-grant numbers for the NOLA ICE region. But, the monthly reports on which Defendants rely to show compliance contain inaccurate information or omit data, calling into question the reliability of these reports. See Exs. 1A-1Q.
a) Plaintiffs’ counsel have provided ample evidence of rampant abuse and violation of the parole process by Defendants, as even DHS has reported ICE cannot be relied upon to provide the kind of accurate data and information that would serve as direct evidence in Mons.
Defendants have also called into question the numerous declarations by Plaintiff asylumseekers, detailing the harms to which they are exposed in prolonged detention, and the numerous ways that Defendants continue to disregard the Court’s Order and the Directive. See Ex. 28 at 6, lines 6-10, supra note 4. When this Court has called upon Defendants to maintain accurate records about their processes, Defendants have not been responsive to the challenge. Thus, it is unlikely that Defendants would provide direct evidence of their noncompliance without an order from this Court.
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b) Without this Court ordering expedited discovery, Plaintiffs would be unable to access evidence regarding Defendants’ parole processes and policies, and their efforts to comply with the Court’s Order and consequently, the Directive.
Due to the lack of access to Defendants’ processes and records, Plaintiffs have had to rely on witness declarations and exposing the unreliability of Defendants’ monthly reports, which they submit only because this Court has ordered it. Supra section II.B., II.C.
iv) DHS itself has acknowledged ICE’s failure and indifference to ensuring accountability, adequate recording of data, compliance with its policies and standards, and imposition of remedial measures where noncompliance exists.
ICE has pre-existing, systemic, and long-entrenched failures to conduct meaningful oversight, which have recently been reported in government reports.9 DHS, the government agency of which ICE is a component and which is a Defendant in the present case, has reported on failures by ICE to manage, impose consequences upon, and ensure accountability of those it trusts to implement its policies, procedures, and standards. As recently as January 2019, DHS released a report discussing ICE’s failure to hold detention facility contractors accountable for failing to meet ICE standards, and its apparent apathy regarding noncompliance with these policies, procedures, and standards. While the report specifically discusses ICE’s apathy and lack of accountability regarding the discriminatory conduct in which its contractors allegedly engage, the report nonetheless speak volumes about the overall systemic misconduct in which ICE engages and its permissiveness and apathy toward violations of its policies, procedures, standards, which impact the rights and safety of the detainees in its care.
9 See e.g. Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-19-18: ICE Does Not Fully Use Contracting Tools to Hold Det. Facility Contractors Accountable for Failing to Meet Performance Standards, at 5 (Jan. 29, 2019), available at https://www.oig.dhs.gov/ sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf; see also Off. Of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-55: Immigr. and Customs Enf’t Did Not Follow Fed. Procurement Guidelines When Contracting for Det. Servs., at 19 (Feb. 21, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53-Feb18.pdf.
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Government reports expose that ICE, in practice, does not adequately require those it entrusts to comply with its policies, procedures, and standards, nor does it implement accountability for noncompliance with those measures. This is the reality of ICE’s conduct, despite ICE’s claims on paper that it employs management, oversight, and accountability systems. OFF. OF INSPECTOR GEN., supra note 10. This level of apathy and inaction endangers Plaintiffs, who also cannot trust ICE to ensure that violations of the Directive are prevented, addressed and resolved, to spare them from the harm of unnecessary prolonged detention.
DHS has revealed ICE’s unreliability and failure to properly keep and utilize data. Not only has DHS reported that ICE fails to track and use data to analyze effectiveness, it has also reported that ICE has sometimes failed to gather or keep data at all. Id. at 11. DHS has also reported lack of direct access to important files and information controlled by ICE, which has prevented “key stakeholders” from obtaining said information, despite ICE being required by DHS to maintain such recording systems. Id. at 17. Even more concerning, is the statement by DHS that it sometimes has “no way of verifying whether any of [the] deficiencies ha[ve] been corrected.” Id. at 11.
This report by DHS exposes that ICE is either unable or unwilling to provide transparency to the details of the processes in which it engages, particularly with respect to creating exceptions to and allowing noncompliance with ICE policies, procedures and standards. Id. at 12. If even DHS itself cannot obtain data from ICE, an agency within its control, Plaintiffs and the Court are even less likely to obtain data and information absent expedited discovery and the appointment of a Master.
In addition to failure to be transparent by not keeping, analyzing, and providing data, DHS reports show that ICE officials fail to communicate effectively across its internal departments. Id. at 15. Poor internal communication within ICE leads to confusion, misinformation, and failure to
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disseminate information. So, it is therefore not a surprise that Plaintiffs report not receiving parole adjudications, or experiencing difficulty identifying and contacting NOLA ICE officials responsible for their parole adjudications. Id. at 15; see also Exs. 2-18.
While Plaintiffs recognize that the report by DHS involves ICE’s engagement with contractors, Plaintiffs nonetheless reiterate that the lack of accountability for violation of policies, procedures, and standards that ICE displays in the report is similar to NOLA ICE’s approach in this case. ICE’s rampant ineffectiveness, lack of accountability, and worst of all, apathy towards disregard for the standards, policies and guidance reported by DHS demonstrates that neither DHS nor ICE can be entrusted with the enforcement of measures to the extent necessary to ensure compliance with the Court’s Order. Since DHS itself provides ample evidence that ICE cannot be trusted to implement its own internal accountability measures, and DHS has no control over such failure by ICE, Defendants conduct, both systemic and particular to this case, necessitates the appointment of a master to obtain compliance with the Court’s Order.
v) The efficacy of the Master is not diminished by the unprecedented circumstances that the pandemic presents. Plaintiffs assert that a Master would be capable of playing an important role in securing compliance by Defendants during the duration of the pandemic, despite the limitations on travel to detention facilities in the NOLA ICE region. Defendants can provide the Master with a list of the relevant NOLA ICE officials from whom he or she can seek information on compliance, and with whom he or she can work to ascertain both relevant policies and systems in place, as well as determine whether Defendants are actually implementing these on a consistent basis. For example, a Master could be provided with lists, on a rolling basis, of reviewing officers, deportation officers, field officers, and all officials employed by Defendants and engaged in the parole process. Additionally, NOLA ICE can provide the Master
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lists, on a rolling basis, of the individuals detained at each center under Defendants’ custody who qualify for parole determinations; information on the dates that applications are submitted, their statuses, notes taken during review of applications or from ICE-initiated parole determinations; copies of receipts confirming submissions; and a log containing dates of receipt of parole applications and the determination dates. Using the lists and data, as well as other information he or she may determine is needed, a Master could conduct interviews to evaluate compliance, identify problem areas, and develop tailored resolutions to issues inhibiting full compliance. After the resolution of the pandemic, a Master could safely conduct detention center visits. V. CONCLUSION
Class members continue to be vulnerable at the hands of Defendants, and they again place their faith in the justice system. For the foregoing reasons, Plaintiffs request that this Court require Defendants to show cause that they are not in contempt of the Court’s Order, order expedited discovery to determine the extent of Defendants’ contempt, and appoint a Master to ensure that Defendants do not continue to disavow their legal responsibilities to this Court.
Respectfully Submitted: //s// Luz Virginia López
Luz Virginia López Melissa Crow (D.C. Bar No. 453487) SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
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CERTIFICATE OF SERVICE I hereby certify that, on May 13, 2020, I electronically filed the attached MEMORANDUM IN SUPPORT OF THE PLAINTIFFS’ MOTION FOR AN ORDER TO SHOW CAUSE, EXPEDITED DISCOVERY, AND APPOINTMENT OF SPECIAL MASTER with the Court via the CM/ECF system, which will send a Notice of Electronic Filing to all CM/ECF registrants for this case.
Respectfully submitted:

Michelle P. Gonzalez Victoria Mesa-Estrada SOUTHERN POVERTY LAW CENTER 2 S. Biscayne Blvd., 32nd Floor Miami, FL 33131 Tel: (305) 537-0579 mich.gonzalez@splcenter.org victoria.mesa@splcenter.org
Bruce Hamilton AMERICAN CIVIL LIBERTIES UNION OF LOUISIANA FOUNDATION P.O. Box 56157 New Orleans, LA 70156 Tel: (504) 522-0628 bhamilton@laaclu.org

//s// Luz Virginia López Luz Virginia López Melissa Crow (D.C. Bar No. 453487) SOUTHERN POVERTY LAW CENTER 1101 17th St., NW, Suite 750 Washington, DC 20036 Tel: (202) 355-4471 luz.lopez@splcenter.org
Attorneys for Plaintiffs

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 Case 1:19-cv-01593-JEB Document 82 Filed 06/16/20 Page 1 of 45

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Heredia Mons, et al., Plaintiffs,
v. Chad Wolf, et al.,
Defendants.

)

)

)

)

No. 19-cv-1593 (JEB)

)

)

)

)

)

DEFENDANTS’ OPPOSITION TO MOTION TO SHOW CAUSE, FOR EXPEDITED DISCOVERY AND FOR APPOINTMENT OF SPECIAL MASTER Defendants Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security (“DHS”); Matthew T. Albence, Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement (“ICE”); Enrique M. Lucero, Executive Associate Director of ICE Enforcement and Removal Operations; and Diane L. Witte, Director of ICE’s New Orleans Field Office, in their official capacities (collectively, “Defendants”), file this opposition to Plaintiffs’ motion to show cause, for expedited discovery and for appointment of a special master.
SUMMARY OF ARGUMENT On September 5, 2019, this Court granted Plaintiffs’ motion for preliminary injunction and entered an order that, in relevant part, enjoined Defendants “from denying parole to any provisional class members absent an individualized determination, through the parole process, that such provisional class member presents a flight risk or a danger to the community.”1 The

1

Although the Court’s order does not reference insufficient proof of identity as a basis for

a parole denial, that remains a basis for denying parole under the Parole Directive (Parole

Directive ¶¶ 6.2, 8.3) and ICE does not understand the Court to have ruled otherwise.

Case 1:19-cv-01593-JEB Document 82 Filed 06/16/20 Page 2 of 45
order further provided that “individualized determinations of flight risk and danger to the community referenced above shall be based on the specific facts of each provisional class member’s case” and “shall not be based on categorical criteria applicable to all provisional class members.”
On May 12, 2020, Plaintiffs filed a Motion for an Order to Show Cause, Expedited Discovery, and Appointment of Special Master, asserting non-compliance with the September 5, 2019 order. Plaintiffs, however, have failed to demonstrate by “clear and convincing” evidence that Defendants are in violation of that order.
The Complaint in this case, as pled by Plaintiffs, is limited to two claims under the APA based on ICE’s alleged categorical denial of parole for asylum seekers who have been issued a credible fear determination and who are detained at facilities within ICE’s New Orleans Field Office. Specifically, Plaintiffs alleged that, at the time the Complaint was filed in May 2019, DHS had “effectively rescinded the 2009 Parole Directive” in the New Orleans Field Office and that the parole determinations pertaining to them, as well as to members of the putative class, were denied categorically without an individualized determination. (Compl. ¶¶ 129-137) The above-cited aspects of the Court’s preliminary injunction order sought to address these allegations, which is how Plaintiffs framed their claims before the Court.
Following the Court’s preliminary injunction order, Defendants have provided monthly reports providing data on the parole determinations made during the period specified in the reports and, as to those determinations, a breakdown of the number of determinations that were denials and the number in which parole was granted. Plaintiffs acknowledge that recent monthly reports by the agency reflect parole grant rates approaching (and even exceeding) 40
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Case 1:19-cv-01593-JEB Document 82 Filed 06/16/20 Page 3 of 45
percent at some facilities. (ECF No. 74-16) (Plaintiffs’ chart of redetermination grant rates by facility) Based on this Court’s prior analysis, which considered the near-zero parole grant rate to be indicative of non-compliance with the Parole Directive, this substantial increase in grant rates demonstrates that individualized determinations are occurring consistent with the Court’s September 5, 2019 order.2 Indeed, Plaintiffs’ own anecdotal evidence reflects this as well. (ECF No. 74-29, Crawford Decl. at ¶ 3(d) (referencing a grant of parole after an ICE officer reconsidered a denial when the detainee provided additional information regarding the detainee’s individual circumstances); see also Def. May 26, 2020 Report, Ex. A to Metoyer Decl., reflecting that A.P.E. (declaration at ECF No. 74-21) was granted parole on April 30, 2020; Hartnett Decl. ¶ 23 stating that K.S.R. (declaration at ECF No. 74-18) was granted parole on May 29, 2020 and id. ¶ 30 stating that M.P.I. (declaration at ECF No. 74-20) was granted parole on May 15, 2020). Accordingly, Plaintiffs have failed to demonstrate by “clear and convincing” evidence non-compliance with the requirement in the Court’s September 5, 2019 order that ICE conduct individualized parole determinations.
The September 5, 2019 order also stated more generally that “Defendants shall provide provisional class members with parole determinations that conform to all of the substantive and procedural requirements” of the 2009 Parole Directive. Although alleged deficiencies in parole procedure are not the focus of Plaintiffs’ APA claims in this litigation, and were referenced only

2

Defendants continue to maintain that the use of grant rates as a benchmark for

compliance with the Parole Directive is improper, but, as that is something that this Court (and

Plaintiffs) have previously relied on as being indicative of non-compliance over Defendants’

objection, consistency demands that the Court likewise recognize that a substantial increase in

grants necessarily is evidence of compliance.

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tangentially in the Complaint and original preliminary injunction motion, they are the principal focus of Plaintiffs’ contempt motion. (Pl. Mem. at 1, listing procedural non-compliance as the first ground for the motion). Plaintiffs are thus relying on the generalized language in that order that ICE “conform to all of the substantive and procedural requirements” of the Parole Directive to search for a reason to move for contempt. While they profess that they do not move for contempt “lightly” (Pl. Mem. at 4), the focus of their motion demonstrates otherwise.
The breadth of alleged procedural issues on which Plaintiffs base their contempt motion – extending even to maintenance of detainees’ A-files (Pl. Mem. at 12) – demonstrates how far Plaintiffs stray from the narrow focus of this lawsuit and raises significant questions as to whether Defendants have been fairly placed on notice of such issues. Although the September 5, 2019 order references “all” procedural requirements in the Parole Directive, that language is reasonably understood in the context of the narrow issues raised in the Complaint as referring to procedures that facilitate individualized parole determinations and as not reaching to administrative matters such as maintenance of the A-file. In that regard, the Complaint and original preliminary injunction motion concerned the following alleged procedural deficiencies: the alleged failure to provide a parole advisal, the alleged failure to afford an initial interview, the alleged failure to provide sufficient time to provide documentation, the alleged failure to provide a detailed explanation for parole denials, and the alleged failure to issue a written parole decision. (Compl. ¶¶ 60, 64, 70, 75, 79, 93, 102, 103, 108, 112; see also ECF No. 22-1 at 1012) The Court should thus reject Plaintiffs’ position that absolute perfection in every parole procedure over thousands of detainees is the measure by which compliance with this Court’s September 5, 2019 order should be judged.
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In any event, as discussed below, Plaintiffs’ arguments as to alleged procedural noncompliance are exaggerated, misleading and weighted towards conduct occurring in the period immediately after issuance of the September 5, 2019 order rather than the more recent (and more relevant) time period. They also are largely based on Plaintiffs’ preferred interpretation of the Parole Directive’s procedural requirements rather than explicit language in the Directive. However, because a contempt motion requires non-compliance with a “clear and unambiguous” court order, and the order at issue incorporates generally the “procedural” requirements of the Parole Directive, the Court’s analysis is limited by the precise terms of the Parole Directive. Plaintiffs’ interpretation of ambiguities in the Parole Directive to create additional procedural requirements not clearly specified in the Directive cannot form the basis for a finding of contempt even were the Court to consider Plaintiffs’ interpretation to be a reasonable one.
Plaintiffs also fail to consider the volume of determination requests being processed. Since the issuance of this Court’s September 5, 2019 order, the New Orleans Field Office has issued approximately 1,700 parole decisions on redetermination requests made following the Court’s order and issued over 700 initial parole determinations. (Hartnett Decl. ¶¶ 32-33; see also ECF No. 74-15 (Plaintiffs’ table showing over 2,000 parole decisions for the period ending April 16, 2020). That translates to approximately 2,400 parole determinations in a roughly eight month time period. In comparison, only 229 determinations were made for all of 2016 according to Plaintiffs’ graphs (ECF No. 74-1, 74-9), which Plaintiffs treat as the benchmark for alleged “compliance” with the Parole Directive.
During this eight month time period, moreover, ICE’s resources have been stretched thin not only by the volume of determination requests, but by high turnover rates of staff within the
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New Orleans Field Office and, more recently, the demands associated with the recent COVID-19 situation. (Hartnett Decl. ¶¶ 7, 15, 35) Under these circumstances, even if Plaintiffs could identify some instances in which ICE has been delayed in responding to requests or otherwise failed to fully meet the letter of the Parole Directive, that is not “clear and convincing” evidence of non-compliance with this Court’s order.
Plaintiffs also devote much of their so-called evidence challenging the sufficiency of the explanation that ICE provides in its denial letter which follows a standard form. But the Parole Directive requires only a “brief explanation” of the reason for a denial (Parole Dir. ¶ 6.5), and nothing in this Court’s September 5, 2019 order requires ICE to provide explanations beyond those set forth in its form denial letter. Plaintiffs’ preference for a more lengthy explanation of parole denials is not “clear and convincing” evidence of non-compliance with this Court’s order. In the same vein, Plaintiffs make several arguments that go to the merits of the parole decisions themselves, contending, for instance, that ICE fails to give sufficient weight (in Plaintiffs’ view) to certain factors over others. However, this Court lacks jurisdiction to evaluate individual parole determinations, which are discretionary determinations made by ICE, as this Court has previously held.
For all of these reasons, which are addressed more fully below, the Court should deny Plaintiffs’ show cause motion, and also should deny Plaintiffs’ request for expedited discovery and appointment of a special master.
FACTUAL AND PROCEDURAL BACKGROUND This case as pled by Plaintiffs is limited to two claims under the APA based on ICE’s alleged categorical denial of parole for asylum seekers who have been issued a credible fear
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determination and who are detained at facilities within ICE’s New Orleans Field Office. Specifically, Plaintiffs alleged that, at the time the Complaint was filed in May 2019, DHS had “effectively rescinded the 2009 Parole Directive” in the New Orleans ICE Field Office and that the parole determinations pertaining to them, as well as to members of the putative class, were denied categorically without an individualized determination. (Compl. ¶¶ 129-137) In support of these claims, they alleged that parole was denied in “virtually all cases in 2018” (Compl. ¶ 48) and also cite to a statement made in November 2018 by the Assistant Field Office Director for the New Orleans Field Office, Brian Acuna, that they view as an admission that the New Orleans Field Office was not following the directive at that time.3
Plaintiffs argued that the alleged “categorical denial” of parole violates the provisions of the Parole Directive, which Plaintiffs contend imposes certain requirements on ICE in the manner by which it exercises its discretion in making parole determinations that are subject to that directive. As this Court has previously recognized, by statute the decision whether or not to grant parole under any of the subsections of 8 C.F.R. § 212.5(b) is a discretionary one that is not subject to judicial review under the APA. See Damus v. Nielsen, 313 F. Supp. 3d 317, 327 (D.D.C. 2018) (“[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”). This Court, however, has permitted Plaintiffs’ APA claims here to proceed

3

Mr. Acuna has clarified that he misspoke in connection with the response that he

provided in November 2018, and confirms that all offices within the New Orleans area of

responsibility are adjudicating parole requests in accordance with the 2009 parole directive.”

(ECF No. 26-3, Acuna Decl. ¶ 14) In any event, this allegation does not speak to whether ICE

currently is complying with the Parole Directive.

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because Plaintiffs purportedly are not challenging individual parole determinations but instead challenge more narrowly the agency’s alleged practice of categorically denying all parole requests (and thus not engaging in individualized determinations).
Plaintiffs’ APA claims4 thus survived Defendants’ motion to dismiss solely on the basis of the “Accardi doctrine,” which, as applied by this Court,5 can form the basis for an APA claim when an agency allegedly fails to follow guidelines that it has established to govern the agency’s discretionary decisionmaking. (ECF No. 32, Mem. Op. at 18) Relying on the Accardi doctrine, this Court found the Parole Directive to constitute binding guidance over the agency’s discretionary decisionmaking in parole determinations, and thus permitted Plaintiffs to proceed with their APA claim based on Plaintiffs’ allegations that ICE failed to conduct individualized parole determinations and instead followed a practice of categorically denying parole contrary to the directive. (ECF No. 32, Mem. Op. at 19)
On September 5, 2019, this Court also granted Plaintiffs’ motion for preliminary injunctive relief which was based on, and necessarily framed by, the allegations in the Complaint, and ordered ICE to conduct individualized parole determinations in accordance with the provisions of the Parole Directive. In a separate order dated October 7, 2019, the Court directed ICE to provide monthly reports “in the manner” that Defendants had proposed in the parties’ October 2, 2019 status report. Since that order, ICE has been providing monthly reports

4

Plaintiffs also asserted a claim for violation of due process under the Fifth Amendment

for alleged non-compliance with the procedures of the Parole Directive, but the Court dismissed

that claim without prejudice by order dated September 5, 2019. (ECF No. 33)

5

Defendants continue to reserve their position that the Accardi doctrine is not applicable to

the Parole Directive, and are simply discussing above this Court’s ruling on Defendants’ motion

to dismiss.

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to the Court reflecting the rate at which parole is now being granted at its facilities within the New Orleans Field Office. ICE also has provided regular training to officers within the New Orleans Field Office. (Hartnett Decl. ¶¶ 8-9)
To the extent the Court views the grant rate as indicative of compliance, Defendants submit that the relevant time period for evaluating Plaintiffs’ motion is the more recent time period since January 2020. Indeed, at the hearing on January 7, 2020, the Court observed that it made sense to “wait a little longer” before drawing any conclusion about compliance with the Court’s order to allow for more data to be provided. (ECF No. 52, Tr. Jan. 7, 2020 at 23) Accordingly, Plaintiffs’ attempt to distort the recent, favorable statistical trend by asserting that the overall grant rate since the Court’s order is “a mere 13.5 percent” (Pl. Mem. at 4) mischaracterizes the question presented, which is whether Defendants currently are in compliance with this Court’s order.
Although Defendants recognize that the parole grant rate remained low for the first three months following this Court’s preliminary injunction order, the overall grant rate for the period since the first of the year has consistently exceeded 20 percent and has regularly approached 30 percent. In that regard, the report filed on February 24, 2020, which covered the period from early January 2020, reflected a grant rate for redeterminations of approximately 21 percent and a grant rate for initial determinations of approximately 37 percent for a combined rate of approximately 22.4 percent. The report filed on March 23, 2020, reflected a 29 percent grant rate for redeterminations and a 13.6 percent grant rate for initial determinations for a combined rate of approximately 27.4 percent. The report filed on April 24, 2020, reflects a grant rate for redeterminations of 18.5 percent (27 grants out of 146 requests), but also noted that an additional
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38 individuals were released as of April 20, 2020 pursuant to the individualized review of the specific COVID-19 risk factors. The April 24, 2020 report also reflected a grant of approximately 20 percent for initial determinations. The combined grant rate for this report is approximately 19 percent (45 out of 237) but approaches 30 percent when the additional 38 individuals are included as shown in the table below. Finally, the May 26, 2020 report reflects a grant rate of approximately 33 percent for redetermination requests and 13 percent for initial determinations for a combined rate of approximately 29 percent.

Grant Rate Percentage (Intial and Redeterminations)
35

30.2%

30

29.2%

27.4%

25 22.4%

20

Grant Rate Percentage

15

10

5

0 24-Feb-20

23-Mar-20

4/24/2020*

26-May-20

Status Report Filing Date

*includes the 38 individuals released pursuant to the COVID guidance

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Accordingly, for the last several months, ICE has been granting parole at rates approaching (and at times exceeding) 30 percent. In contrast, at the time this lawsuit was filed, the grant rate was near zero according to Plaintiffs’ allegations. (ECF No. 74-1) That evidence figured prominently in their allegation of “categorical” denials that formed the basis for their Complaint and this Court’s granting of preliminary injunctive relief. Under the same reasoning, the sustained increase in the parole grant rate over the last several months is evidence that ICE is making individualized parole determinations in accordance with the September 5, 2019 order.
LEGAL STANDARD Courts have “inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966). “A party moving for a finding of civil contempt must show, by clear and convincing evidence, that: (1) there was a court order in place; (2) the order required certain conduct by the defendant; and (3) the defendant failed to comply with that order.” Int’l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F. Supp. 35, 38 (D.D.C. 2010). A party moving for civil contempt must also show that the court’s “order was clear and unambiguous.” Id. Perfection, moreover, is not the standard. In re Fannie Mae Secs. Litig., 552 F.3d 814, 822 (D.C. Cir. 2009) (“contempt may be inappropriate when a party in good faith substantially complies with a court order”). Rather, “diligent, good faith efforts, culminating in substantial compliance” is sufficient to avoid a finding of contempt even if Plaintiffs were to meet their burden. Langton v. Johnson, 928 F.2d 1206, 1220 (1st Cir. 1991); see also Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990) (“Conduct that evinces substantial, but not complete, compliance with the court order may be excused if it was made as part of a good
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faith effort at compliance.”); Drywall Tapers, Local 1974 v. Local 530, 889 F.2d 389, 394 (2d Cir. 1989) (“A court may hold a party in civil contempt only if . . . ‘the defendant has not been reasonably diligent and energetic in attempting to accomplish what was ordered.’”); Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989) (“Substantial compliance with a court order is a defense to an action for civil contempt.”)
ARGUMENT I. Plaintiffs Have Failed To Demonstrate Non-Compliance By “Clear And
Convincing Evidence” As To Whether ICE Has Been Conducting Individualized Determinations As Required By The September 5, 2019 Order Plaintiffs appear to recognize that, since the beginning of 2020, the parole grant rate for facilities within the New Orleans Field Office has regularly approached 30 percent, a percentage that demonstrates compliance with the Court’s September 5, 2019 order. Indeed, that rate conclusively establishes that individualized parole determinations are occurring, that the Parole Directive is not being ignored, and that denials are not being issued on a “categorical basis.” See, e.g., R.I.LR. v. Johnson, 80 F. Supp. 3d 164, 174 (D.D.C. 2015) (JEB) (“Although these materials certainly do not reflect a large body of favorable release determinations, the Court is reluctant to find an across-the-board No-Release Policy when it appears that — at least in some small number of cases — ICE does grant bond on the basis of individualized considerations.”) While Plaintiffs may prefer a higher grant rate, that preference is not a basis for contending that Defendants are failing to conduct individualized determinations in violation of this Court’s September 5, 2019 order. Apparently recognizing this fatal flaw in their position, Plaintiffs make a series of arguments that attempt to suggest that the statistics being reported are not complete. Defendants
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address those specific arguments below. But, ultimately, these are arguments at the margins of these statistics. Plaintiffs are not disputing the actual number of parole grants reflected in the monthly reports. They instead contend, based on a handful of examples, that the denominator used to calculate the grant rate percentage should be larger to some unspecified extent. But nibbling at the edges of the statistics in this way does not change the material fact that the grant rate percentage has significantly increased since the Court’s September 5, 2019 order.
A. Plaintiffs Have No Basis To Argue For Contempt Based On Any Alleged Inaccuracy In Reporting.
Plaintiffs contend that Defendants have “defied this Court’s order to provide complete and accurate parole adjudication data via monthly reports filed with the Court.” (Pl. Mem. at 1) However, there is no such order that could provide the basis for a contempt motion. The applicable order is a minute order dated October 7, 2019, in which the Court directed, in relevant part, that “the Reports shall issue in the manner proposed by Defendants in the [October 2, 2019] Status Report.” Defendants have provided those reports “in the manner proposed by Defendants” in the October 2, 2019 status report, and Plaintiffs have not established otherwise. Accordingly, because Defendants are in compliance with that order, that order cannot provide a basis for a finding of contempt.
While Defendants have endeavored to provide complete and accurate reports, Defendants also made clear in the October 2, 2019 status report that compiling the data on parole denials can be challenging, particularly when done manually. And, although Defendants reported that they had developed the ability to prepare computer-generated reports to “provide more accurate information” than in the manual reports, they also explained that, due to “limitations” with that system, the computer-generated reports would be limited to initial parole determinations and that
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Defendants would continue to report on parole redeterminations through manually created reports. (ECF No. 35 at 1) The computer-generated reports also rely on the manual entry of data into the system and thus also are subject to human error. (Hartnett Decl. ¶ 34) Thus, in ordering Defendants to provide reports “in the manner proposed” in that status report, the Court did not mandate 100 percent accuracy or impose any “clear and unambiguous” threshold by which it would evaluate the reports’ accuracy or completeness.
B. The Alleged Inaccuracies Are Exaggerated Or Lack Support In The Record. As to the alleged inaccuracies themselves, those have been exaggerated by Plaintiffs or otherwise lack support in the record. Plaintiffs appear to make two main arguments regarding the completeness and accuracy of the monthly reports: (1) that “Data Provided by Defendants’ Shows Inconsistencies and Deficiencies in Record-Keeping and Reporting” and (2) that “Parole Redeterminations at Some Detention Centers Are Particularly Low and Have Only Shown Modest, Inconsistent Improvement in Parole Grants.” (Pl. Mem. at 18-20) Each is addressed below. 1. Alleged Inconsistencies and Deficiencies Plaintiffs make the disingenuous argument that the monthly reports are deficient because they do not reflect certain categories of information while failing to acknowledge that the Court never directed Defendants to include those categories. In that regard, Plaintiffs contend that: Reports for first-time parole decisions do not indicate reasons for denial, even though ICE must provide a reason for denial in every parole consideration. Directive at § 8.2. Reports for first-time parole decisions do not identify the facilities where asylum-seekers are detained. Relatedly, class members are often transferred, and their assigned DOs are frequently shifted. See generally Exs. 2-12. Defendants also fail to provide submission dates for parole redetermination requests, making it impossible to discern if they are in full compliance with the Directive, and thus, the Court’s Order.
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(Pl. Mot. at 31) But the content of Defendants’ monthly reports already have been addressed by the Court
and the items that Plaintiffs identify are not items that were to be included. The parties had set forth their respective positions on the contents of those reports in the Joint Status Report filed on October 2, 2019 (ECF No. 35), Defendants explained that there would be differences in the categories appearing in the manual spreadsheet (for redeterminations) and computer-generated spreadsheet (for initial determinations), and, by order dated October 7, 2020, the Court adopted Defendants’ proposal. Any arguments, therefore, regarding the categories of information provided in the reports should be summarily rejected as a basis for a finding of contempt.
Plaintiffs also contend that the monthly reports contain inaccuracies because (1) “no parole-request date is recorded for 10 first-time parole decisions” (citing Pl. Ex. 1O); (2) “some parole decisions are reported in parole redeterminations before the date each asylum-seeker entered ICE custody” (citing Pl. Ex. 1O); (3) “[a]t least 14 class members received parole-denial letters issued on dates that directly contradict the dates of denial reflected in Defendants’ monthly reports” (citing Pl. Ex. 23); and (4) “at least 17 parole denial decisions and at least 10 class members do not appear anywhere in Defendants’ monthly reports despite requesting parole sometime between October 9, 2019 and February 17, 2020” (citing Pl. Ex. 24 and Huber Decl. ¶ 2e). (Pl. Mem. at 18-19)6

6

Plaintiffs also reference errors in two parole decision letters and the length of time some

detainees have been detained. (Pl. Mem. at 19) But these issues do not demonstrate any

inaccuracy or deficiency in the monthly reports, nor are they evidence of non-compliance with

the Court’s September 5, 2019 order. The length of detention, moreover, is correlated to the

progress of an individual’s immigration proceedings, not any provision of the Parole Directive.

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These limited assertions reflect a nitpicking of portions of thousands of lines of data that ultimately are irrelevant to the parole grant rate reflected in the monthly reports. For the first two assertions, Plaintiffs cite to Exhibit 1O to their motion, which is a graph that purports to show “data reporting deficiencies.” According to that chart, out of 659 initial parole decisions for the referenced time period, there are only ten entries – or 1.5 percent – that do not reflect the parole request date. (Ex. 1O, ECF No. 74-15) Far from showing a deficiency in the data, that is evidence of its completeness given the volume of information provided. Likewise, as regards Plaintiffs’ contention that “some parole decisions are reported in parole redeterminations before the date each asylum-seeker entered ICE custody,” Plaintiffs’ chart shows this typographical error occurring in 10 instances out of approximately 1,400 redetermination decisions, or 0.7 percent, a fraction of a percentage. (ECF No. 74-15) Aside from the hypercritical nature of these arguments, these alleged errors have no bearing on the parole grant rate reflected in the monthly reports, which this Court has previously considered to be the measure of compliance.
Plaintiffs cite to Exhibit 23 to their motion to contend that “[a]t least 14 class members received parole-denial letters issued on dates that directly contradict the dates of denial reflected in Defendants’ monthly reports.” Exhibit 23 is a group of approximately 14 denial letters issued to detainees that has the name of the detainees as well as the detainees’ “A” numbers redacted. (ECF No. 74-41 to 74-54) Because unredacted copies of these exhibits were never filed with the Court or served on Defendants, neither the Court nor Defendants can assess the accuracy of this assertion. (ECF No. 75, identifying only a limited group of documents filed under seal without redactions) To the extent there are minor discrepancies in denial dates, as between the monthly reports and denial letters, that is likely the result of human error or the administrative
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delay between the issuance of a denial letter and the entering of data into the system. In any event, whatever the reason (which Defendants cannot address as a result of redactions), this contention likewise has no bearing on the grant rate reflected in the monthly reports.
Citing Exhibit 24 and the Huber declaration, Plaintiffs assert that “at least 17 parole denial decisions and at least 10 class members do not appear anywhere in Defendants’ monthly reports despite requesting parole sometime between October 9, 2019 and February 17, 2020.” (Pl. Mem. at 19) Exhibit 24 is a group of documents similar to those contained in Exhibit 23, with similar redactions, that also were not filed or served on Defendant in an unredacted form. (ECF No. 74-55 to 74-71) Although Defendants cannot assess the accuracy of this assertion in light of the redactions on these documents, it suffices to observe that, given the volume of parole decisions reflected in the monthly reports, the omission of 17 denials from the aggregate data would have no material impact on the parole grant rate. Moreover, the period referenced ends February 17, 2020, and thus would have no bearing on data in more recent months, which is more relevant to Plaintiffs’ assertion of current non-compliance.
Finally, Plaintiffs’ reference to the Huber declaration is misleading. In that declaration, the declarant attests that her organization submitted redetermination requests for 13 unidentified individuals at some unspecified dates during the period from October 14, 2019 to February 17, 2020, and that the names of only three appear in the monthly reports for that time period. (ECF No. 74-37, Hubert Decl. ¶ 2(e)). However, the manual spreadsheets referenced in the Huber declaration report on redetermination requests for which decisions have issued, not requests that have been submitted but that remain pending. See generally Ex. A to the monthly Metoyer Declarations. Plaintiffs fail to account for this distinction in making this contention.
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2. Grant Rates At Particular Detention Facilities Although their Complaint focused on aggregate grant rates for the New Orleans Field Office, Plaintiffs attempt to support their contempt motion by focusing on grant rates at particular facilities within the New Orleans Field Office. Notably, their purported “benchmark” statistics from 2016 do not include a facility-by-facility breakdown, rendering any purported comparison apples to oranges. (Compare ECF No. 74-1 and ECF No. 74-9 with ECF No. 7416) Aside from that threshold defect, Plaintiffs’ analysis is incomplete and misleading. Plaintiffs limit this argument to redetermination decisions. Plaintiffs assert that “[s]ome detention facilities report few to no parole redeterminations in any given month relative their population size compared with other detention facilities.” (Pl. Mem. at 20) As support, they contend that “LaSalle ICE Processing Center and LaSalle Correctional Center report detaining over 1,300 people as of April 2020, but report only 19 redeterminations from September 2019 to April 2020, in the post-injunction data provided by Defendants. Catahoula Correctional Center reports detaining over 700 individuals as of April 2020, but reports only 9 redeterminations from September 2019 to April 2020.” (Pl. Mem. at 20) (citing Ex. 1C and ECF No. 64-2) (citations omitted). The errors in this analysis are numerous. First, Plaintiffs’ combine LaSalle ICE Processing Center with LaSalle Correctional Center, when they are separate facilities.7 (ECF

7

In April 2020, LaSalle Processing Center had a current detainee population of 1080,

whereas LaSalle Correctional Center had a current detainee population of 225. (ECF No. 64-2)

For LaSalle Processing Center, Defendants reported in total only four redetermination decisions

for the entire period of its reporting to date (October 2019 to April 2020), all of which occurred

in April 2020. Of those, one was granted and three were denied. (Ex. A to Metoyer Decl.,

May 26, 2020 Status Report)

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No. 64-2; Hartnett Decl. ¶ 43, explaining that “arriving aliens who have established a credible fear are not normally transferred to the LaSalle ICE Processing Center”). Second, LaSalle Correctional Center and Catahoula are used as final orders facilities, meaning aliens are typically transferred to those facilities only after having received an order of removal as a prestaging for removal. (Hartnett Decl. ¶ 42) Accordingly, a low number of both redetermination requests and parole grants based on those requests would not be unexpected at these facilities.8
Third, Plaintiffs are obviously cherry-picking data. Plaintiffs reference the number of detainees “as of April 2020,” citing ECF No. 64-2 (filed April 7, 2020), but not the number of detainees at each facility during each month of the referenced eight month time period. (ECF No. 74-3) And, most significantly, Plaintiffs fail to identify how many detainees in each facility made redetermination requests during each month of the eight-month period reflected in their table. (Id.; ECF No. 74-16) Redeterminations do not occur automatically, but require a detainee to make an affirmative request for redetermination.9 Without the number of redetermination requests in a given facility in a given month, the Court cannot draw any adverse conclusions from the absolute number of redetermination decisions that have issued in any given facility.

8

The distinct function of LaSalle Correction Center adds context to the allegation by M.B.

that an officer at LaSalle stated there was “no parole here” and that there was a “99 percent

denial rate.” (ECF No. 74-27 at ¶ 12)

9

The proactive reviews that ICE has conducted in light of COVID-19, and as reflected at

ECF No. 66-1 (guidance dated April 4, 2020), are not redetermination requests that would result

in a redetermination denial letter if the review determined that continued detention remained

appropriate.

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In contrast to the analysis in the instant motion, Plaintiffs’ analysis in the status report

filed on April 2, 2020, is more illustrative but still not comprehensive. (ECF No. 63 at 2) That

analysis, which is copied below verbatim from the status report, focused on one 30-day period,

January 15, 2020 to February 15, 2020, and identified the parole grant rate by facility by

comparing the number of redetermination decisions against the number of parole grants that

were issued:

Detention Facility detainee population

and # of Parole # of parole Parole redeterminations

redeterminations redeterminations

grant approval rate (%)

received between granted

Jan. 15, 2020 and

Feb. 15, 2020

ACDC

55

7

12.73%

Jackson Parish

47

14

29.79%

Winnfield

145

47

32.41%

Richwood

40

14

35.00%

S. Louisiana

75

14

18.67%

River

38

13

34.21%

Pine Prairie

12

5

41.67%

LaSalle Correctional Ctr

4

0

0.00%

Catahoula

3

0

0.00%

Allen Parish

1

0

0.00%

Although LaSalle Correctional Center, Catahoula, and Allen Parish reflect a 0% grant rate for this 30-day period according to Plaintiffs’ analysis, the number of redetermination decisions made in those facilities for the referenced time period is too small of a sample size to draw any conclusions. Indeed, according to Defendants’ monthly reports, Allen Parish reported in total only two redetermination decisions for the entire period since the Court’s September 5, 2019 order. (Def. May 26, 2020 Report, Ex. A to Metoyer Decl.) One was the denial on February 26, 2020 reflected in the chart above, and the other was a parole grant on April 30, 2020. (Id.)

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In addition, LaSalle Correction Center also has had a low number of redetermination decisions over the eight-month period since the September 5, 2019 order – only an estimated 11 decisions, all of which were parole denials (Def. May 26, 2020 Report, Ex. A to Metoyer Decl.), a result that is not unexpected given the function of that facility. (Hartnett Decl. ¶ 42) During that same eight month time period, Catahoula has had approximately 25 redetermination decisions, of which eight were grants, for a rate of over 30 percent. (Def. May 26, 2020 Report, Ex. A to Metoyer Decl.; see also Hartnett Decl. ¶ 42, noting that “Catahoula’s recent uptick in parole adjudications have primarily been the result of reviews for release based on COVID-19”)
Accordingly, Plaintiffs’ argument is based on a cherry-picking of data and a failure to account for the distinct role of some facilities, which has the effect of reducing the overall redetermination grant rate. (Compare ECF No. 74-16) When the data is fully considered, it demonstrates that individualized determinations are occurring within the New Orleans Field Office consistent with this Court’s September 5, 2019 order.
C. Arguments Regarding Increased Reference To Flight Risk In Parole Denials As a further basis for their contempt motion, Plaintiffs contend that “Use of Flight Risk as a Reason for Denial Has Inexplicably Become Extensive.” (Pl. Mem. at 16) What is “inexplicable” is how this contention has any bearing on whether Defendants are in compliance with the Court’s September 5, 2019 order. That order did not set any limits on the use of “flight risk” as a basis for denying parole, nor could the Court have done so without infringing on the discretionary nature of the parole decision. ICE, moreover, has explained why “flight risk” would account for a large percentage of parole denials. (Hartnett Decl. ¶ 19)
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Plaintiffs’ argument boils down to the following conclusory assertion: “the reason for this percentage of flight-risk denials is unclear, but it evidently is not based on the individualized facts of parole redetermination requests. Supra section II.B1.iv., II.B.2., (individualized reasons for “flight risk” determinations were not provided to class members).” (Pl. Mem. at 17) As support, Plaintiffs cite “anecdotal evidence” consisting of two examples of class members (K.S.R. and M.P.I.) who “report that their spouses who were detained by other ICE Field Offices were released months ago based on the same evidence submitted in their own parole requests.” (Id.) Plaintiffs claim these declarations establish that “other field offices are not systematically determining parole applicants to be flight risks.” (Id.)
However, Plaintiffs mischaracterize the content of these declarations. Plaintiffs cite paragraphs 9 and 10 of the K.S.R. declaration (id.), but K.S.R. did not attest that she provided “the same evidence” submitted by her husband, but only that she had the same “sponsor” as her husband. (ECF No. 74-18, K.S.R. Decl. ¶ 9) And, although she identifies the documents that she submitted, she does not state that they are the “same” as submitted by her husband. (Id. ¶ 10) M.P.I.’s declaration states that she was denied parole on two occasions and then submitted a third request and was interviewed utilizing a questionnaire form on April 20, 2020, and, as of the date of the declaration (April 27, 2020) was “awaiting a decision.” (ECF No. 74-20, M.P.I. Decl. ¶ 10) According to her declaration, it is this third request, completed approximately seven days before the date of the declaration, that she contends “used the same evidence” that was used to obtain parole for her husband the previous month. (Id.) This so-called anecdotal evidence, which simply shows that M.P.I. was awaiting a decision on her most recent request at the time this declaration was executed, does not “corroborate[]” that the New Orleans Field Office is
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“systematically determining parole applicants to be flight risks.” (Pl. Mem. at 17) Indeed, M.P.I. was granted parole on May 15, 2020, following this third redetermination request. (Hartnett Decl. ¶ 30)
II. Plaintiffs Have Failed To Establish Non-Compliance As to Other Aspects Of The Court’s Order By Clear And Convincing Evidence Or, Alternatively, Defendants Are In Substantial Compliance. A. Plaintiffs Overlook Important Distinctions And Qualifying Language In The Parole Directive In Making Their Procedural Arguments.
Plaintiffs’ argument that ICE has failed to provide detainees with the procedures set forth in the Parole Directive is largely smoke and mirrors, conflating individual determinations from the distinct redetermination process, relying on alleged fixed deadlines and other procedures that are not reflected in the Parole Directive, and mischaracterizing the evidence cited. Once Plaintiffs’ assertions are disentangled, they are left with at most a handful of situations – out of approximately 2,400 parole determinations – in which the letter of the Parole Directive may not have been fully met. Of these limited examples, most allegedly occurred months ago and thus do not reflect ICE’s current compliance, which is the relevant focus of Plaintiffs’ motion.
Moreover, in response to the September 5, 2019 order, ICE has implemented training, complied with monthly reporting requirements, and has seen a substantial increase in the parole grant rate percentage. Given the volume of parole determinations, resource limitations, staff turnover, and the strain on resources caused by the COVID-19 situation (Hartnett Decl. ¶¶ 7, 15, 35), the limited issues cited by Plaintiffs fail to establish non-compliance by “clear and convincing” evidence. Even if such a limited showing were sufficient to meet Plaintiffs’ burden, ICE has demonstrated substantial compliance with the Parole Directive and thus a finding of contempt would be improper for that additional reason.
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As a general matter, the Parole Directive sets forth certain procedures to follow in the
parole process as regards the initial parole determination. Redetermination requests are treated
differently than initial parole determinations. The Parole Directive provides that “if an alien
makes a written request for redetermination of an earlier decision denying parole, the Field
Office may in its discretion, reinterview the alien or consider the request based solely on
documentary material already provided or otherwise of record. (Parole Dir. ¶ 8.9) (emphasis added) Thus, interviews are not required for redetermination requests.10 Moreover, although
redetermination requests are permitted under the Parole Directive, the Directive contemplates
that such requests will be “based upon changed circumstances or additional evidence relevant to
the alien’s identify, security risk, or risk of abandoning.” (Parole Dir. ¶¶ 6.5, 8.2) In other
words, the repeated submission of the same, deficient request is not contemplated.
As discussed below, much of Plaintiffs’ procedural arguments fail to account for these
distinctions, a prime example being the “sticky note” example that Plaintiffs highlight repeatedly
(Pl. Mem. at 7, 10). That was a situation where a redetermination request was returned because
10 Although ICE has discretion not to re-interview individuals who have been denied parole and request redeterminations (Parole Directive § 8.9), ICE previously stated that it plans to treat individuals previously denied parole prior to September 5, 2019 and who request a new determination after that date under the procedures applicable to an initial adjudication. (ECF No. 35 at n.1) That was intended to address any alleged deficiencies in process for individuals who had requested parole prior to the Court’s September 5, 2019 order and who sought a redetermination after that order, which is a finite number of class members. However, that accommodation does not extend to any additional requests following the first redetermination request post-dating the September 5, 2019 order. In addition, it also does not extend to detainees who initially were denied parole after the September 5, 2019 order and who then make redetermination requests. All redetermination requests by such individuals (i.e., those initially denied parole after September 5, 2019) are subject to the procedures applicable to redetermination requests under the Parole Directive.
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it contained the same deficiency that had been flagged in several prior requests. (ECF No. 7440, reiterating prior guidance that “has to be an immediate relative” and returning the request on that basis; Hartnett Decl. ¶ 35, explaining that redetermination requests should be based on a change of circumstances or additional evidence and how multiple such requests strain resources).
Moreover, although certain time periods are referenced for different steps in the process, the Parole Directive recognizes that those time periods may not always be achievable and thus allows flexibility in meeting them. For instance, the Parole Directive states that, following a positive credible fear determination, field office personal are to provide the detainee “as soon as practicable” with a Parole Advisal and Scheduling Notification. (Parole Dir. ¶ 8.1) For initial determinations, the Parole Directive provides for an interview to occur within “seven days” following a credible fear determination “[u]nless a reasonable additional time period is necessary (e.g., due to operational exigencies or an alien’s illness or request for additional time to obtain documentation)”. (Parole Dir. ¶ 8.2) That “same period” applies to the time for an officer to make a recommended parole decision to his or her supervisor (id.; see also id. ¶ 8.5), meaning that operational “exigencies” and other issues allow for these deadlines to be exceeded without violating the Parole Directive.
Similarly, written notifications of parole decisions should be provided within seven days of the detainee’s initial parole interview or the date a detainee requests a redetermination “absent reasonable justification for delay in providing such notification.” (Parole Dir. ¶ 6.6) In other words, the goal is to complete the initial parole determination process within 14 days of a credible fear determination (i.e., conduct an interview and make a recommendation within 7 days and issue a decision within 7 days of the interview/recommendation). However, that is not a
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fixed deadline and, instead, flexibility is built into the referenced time periods in recognition of the many potential reasons why those time periods might not be met in any given case. Consequently, given that built-in flexibility, the alleged failure to meet those time periods cannot constitute non-compliance with this Court’s September 5, 2019 order. Presently, ICE estimates that it takes the New Orleans Field Office, on average, 18 days from the credible fear determination to issue an initial parole determination, a time period that is very close to the 14day goal set forth in the Directive. (Hartnett Decl. ¶ 15; see also Pl. Mem. at 11, stating that “[o]n average, it takes NOLA ICE over two weeks to issue a parole decision for first-time applicants after they make a parole request”).
Relatedly, because of the referenced time periods, the Parole Advisal and Scheduling Notification document affords detainees only a few days to provide documentation because the time periods could not be met otherwise. Plaintiffs argue inconsistently that Defendants have violated the Parole Directive by failing to issue parole determinations within 14 days of a credible fear determination, while at the same time arguing that Defendants also are in violation because they afford detainees only a few days to provide supporting documentation, which is necessary to meet the seven day time period to make a parole recommendation. (Pl. Mem. at 7 (referencing “unreasonably short timelines to submit supporting documents”) and id. at 11 (asserting that class members “rarely” receive notifications of their parole determinations “within the seven-day timeframe required by the Directive”)). Thus, from Plaintiffs’ standpoint, Defendants should be held in contempt for failing to meet the short time period for a parole determination and also for seeking documentation from detainees within the limited window necessary to meet that short time period. Plaintiffs cannot have it both ways.
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Finally, the Parole Directive does not require the degree of translation or interpreter services that Plaintiffs suggest. It uses the terms “language”, “translation” or “interpreter” (or a variations of these terms) only in three paragraphs and only in reference to the Parole Advisal and Scheduling Notification and the written notification of a parole decision. (Parole Dir. ¶¶ 6.1, 6.5, 8.1) As to the former, the Parole Directive does not require that the Parole Advisal and Scheduling Notification be provided in a language that the detainee understands, but only that an ICE officer explain the “contents” of the advisal in a language the detainee understands, “through an interpreter if necessary.” (Parole Dir. ¶ 6.1, 8.1) As to the notice of parole decision, the Parole Directive states that an ICE officer “shall ensure reasonable access to translation or interpreter services if notification is provided to the alien in a language other than his or her native language and the alien cannot communicate effectively in that language.” (Parole Dir. ¶ 6.5) Thus, neither document must be in a language other than English. And, while the contents of the Parole Advisal must be explained in a language the detainee understands, and reasonable access to translation or interpreter services provided when a detainee advises that the detainee cannot understand the parole denial letter, the Directive does not require that these documents be explained in the detainee’s best or native language, so long as the alien understands the language used. (Hartnett Decl. ¶ 13) Officers also can obtain assistance from other officers; they do not need to resort to interpreters unless necessary. (Id.)
Importantly, the Parole Directive does not contain any similar provisions regarding interviews. (Parole Dir. ¶ 8.2) Indeed, the Directive is silent as to how interviews should be conducted, whether they can be conducted through written questions instead of orally, and what, if any, interpreter or translation services should be made available. How the Parole Directive
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should be understood on these points of procedure is not the question presented here. Plaintiffs are asserting that ICE should be held in contempt for non-compliance with the Parole Directive as written, not how it is interpreted by the Plaintiffs. Thus, ICE cannot be held in contempt of this Court’s September 5, 2019 order for failing to utilize a procedure that is not set forth in the Parole Directive or that is ambiguous. Stated another way, the Court’s order references the “procedures” of the Parole Directive and, if the Directive is silent or ambiguous on a particular matter of procedure, than this Court’s order necessarily is not “clear and unambiguous” as regards that procedure. Plaintiffs’ preferred interpretation is thus not a basis for contempt.
B. Plaintiffs’ Examples Of Procedural Non-Compliance Are Overstated Or Largely Irrelevant
Plaintiffs make sweeping assertions of procedural non-compliance, but when their evidence is examined, these assertions lack support, are overstated or are based on procedures that are not stated in the Parole Directive. Defendants briefly address these assertions and Plaintiffs’ purported evidence below using the numbering from Plaintiffs’ filing.
i. Parole Advisal and Scheduling Notification Since the Court’s September 5, 2019 order, ICE has issued at least 700 initial parole determinations. (Hartnett Decl. ¶ 33) Plaintiffs assert that Defendants are in contempt of this Court’s order based on the experience of five detainees, or less than one percent of all initial determinations, regarding their receipt of the Parole Advisal and Scheduling Notification (hereinafter, “Parole Advisal”). (Pl. Mem. at 7) Plaintiffs also mischaracterize the requirement of the Parole Directive when they contend that an “interpreter or translator” is rarely provided to class members that are not English proficient. (Id.) As discussed above, “an interpreter or translator” is not required merely because a class member is “not English proficient.” That
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becomes a requirement only if other efforts to communicate the contents of the Parole Advisal are not effective.
A review of the individual declarations cited by Plaintiffs also reveals that these assertions are overstated. Y.P.T. admits receiving a copy of the Parole Advisal following Y.P.T.’s credible fear determination and received another copy immediately following this Court’s September 5, 2019 order. (ECF No. 74-19 at ¶¶ 6, 9; see also Hartnett Decl. ¶¶ 25) Although Y.P.T. states that the Parole Advisal was “in English” (ECF No. 74-19 at ¶ 9), nothing in the Parole Directive requires that it be provided in a different language. (Parole Dir. ¶ 8.1) Although Y.P.T. also states that, following a transfer to a new facility in February 2020, Y.P.T. was shown but not provided a copy of the Parole Advisal (ECF No. 74-19 at ¶ 13), there is no requirement in the Parole Directive that an additional copy of the Parole Advisal be provided at that stage of detention. (Parole Dir. ¶ 8.1, stating that parole advisal must be provided “as soon as practicable” after a credible fear determination).
C.L.H. acknowledges receiving a Parole Advisal. (ECF No. 74-28 at ¶ 5) Although C.L.H. alleges that it was in English, he does not assert that officers failed to explain the contents of the Parole Advisal to him. (Id.) To the contrary, C.L.H. discusses the contents of the Parole Advisal in the declaration – i.e., that it afforded two days to submit documents – thus indicating an understanding of the contents. (Id.)
M.B. also acknowledges receiving a Parole Advisal. (ECF No. 74-27 at ¶ 6) Although M.B. claims to have been unable to understand the document, M.B. states that an ICE officer explained the contents, stating that “an ICE officer told me I had two days to submit documents from the person waiting to receive me in the United States.” (Id. ¶ 7) Although M.B. states
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that “[n]o interpreter was provided so that we could better communicate” (id.), the Parole Directive only requires that contents be explained so that the detainee understands. Because M.B.’s own description reflects an understanding of what was communicated, the Parole Directive did not require that the officer seek assistance from an interpreter.
Y.C.F. also acknowledges receiving a Parole Advisal and having the advisal explained by an ICE officer. (ECF No. 74-25 at ¶ 4) Y.C.F. states that “the DO spoke in English and another asylum seeker in detention was helping me as an interpreter . . . . [and] understood enough to communicate these statements to me.” (Id.) Similarly, K.S.R. acknowledges receiving a Parole Advisal and that she understood the contents. (ECF No. 74-18 at ¶ 7) In K.S.R.’s words, “an ICE officer gave me a parole advisal in English and told me that I had until December 7, 2019 to turn in all my evidence in support of a parole application. I immediately requested two additional days to present all evidence as I knew I would not receive all my supporting documents on time.” (Id.) These accounts reflect conduct consistent with the requirements in paragraph 8.1 of the Parole Directive and thus fail to establish non-compliance.
ii. Time and Directions On Submitting Documents For Initial Parole Determination.
Citing the experiences of three detainees, and inadmissible hearsay from four attorneys regarding “reports” they received from detainees, Plaintiffs contend that “[m]any class members report difficulty determining who their assigned Deportation Officer (hereinafter “DO”) is at any given time, let alone having the opportunity to communicate with or receive instructions from DOs on how to submit documents in support of their parole requests.” (Pl. Mem. at 7) Plaintiffs contend that these assertions violate paragraph 8.1 of the Parole Directive, and thus reflect non-compliance with the Court’s September 5, 2019 order. As discussed above,
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paragraph 8.1 sets forth certain procedures to follow with respect to initial parole determinations following a credible fear determination, including an initial interview and submission of documents. (Parole Dir. ¶ 8.1) However, it does not address the extent to which access to DOs should be provided or how detainees are to be notified about the identity of their DOs.
In relevant part, paragraph 8.1 states that the Field Office should provide instructions in the Parole Advisal on how information should be provided by detainees. (Parole Directive ¶ 8.1) Plaintiffs’ declarants, however, do not contend that such information was omitted from the advisals they received. For instance, Y.P.T. does not allege that the Parole Advisal was deficient in this regard, but contends with respect to a subsequent facility that “[t]here is no list in my dorm of the DO assignments, and just like the other centers, the ICE officers that have come to our dorm do not answer our questions.” (ECF No. 74-19 at ¶ 19) Likewise, L.P.C. asserts that “[a]fter receiving my first parole denial, my assigned DO changed” and that “[i]t is very difficult to know who my assigned DO is at any given moment because they change about every 45 days.” (ECF No. 74-23 ¶ 10) L.P.C. does not contend that L.P.C. failed to receive instruction on how to submit documentation. M.B. also does not make such allegations. Rather, M.B. alleges that, after she transferred to a different facility and wanted to make a redetermination request, she had difficulty identifying her DO. (ECF No. 74-27 ¶ 11) As set forth in the accompanying Hartnett Declaration, resource limitations have required ICE to utilize detailees to staff facilities, resulting in frequent turnover. (Hartnett Decl. ¶¶ 5, 7) Such staffing issues, however, do not reflect non-compliance with a “clear and unambiguous” provision of the Court’s September 5, 2019 order.
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Plaintiffs also contend that they are not afforded sufficient time to submit documents for initial parole determinations. (Pl. Mem. at 7) But, as already addressed above, the Parole Directive sets a time period of seven days following a credible fear determination for a parole interview to occur and for a recommended decision on parole to be made. (Parole Dir. ¶ 8.2) Given that timeframe, requiring detainees to submit documents within two or three days of receiving the Parole Advisal is not inconsistent with the Parole Directive and thus cannot form a basis for a contempt finding.
Plaintiffs cite three examples of ICE officers allegedly refusing to accept documentation from class members, but the declaration of only one detainee actually makes that allegation (i.e., L.P.C., ECF No. 74-23 at ¶ 8, asserting that her DO would not accept her initial parole submission) While L.P.C. also contends that one of her redetermination requests was returned with a sticky note reiterating the defects from an earlier request (id. ¶ 17 and ECF No. 74-40), that does not demonstrate a violation of paragraph 8.1 of the Parole Directive for reasons previously discussed, namely, the Parole Directive contemplates that redetermination requests will be based on new information, not simply restate the same insufficient information.
The other declarants cited do not support the assertion that documentation for initial parole determinations is not accepted or reviewed. K.S.R. does not contend that officers refused to accept her parole application or supporting documents. (ECF No. 74-18 at ¶¶ 7-9) Similarly, Y.C.F. also makes no such allegations; instead, Y.C.F. complains that only three days were afforded to submit documentation and the belief that the application was not meaningfully considered. (ECF No. 74-25 at ¶¶ 4-6) The documents attached as exhibit 25 (ECF No. 74-72 to 74-80) also do not support this assertion. These documents reflect responses from ICE
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officers to detainees, but lack any context to allow the Court to draw the conclusions advanced by Plaintiffs. For instance, exhibit 25H is a one line request from a detainee dated December 21, 2019, and a response from December 23, 2019, stating that “your parole was denied 17/12/2019” (i.e., December 17, 2019). (ECF No. 74-79) Given the close date proximity, it would appear that the officer understood this as an inquiry into the status of a pending parole request, rather than a new request, and advised that the request recently had been denied. Plaintiffs seek to take this document out of context to suggest that the officer denied a new request after just two days, when that is not a reasonable conclusion to draw.
To the extent Plaintiffs rely on alleged statements regarding the unavailability of parole (Pl. Mem. at 8), those statements are irrelevant in light of the statistics reflecting parole grants at the facilities referenced. Plaintiffs, for instance, reference statements allegedly made on a “weekly basis” at Winn Correctional Center since the Court’s September 5, 2019 order (id.) but acknowledge in their own filing grant rates at Winn of 69 percent (January), 48 percent (February) and 25 percent (March). (ECF No. 74-16)
Finally, Plaintiffs allege the appearance of a “continued pattern and practice of de facto denial for all initial parole requests” at Tallahatchie. (Pl. Mem. at 8) Not only is that assertion entirely speculative based on the limited evidence cited, but Tallahatchie has not been used to house ICE detainees since January 2020, and parole determinations have not occurred there since that time. (Hartnett Decl. ¶¶ 12, 39).
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iii. Interviews For Initial Parole Determinations Plaintiffs contend that ICE has failed to comply with the requirement to interview detainees in connection with their initial parole determinations in violation of paragraph 8.2 of the Parole Directive. (Pl. Mem. at 8) That paragraph provides that, unless additional time is necessary for operational or other reasons, initial parole interviews should occur within seven days of a credible fear determination. (Parole Dir. ¶ 8.2) However, the Parole Directive does not require interviews for redeterminations but makes them discretionary. (Parole Dir. ¶ 8.9) With limited exception, Plaintiffs purported evidence fails to distinguish between these two provisions. For instance, Plaintiffs cite to the declaration of “one advocate” who asserts that, of the 25 parole requests on which the individual worked, 23 reported that they had not been interviewed. (Pl. Mem. at 8, citing Huber declaration (ECF No. 74-37), ¶ 2a) However, that declaration does not address whether those were initial parole determination requests or redetermination requests in which interviews are discretionary. (ECF No. 74-37 at ¶ 2a) ICE also has records that contradict the assertions of several of the declarants cited by Plaintiffs as having never received an initial interview. For instance, ICE’s records reflect that K.S.R., Y.M.T., Y.P.T. and D.A.A. all received initial interviews. (Hartnett Decl. ¶¶ 23, 24, 25, 29) Moreover, Plaintiffs cite to the declaration of M.B. (paragraphs 6 to 8), but M.B. does not state in those paragraphs that no interview occurred. Rather, the declaration is silent on that issue. (ECF No. 74-27 at ¶¶ 6-8) Other alleged examples, such as A.P.E., refer to the time period immediately after the Court’s September 5, 2019 order, which is not the relevant time period for assessing current compliance. (ECF No. 74-21 at ¶¶ 8-9 (A.P.E.); see also e.g., ECF No. 74-22 at ¶ 7 (D.A.A.)) Indeed, as Plaintiffs acknowledge, A.P.E. was granted parole on April 30, 2020
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and released on May 1, 2020. (Pl. Mem. at 9 n.5; Def. May 26, 2020 Report, Ex. A to Metoyer Decl.)
Plaintiffs also cite to four detainees who contend that they were not provided with translation or interpreter services during their interviews. (Pl. Mem. at 9) As discussed above, however, the Parole Directive is silent as to the manner or requirements of interviews. Moreover, ICE’s records reflect that one of the detainees, M.B., was provided a French interpreter during M.B.’s interview in December 2019. (Hartnett Decl. ¶ 26) Ultimately, these limited allegations fail to demonstrate non-compliance with any procedural requirement of the Parole Directive.
iv. Written Notification Of Parole Decision Plaintiffs contend that “class members and their legal representatives report not receiving notifications of parole decisions” and that “[m]any also report not receiving translation or interpretation when needed.” (Pl. Mem. at 9) These assertions also are overstated as reflected by a review of the evidence cited.
a. Receipt of Written Parole Denial Notification In support of the first assertion, Plaintiffs cite to the declarations of R.C.L. (ECF No. 7426 at ¶ 14), C.L.H. (ECF No. 74-28 at ¶ 6, 16-17, 20), K.S.R. (ECF No. 74-18 at ¶¶ 12, 21), and D.A.A. (ECF No. 74-22 at ¶15), as well as declarations by two advocates, Fonte (ECF No. 74-30 at ¶ 5) and Crawford (ECF No. 74-29 at ¶ 3e). Each of these is addressed in turn, and none support a basis for contempt.
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In the cited paragraph, R.C.L. states the following: The last time I submitted a parole interview form and packet was on March 10, 2020 to my then-assigned DO, Officer Paredes. However, on March 12, 2020, DO Paredes and the other DOs from that time period left, and new ones arrived. Eventually, I was able to ask my newly assigned DO about the status of my previously submitted parole request. He informed me that it was denied, once again because ICE considers me to be a flight risk. He told me he would provide me the denial letter for this denial. Now he has also left, and he never provided me the denial letter.
(ECF No. 74-26 at ¶ 14) R.C.L. states that the newly assigned DO “never provided me the denial letter” but not that it was not ultimately received. Moreover, to the extent it was never received, R.C.L.’s declaration suggests it was an omission that resulted from staff turnover, rather than some systemic failure that could support a finding of contempt.
C.L.H.’s declaration (ECF No. 74-28) states in the cited paragraph that, in December 2019, C.L.H. received a written notification that parole was denied and that the notice was in English, all of which is consistent with the requirements of the Parole Directive. (Parole Dir. ¶ 6.5) As already addressed above, the Parole Directive does not require that the denial notice be written in a language other than English, only that “DRO shall ensure reasonable access to translation or interpreter services if notification is provided to the alien in a language other than his or her native language and the alien cannot communicate effectively in that language.” (Id.) Although C.L.H. contends that he did not understand the notice because it was in English, he does not contend that he requested, or was denied, “reasonable access to translation or interpreter services.” (ECF No. 74-28 at ¶ 6) In the other cited paragraphs, C.L.H. references a subsequent parole request that was made on April 7, 2020, three weeks before the date of his declaration (April 28, 2020), and which was resubmitted by Federal Express overnight mail on April 23, 2020. Although he contends that, as of the date of his declaration, a response to the
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redetermination request had not been received, that is not evidence that written parole denials are not issued given the close proximity between the date of the request and his declaration.
Plaintiffs also cite to the declaration of K.S.R. (ECF No. 74-18), who in the cited paragraph describes her experience with a parole request that is consistent – not contrary to – the requirements of the Parole Directive. K.S.R. states that she submitted a parole redetermination request on December 24, 2019 that was supplemented with additional information by her sponsor on December 30, 2019. (ECF No. 74-18 at ¶ 12) K.S.R. then describes communications with an ICE officer regarding the request who, on January 14, 2020, gave her a form with written questions to complete and also gave her additional time to “submit evidence that my husband is in fact my husband and that he had been granted parole.” (Id. ¶ 14) K.S.R. states that she submitted the information on January 17, 2020, and that she received a parole denial letter on January 26, 2020. (Id. ¶¶ 15, 17) Although K.S.R. states that the denial letter was in “English only” (id. ¶ 17), that is not inconsistent with the requirements of the Parole Directive and K.S.R. does not contend that she was unable to understand the letter (to the contrary, her allegations make clear that she did understand it). (Id.) The other paragraph that Plaintiffs cite from the K.S.R. declaration – paragraph 21 – references K.S.R. having “witnessed” an unspecified number of detainees “get denied parole with their parole packets returned to them sealed and unopened” but K.S.R. is not competent to attest to the circumstances of those alleged denials.
Paragraph 21 of K.S.R.’s declaration also reflects the resource limitations that ICE is currently experiencing under the COVID-19 situation, and references the following statement that an ICE officer allegedly made “[r]ecently”: “‘there are only four of us, 300 of you and everyone has applied for parole, and our supervisors are working from home.’” (Id. ¶ 21)
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Rather than demonstrate non-compliance with the Court’s order, that statement confirms the challenges that ICE officers are facing as they work to comply with the Parole Directive under challenging circumstances.
The Crawford Declaration (ECF No. 74-29), in the paragraph cited, discusses the experiences of two clients. Crawford acknowledges that the two clients received copies of written parole denials but asserts that copies also had not been sent to her directly. (Id. ¶ 3e) Consequently, she states that “[w]e had to wait to get these denials from our clients, which slowed down our ability to quickly submit reconsideration requests.” (Id.) Rather than demonstrate non-compliance, this type of evidence goes beyond the narrow issues raised in the Complaint and shows the extent to which Plaintiffs are searching for reasons to bring a contempt motion.
The Fonte declaration (ECF No. 74-30), contains a chart in the cited paragraph that purports to chronicle the initial parole request and multiple redetermination requests of one detainee dating back to March 14, 2019, well before the Court’s preliminary injunction order. (ECF No. 74-30 at ¶ 5) For the post-injunction period, that chart reflects that this detainee’s redetermination request was denied on October 2, 2019 through a denial letter sent to the detainee, and that, although there was an alleged delay in responding to a subsequent request, a notice ultimately was sent by email that the prior decision “stands.” (Id.)
Finally, Plaintiffs discuss two examples where detainees submitted parole requests that failed to address deficiencies that had been identified by ICE previously and were returned for that reason. (Pl. Mem. at 10) As already discussed, the Parole Directive contemplates that redetermination requests will be based on new information, not simply reiterate information
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already deemed to be insufficient. And, although Plaintiffs cite to D.A.A.’s declaration dated April 30, 2020, where he contends that he had not yet received a response to his redetermination request made “sometime in February 2020” (ECF No. 74-22 at ¶15), the May 26, 2020 monthly report reflects that that redetermination request was denied on April 30, 2020. (Def. May 26, 2020 Status Report, Ex. A to Metoyer Decl.) Given that that declaration was signed the same day as the denial decision, D.A.A’s declaration is not evidence that a denial letter was not issued.
b. Translation and Interpretation Plaintiffs also cite a handful of declarations in support of their assertion that translation and interpretation services have not always been received “when needed.” (Pl. Mem. at 9) The cited declarations also do not support that assertion. For instance, M.P.I.’s declaration at the cited paragraph states only that “all of the parole denial letters that I have received from ICE were provided to me in English”, but that is consistent with the Parole Directive as already explained. (ECF No. 74-20 at ¶ 12) M.P.I. does not contend in that paragraph that reasonable access to translation or interpretation services was requested and denied by ICE. Y.P.T. also references a parole denial that was received in English, and, although Y.P.T. claims to have had difficulty understanding the denial letter, Y.P.T. likewise does not contend that access to translation or interpretation services were requested or denied. (ECF No. 74-19 at ¶ 14) The cited paragraph of C.L.H.’s declaration does not pertain at all to the issue of translation or interpretation services (ECF No. 74-28 at ¶ 8), nor do the cited paragraphs in the K.S.R. declaration (ECF No. 74-18 at ¶¶ 8, 17). Similarly, the cited paragraph in the Fonte declaration (ECF No. 74-30 at ¶ 6) also is unrelated to this issue.
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In the cited paragraph of the Gardina declaration, the declarant makes the conclusory allegation that “I have had clients wrongly denied an interpreter” without providing any specifics as to the circumstances that would allow the Court to assess whether that alleged failure conflicted with the requirements of the Parole Directive. (ECF No. 74-32 at ¶ 3) (Indeed, the Gardina declaration is entirely conclusory, devoid of specifics and resting entirely on this attorney’s personal opinion as to the matters stated in the declaration.) The Crawford declaration (ECF No. 74-29) states that two clients received parole denials in English and, although stating that no Spanish translation of the documents was provided, does not state that one was requested. (Id. ¶ 3c) The Crawford declaration also references the absence of an interpreter at an interview (id. ¶ 3d), but the Parole Directive is silent as to whether and when that is necessary.
Ultimately, of the declarations cited, there is one example – that of M.B. – where the declarant contends that interpreter services were requested and not provided. (ECF No. 74-27 at ¶ 14) But that concerned a parole interview (id.), where the Parole Directive is silent on the issue, not a parole denial letter. ICE’s records, moreover, reflect that a French interpreter was used during M.B.’s interview on December 7, 2019. (Hartnett Decl. ¶ 26) Although M.B. also contends that a denial letter was provided in English and that “no ICE officer ever explained the document to me” (id. ¶ 18), M.B. does not contend that translation or interpreter services were requested and denied. (Id.) Rather, M.B. explains that she chose to seek assistance from a bunkmate to understand the document (id. ¶ 16), which apparently sufficed as M.B. describes in detail the content of the denial letter. (Id. ¶¶ 16-17)
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v. Record Keeping Plaintiffs cite two “anecdotes” that they say demonstrate a failure to comply with paragraph 8.10 of the Parole Directive, which identifies certain material that should be placed in the alien’s A-file. (Pl. Mem. at 12) These anecdotes described two alleged instances where parole request information was allegedly submitted and lost by ICE. (Id.) These allegations exceed the scope of this lawsuit and, in any event, fail to demonstrate non-compliance given the volume of parole requests that have been processed since the Court’s September 5, 2019 order.
C. Plaintiffs Arguments Regarding Substantive Non-Compliance Are Misplaced.
Plaintiffs also make a series of arguments that ICE is not complying with the “substantive” provisions of the Parole Directive. These arguments are thinly veiled attempts to litigate the outcome of individual parole determinations, something this Court has repeatedly recognized is outside the scope of its jurisdiction. All such arguments should be summarily rejected.
First, Plaintiffs contend that “[c]lass members and legal representatives report that NOLA ICE is not properly weighing “serious medical conditions” and “public interest” when reviewing parole requests, particularly in light of the COVID-19 pandemic and the serious health risks it presents to those detained in the NOLA region.” (Pl. Mem. at 12-13) The weighing of such factors is a matter entirely within ICE’s discretion. See Damus v. Nielsen, 313 F. Supp. 3d 317, 327 (D.D.C. 2018) (“[t]o the extent Plaintiffs are challenging the [parole] determinations themselves – i.e., the actual balancing of the merits of each application for parole – this Court agrees that it lacks jurisdiction”). Accordingly, Plaintiffs cannot base a contempt motion on
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their belief that ICE has failed to properly weigh applicable factors in any individual parole determination.
Relatedly, Plaintiffs contend that “[l]egal advocates for class members report submitting thorough parole requests with extensive supplementary documentation and receiving boilerplate denial letters in response that suggest the evidence submitted was not taken into consideration by NOLA ICE.” (Pl. Mem. at 13) By this allegation, Plaintiffs appear to be challenging both ICE’s discretionary decisionmaking (addressed above) as well as ICE’s use of a form letter, Notification Declining to Grant Parole, on which the relevant basis for denial are checked (i.e., flight risk, failure to establish identity, danger to the community, or other factors) with a brief explanation for that basis. (Hartnett Decl. ¶ 18) Plaintiffs contend that instead ICE is required by the Parole Directive to provide more detailed, “individualized reasons” for the denial decision and the failure to do so indicates a lack of consideration of the request. (Pl. Mem. at 13)
The Court’s preliminary injunction order, however, does not “clearly and unambiguously” prohibit the use of such form letters and, accordingly, this argument cannot be a basis for a contempt motion. The Parole Directive requires that ICE provide arriving aliens who are denied parole a “brief explanation of the reasons for the decision to deny parole.” (Parole Directive, at § 6.5) The denial letter used by the New Orleans Field Office does so, indicating the specific reason or reasons – flight risk, danger, etc. – that parole was denied in a particular arriving alien’s case. (e.g., ECF No. 74-41 to 74-71) Plaintiffs believe that the denial letters should include more information than they do. However, Plaintiffs’ belief about what the denial letters should include is not based on any actual requirements under the Parole Directive or this Court’s September 5, 2019 order, which requires ICE to provide provisional class members with
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parole determinations that “conform to all of the substantive and procedural requirements” of the Parole Directive. However, the Parole Directive does not clearly and unambiguously require an explanation beyond the one offered in the form letters that are utilized.
Plaintiffs’ related contention – that ICE fails “to provide clarity on what supporting documents or underlying factors would sufficiently satisfy NOLA ICE that they are not flight risks” – fails for the same reason. (Pl. Mem. at 14) There is no such requirement in the Parole Directive. Accordingly, because ICE is not violating any provision of the Parole Directive by utilizing a form letter to explain the basis for denials, and Plaintiffs’ other arguments regarding the “substantive” provisions of the Parole Directive implicate matters outside this Court’s jurisdiction, Plaintiffs’ contention of non-compliance on these grounds should be rejected.
III. The Court Should Deny The Request For Expedited Discovery And For Appointment Of A Special Master
Plaintiffs make sweeping allegations of non-compliance but, absent supporting evidence, those allegations have no legal significance. As discussed above, such evidence is lacking. The assertions in Plaintiffs’ brief are not supported by the cited evidence, mischaracterize the provisions of the Parole Directive, and seek to expand the scope of this lawsuit well beyond the narrow issues that have been pled by implicitly challenging the outcome of parole decisions and delving into discrete matters of parole procedure not previously raised.
Because this is a motion for contempt, Plaintiffs can be entitled to relief only if Defendants have been shown to have violated a clear and unambiguous provision of a court order. No such showing has been made. For the last several months, ICE’s monthly reports reflect a grant rate approaching 30 percent, and, beyond that, Plaintiffs’ own evidence demonstrates that individualized parole determinations are occurring. Out of the approximately
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2400 parole determinations that have been made since this Court’s September 5, 2019 order, Plaintiffs base their motion on a handful of examples, most of which are easily rebutted or relate to events occurring months ago. Plaintiffs profess that they do not move for contempt “lightly,” but their attempt to rest a contempt motion on the thinnest of grounds demonstrates otherwise.
Moreover, for the same reason, Plaintiffs have failed to establish a need for expedited discovery under either of the standards that they cite, whether it is the standard in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982) or the “reasonableness” test in In re Fannie Mae Derivative Lit., 227 F.R.D. 142 (D.D.C. 2005). The limited issues that Plaintiffs identify, even if they could be credited by the Court (which Defendants dispute as discussed above), fail to rise to the level of irreparable harm needed to support expedited discovery nor are they reasonably correlated to the expansive discovery that Plaintiffs outline in their motion, which would be unduly burdensome on the agency if permitted.
For all of these reasons, the Court thus should not order expedited discovery or appoint a special master. The Court instead should deny the motion and set a schedule for Defendants to move for summary judgment. Alternatively, to the extent the Court considers some discovery to be appropriate, it should be narrowly tailored to the specific issue of alleged non-compliance that the Court finds to warrant such discovery. The wide-ranging discovery that Plaintiffs request should be rejected in all events. This remains an APA case where discovery is disfavored. Allowing Plaintiffs to engage in a fishing expedition would be unduly burdensome on an agency whose resources already are strained and divert personnel from the agency’s mission.
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CONCLUSION For the foregoing reasons, Plaintiffs’ motion should be denied.
Respectfully submitted, MICHAEL R. SHERWIN Acting United States Attorney DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief By: ______/s/__________________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov Counsel for Defendants
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANGEL ALEJANDRO HEREDIA MONS, et al.,
Plaintiffs, v.
CHAD WOLF, Acting Secretary of the Department of Homeland Security, et al.,
Defendants.

Civil Action No. 19-1593 (JEB)

MEMORANDUM OPINION AND ORDER Plaintiffs are members of a provisionally certified class of asylum-seekers detained by Immigration and Customs Enforcement at its New Orleans Field Office. In bringing suit, they alleged that the Office has subjected them to systematic detention in violation of ICE’s 2009 “Parole Directive,” which governs detention policy and sets forth procedural requirements for determining whether an asylum-seeker is eligible for pre-hearing release on parole. Finding that Plaintiffs were reasonably likely to succeed on that claim, this Court last September granted a preliminary injunction requiring that Defendants comply with the Directive. See Heredia Mons v. McAleenan, No. 19-1593, 2019 WL 4225322, at *11–12 (D.D.C. Sept. 5, 2019). Believing that the New Orleans Field Office is not following that injunction, Plaintiffs now return to court seeking discovery regarding the Office’s compliance, a potential finding of contempt, and an appointment of a Special Master. As they have raised a sufficient question of noncompliance, the Court will grant their Motion in part and permit limited discovery. I. Background The background of this case is set forth in this Court’s prior injunction Opinion. See
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Heredia Mons, 2019 WL 4225322. Stated briefly, the Immigration and Nationality Act and accompanying regulations permit the Secretary of Homeland Security, under whom ICE operates, to temporarily parole non-citizens applying for asylum who are “neither a security risk nor a risk of absconding,” in the service of such “urgent humanitarian reasons or significant public benefit.” Id. at *1 (quoting 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(b)). The Directive sets out procedural requirements for assessing whether individual applicants should be released. It provides that, if an asylum-seeker has established her identity and that she is neither a flight risk nor a risk to the public, detention is not in the public interest and parole should be granted between the non-citizen’s credible-fear determination — the first step in gaining asylum status — and the full hearing. Id. at *2; see ICE Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009). The Directive also requires that ICE make an individualized parole determination, provide a written notice of the parole process in a language the asylum-seeker understands, grant a parole interview within seven days, and offer a “brief explanation” of its decision. Heredia Mons, 2019 WL 4225322, at *2.
In arguing that Defendants are no longer following the Directive, Plaintiffs contrasted the New Orleans Field Office’s 75.5% parole-grant rate in 2016 with the Office’s 82%, 98.5%, and 100% denial rates in 2017, 2018, and the first seven months of 2019, respectively. Id. at *10. Plaintiffs also submitted a host of declarations from asylum-seekers and their advocates alleging “myriad violations” of the Directive’s various requirements. Id. Based on that evidence, the Court granted their request for a preliminary injunction. Id. at *11–12. It accordingly issued an Order requiring, inter alia, that “Defendants . . . [not] deny[] parole to any provisional class members absent an individualized determination”; that such determinations of flight risk and
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danger “shall be based on the specific facts of each provisional class member’s case”; and that Defendants “conform to all of the substantive and procedural requirements” of the Directive. See ECF No. 33 (Order), ¶¶ 3–5. In order to monitor ICE’s compliance, the Court subsequently ordered it to produce monthly reports containing parole determination data from the New Orleans Field Office. See Minute Order (10/7/2019).
The Court’s intervention notwithstanding, Plaintiffs now contend that Defendants are flouting the injunction. Citing ICE’s own statistics and a renewed set of declarations from asylum-seekers and practitioners, Plaintiffs filed a lengthy Motion seeking an order from this Court holding Defendants in contempt, permitting them limited discovery, and appointing a Special Master to ensure compliance. See ECF No. 76 (Pl. Mot.) at 1. On July 17, 2020, the Court held a hearing at which Plaintiffs ultimately indicated their desire to obtain limited discovery in advance of a potential future evidentiary hearing on their Motion for Contempt. See Minute Entry (7/17/2020); see also Pl. Mot. at 39–40 (explaining that discovery will “enable the Court and the Parties to identify the exact processes and procedures that Defendants are implementing to comply with the Court’s Order, and the areas where compliance is lacking”). II. Analysis
This Court has had previous occasion to determine the availability of discovery in a situation bearing a close resemblance to this one. In Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), it issued a preliminary injunction requiring that ICE officials at five Field Offices (other than New Orleans) comply with the Directive. Id. at 323. The plaintiffs there returned to court in the months after that Order, citing evidence of the defendants’ noncompliance and seeking discovery to monitor and asses future compliance. Damus v. Nielsen, 328 F.R.D. 1, 2 (D.D.C. 2018).
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The Court explained that it had the authority to order limited discovery “as part of its inherent power to enforce its judgments,” and that “it is clear that ‘appropriate discovery should be granted’ where ‘significant questions regarding noncompliance [with a court order] have been raised.’” Id. at 3 (quoting Cal. Dep’t of Social Servs. v. Leavitt, 523 F.3d 1025, 1033–34 (9th Cir. 2008)). Other courts have similarly held. See, e.g., Fraihat v. U.S. Immigr. & Customs Enf’t, No. 19-1546, 2020 WL 2758553, at *4–5 (C.D. Cal. May 15, 2020) (ordering limited discovery when plaintiffs’ evidence raised “significant questions” regarding defendants’ compliance with preliminary injunction); Abdi v. McAleenan, No. 17-721, 2019 WL 1915306, at *3 (W.D.N.Y. Apr. 30, 2019) (granting discovery pursuant to court’s “inherent authority to monitor and enforce its prior orders” where plaintiffs presented evidence of Government’s noncompliance with preliminary injunction); Palmer v. Rice, 231 F.R.D. 21, 25 (D.D.C. 2005) (allowing discovery where, “without [it], plaintiffs will not be able to determine whether the government has complied with the court’s injunctions”).
Applying these principles to this case, the Court reaches the same conclusion as in Damus: Plaintiffs have sufficiently raised significant questions of Defendants’ noncompliance so as to warrant limited discovery. In the roughly seven months following this Court’s Order on September 5, 2019, the New Orleans Field Office granted approximately 13.5% of total parole applications. See ECF No. 74 (Pl. Mot.), Exh. 1D. That figure stands in stark contrast to the aforementioned 75.5% grant rate in 2016. Id., Exh. 1A. Defendants acknowledge this disparity but repeatedly insist that the “relevant” time period for assessing their compliance starts in late January 2020, when they report an overall grant rate generally hovering between 20% and 30% for four consecutive months. See ECF No. 82 (Def. Opp.) at 5, 9, 17, 23, 34; id. at 9–10 (citing data). Defendants offer no compelling reason why the Court should discount the full range of
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data from the months following its Order, given that the Court did nothing more than instruct them to adhere to a policy they “purport[ed] to already be following.” Heredia Mons, 2019 WL 4225322, at *1. At any rate, although Defendants’ preferred figures represent an improvement over the grant rate immediately prior and subsequent to this Court’s Order, see Pl. Mot., Exhs. 1B, 1I, they remain a far cry from 2016 levels. And while Defendants invoke a “sustained increase in the parole grant rate” as evidence of a “favorable statistical trend,” Def. Opp. at 9, 11, the most recent figures seem to buck it: Defendants’ latest data filing, which postdated their Opposition brief by a single week, relates a total grant rate of just 15% in the most recent monthlong reporting period. See ECF No. 83 (June 23, 2020, Status Report) at 1–2.
In addition to this troubling dataset, Plaintiffs offer affidavits from detainees and practitioners to “substantiate their claim that asylum-seekers continue to be summarily detained as flight risks without the required individualized analysis.” Damus, 328 F.R.D. at 4. As part of that showing, they cite evidence of prospective parolees receiving form denial letters seemingly devoid of any individualized process. See Pl. Mot., Exh. 2 (Declaration of K.S.R.), ¶¶ 7–8, 10, 17–18; Exh. 3 (Declaration of Y.P.T.), ¶¶ 10, 13–14; Exh. 6 (Declaration of D.A.A.), ¶ 7; Exh. 7 (Declaration of L.P.C.), ¶¶ 9, 14; Exh. 8 (Declaration of Y.M.T.), ¶¶ 6, 9–10; Exh. 9 (Declaration of Y.C.F.), ¶ 6; Exh. 10 (Declaration of R.C.L.), ¶¶ 16–17; Exh. 12 (Declaration of C.L.H.), ¶¶ 5–8; Exh. 14 (Declaration of Kari Ann Fonte), ¶ 2(d); Exh. 15 (Declaration of Peter M. Isbister), ¶¶ 12–13; Exh. 16 (Declaration of Joseph Giardina), ¶¶ 2(5), 5. Plaintiffs also submit evidence that Defendants are failing to comply with a host of the Directive’s procedural requirements. To name a few: they contend that ICE officials neglect to explain the contents of parole documents in a language that asylum-seekers understand, see Y.P.T. Decl., ¶ 9; Pl. Mot., Exh. 11 (Declaration of M.B.), ¶¶ 6, 8; C.L.H. Decl., ¶ 6, and they maintain that some applicants either
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do not receive written notification of parole decisions or are not offered necessary translation services. See Y.P.T. Decl., ¶ 14; R.C.L. Decl., ¶ 14; M.B. Decl., ¶¶ 16–18; C.L.H. Decl., ¶¶ 6, 16–17.
Resisting this trove of evidence, Defendants primarily argue that rising grant rates, along with several specific parole grants, establish that “individualized parole determinations are occurring” in ICE facilities. See Def. Opp. at 12; see also id. at 3 (citing four parole grants). This misses the point. Plaintiffs do not dispute that “recent data show some individualized parole determinations are occurring,” and they acknowledge that “the Directive is not being completely ignored.” ECF No. 84 (Pl. Reply) at 10. What Plaintiffs instead understandably object to is the abundant evidence suggesting Defendants are not providing many parole applicants — let alone every applicant, as required by the Directive — an individualized determination of parole eligibility. See Parole Directive, ¶ 6.2. Defendants also take issue with Plaintiffs’ anecdotal evidence, variously contesting the accuracy and reliability of individual declarations. See Def. Opp. at 28–41. To obtain discovery, however, Plaintiffs need only raise “significant questions” regarding Defendants’ compliance, as opposed to actually establishing noncompliance itself. Damus, 328 F.R.D. at 4; see Leavitt, 523 F.3d at 1034 (“[T]he kind and amount of evidence of noncompliance required to justify discovery is, necessarily, considerably less than that needed to show actual noncompliance.”). The Court finds that Plaintiffs have made that lesser showing. It leaves questions surrounding the greater for another day.
Finally, Defendants assert, without elaboration, that any discovery would be “unduly burdensome.” Def. Opp. at 44. But that concern goes to the scope of discovery, rather than its propriety in the first place. As in Damus, the Court will not grant Plaintiffs unfettered access to Agency records and decisionmakers. See 328 F.R.D. at 5. Indeed, it has previously emphasized
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that any discovery will be appropriately “limited.” See ECF No. 55 (Jan. 29, 2020, Order) at 2.

III. Conclusion

For the foregoing reasons, the Court ORDERS that:

1. Plaintiffs’ Motion for an Order to Show Cause, Expedited Discovery, and

Appointment of a Special Master is GRANTED IN PART and DENIED IN PART

WITHOUT PREJUDICE. The Motion is granted with respect to Plaintiffs’ request

for limited discovery, and it is denied without prejudice in all other respects, to be

renewed following discovery and a potential hearing on Defendants’ violations;

2. Defendants’ Motion to Strike or, Alternatively, for Leave to File a Sur-Reply is

DENIED;

3. The parties shall confer regarding the proposed scope of discovery, and they shall

submit a joint status report by July 22, 2020, regarding such proposed discovery and

any related disputes; and

4. The parties shall appear for a further telephonic hearing on July 23, 2020, at 3:00 p.m.

SO ORDERED.

Date: July 22, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons, et al., on behalf of themselves and others similarly situated,
Plaintiffs,
v.
Chad Wolf, Acting Secretary of the Department of Homeland Security, in his official capacity, et al.
Defendants.

) ) ) ) ) Case No. 1:19-cv-01593-JEB ) ) ) ) ) ) ) ) )

MOTION FOR LEAVE TO INTERVENE AND TO UNSEAL JUDICIAL DOCUMENTS

Non-party press organization The Center for Investigative Reporting, Inc. d/b/a Reveal

from The Center for Investigative Reporting (“CIR”), by and through undersigned counsel,

respectfully submits this motion and accompanying memorandum of points and authorities,

Declaration of D. Victoria Baranetsky, and proposed order, seeking leave to intervene under Rule

24 of the Federal Rules of Civil Procedure, for the limited purpose of requesting the unsealing of

certain documents on the docket of the above-captioned case. As set forth more fully in the

memorandum of points and authorities, CIR seeks the unsealing of Defendants’ monthly

productions of parole determinations (see Dkt. Nos. 42, 44, 56, 58, 59, 71, 80, 83, 91) and any

such future productions, to inform the current public debate over the Department of Homeland

Security’s application of parole procedures to asylum seekers, and also to serve the deep-seated

American principle of open access to courts. Additionally, because CIR consents to necessary

redactions to the sealed documents to protect the asylum-seekers’ personal privacy—including

Case 1:19-cv-01593-JEB Document 95 Filed 08/20/20 Page 2 of 4

names and A-numbers—there exist no countervailing interests to justify continued sealing of these documents.
In compliance with Local Civil Rule 7(m), counsel for CIR conferred in good faith with counsel for Plaintiffs and Defendants prior to filing this motion. Plaintiffs do not oppose the motion, subject to the aforementioned redactions. Defendants’ counsel opposed the unsealing request, and stated that he would take a further position after having an opportunity to review the motion as filed.
For the foregoing reasons, CIR respectfully requests that the Court grant its motion; permit CIR to intervene in the above-captioned case for the limited purpose of challenging restrictions on the public’s right of access in this matter; and place on the public record Defendants’ monthly productions of parole determinations.
Pursuant to Local Civil Rule 7(f), CIR also respectfully requests an oral hearing on this motion.

Date: August 20, 2020

/s/ Chelsea T. Kelly Chelsea T. Kelly (DC Bar No. 1045673) Davis Wright Tremaine LLP 1301 K Street NW Suite 500 East Washington, D.C. 20005 Phone: (703) 850-6317 Fax: (202) 973-4450 Email: chelseakelly@dwt.com
Counsel for Third-Party Intervenor The Center for Investigative Reporting
Victoria Baranetsky (pro hac vice pending) General Counsel The Center for Investigative Reporting
2

Case 1:19-cv-01593-JEB Document 95 Filed 08/20/20 Page 3 of 4 1400 65th St., Suite 200 Emeryville, CA 94608 Telephone: 510-982-2890, Ext. 390 Email: vbaranetsky@revealnews.org Lead Counsel for Third-Party Intervenor The Center for Investigative Reporting
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Case 1:19-cv-01593-JEB Document 95 Filed 08/20/20 Page 4 of 4

CERTIFICATE OF SERVICE I certify that on August 20, 2020, I served a copy of the foregoing document on the Court and all parties of record by causing this document and its attachments to be filed with the clerk of the Court through the CM/ECF system, which will provide electronic notice of this document to all attorneys of record.

Date: August 20, 2020

/s/ Chelsea T. Kelly Chelsea T. Kelly (DC Bar No. 1045673) Davis Wright Tremaine LLP 1301 K Street NW Suite 500 East Washington, D.C. 20005 Phone: (703) 850-6317 Fax: (202) 973-4450 Email: chelseakelly@dwt.com
Counsel for Third Party Intervenor The Center for Investigative Reporting

Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Angel Alejandro Heredia Mons, et al., on behalf of themselves and others similarly situated,
Plaintiffs,
v.
Chad Wolf, Acting Secretary of the Department of Homeland Security, in his official capacity, et al.
Defendants.

) ) ) ) ) Case No. 1:19-cv-01593-JEB ) ) ) ) ) ) ) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE AND TO UNSEAL JUDICIAL DOCUMENTS

Victoria Baranetsky (pro hac vice pending) General Counsel The Center for Investigative Reporting 1400 65th St., Suite 200 Emeryville, CA 94608 Telephone: 510-982-2890, Ext. 390 Email: vbaranetsky@revealnews.org
Chelsea T. Kelly (DC Bar No. 1045673) Davis Wright Tremaine LLP 1301 K Street NW, Suite 500 East Washington, DC 20005 Phone: (703) 850-6317 Fax: (202) 973-4450 Email: chelseakelly@dwt.com
Counsel for Third-Party Intervenor The Center for Investigative Reporting

Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 2 of 33
TABLE OF CONTENTS I. PRELIMINARY STATEMENT ....................................................................................... 1 II. BACKGROUND………………………………………………………………………… 2 A. THE DOCUMENTS THAT CIR SEEKS TO UNSEAL .................................................. 2 B. PROPOSED INTERVENOR’S INTEREST ON BEHALF OF THE PUBLIC................ 6 III. ARGUMENT……………………………………………………………………………. 8 A. CIR SHOULD BE PERMITTED TO INTERVENE FOR THE LIMITED
PURPOSE OF UNSEALING COURT RECORDS. ......................................................... 8 B. THERE IS A STRONG PRESUMPTION THAT THE RECORDS IN THIS
CASE ARE OPEN TO THE PUBLIC............................................................................. 10 1. The First Amendment and Common Law Rights of Access Apply to Civil
Court Records Involving Detainment to Ensure Accountability and Integrity................................................................................................................ 10 2. The Court Should Unseal the Parole Determinations According to the First Amendment Right of Access. .............................................................................. 11 3. Continued Blanket Sealing of Defendants’ Parole Determinations Cannot Serve Any Compelling Governmental Interest, Especially Where Anonymity Can Easily Be Provided Through Redactions. ................................. 16 4. The Court Should Unseal the Parole Determinations According to the Common Law Right of Access. ........................................................................... 18 IV. CONCLUSION................................................................................................................ 23
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TABLE OF AUTHORITIES Page(s)
Federal Cases Abdi v. Duke,
280 F. Supp. 3d 373, 2017 WL 5599521 (W.D.N.Y. Nov. 17, 2017) ....................................15 Abdi v. McAleenan,
405 F. Supp. 3d 467 (W.D.N.Y. 2019) ...................................................................................15 Ahad v. Lowe,
235 F. Supp. 3d 676 (M.D. Pa. 2017) ......................................................................................20 Battle v. FAA,
393 F.3d 1330 (D.C. Cir. 2005) ...............................................................................................20 Bismullah v. Gates,
501 F.3d 178 (D.C. Cir. 2007) .................................................................................................21 Boumediene v. Bush,
553 U.S. 723 (2008).................................................................................................................14 Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165 (6th Cir. 1983) .................................................................................................13 Cable News Network, Inc. v. FBI,
384 F. Supp. 3d 19 (D.D.C.) (Boasberg, J.), recons. denied, 401 F. Supp. 3d 187 (D.D.C.), appeal filed, No. 19-5278 (D.C. Cir. Oct. 21, 2019) ..................................19, 22 Damus v. Nielson, 313 F. Supp. 3d 317 (D.D.C. 2018) ...........................................................................................3 Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017) ...........................................................................................9, 13 Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115 (D.D.C. 2003) .........................................................................................17 Doe v. MAMSI Life & Health Ins. Co., 471 F. Supp. 2d 139 (D.D.C. 2007) .........................................................................................17 Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004) .............................................................................................17
ii

Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 4 of 33
Doe v. Stephens, 851 F.2d 1457 (D.C. Cir. 1988) ...............................................................................................17
Doe v. U.S. Dep’t of Justice, 660 F. Supp. 2d 31 (D.D.C. 2009) ...........................................................................................17
Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000) .................................................................................................16
Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211 (1979).................................................................................................................15
EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406 (D.C. Cir. 1996) .................................................................................................23
Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982).................................................................................................8, 10, 16, 21
Herron v. Fannie Mae, No. CV 10-943 (RMC), 2016 WL 10677615 (D.D.C. June 20, 2016)....................................18
Hyatt v. Lee, 251 F. Supp. 3d 181 (D.D.C. 2017) .........................................................................................22
In re Appl. of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83 (D.D.C. 2008) .....................................................................................16, 22
In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) .................................................................................................13
In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2 (D.D.C. 2013) ...............................................................................................9
In re Grand Jury Matter, 906 F.2d 78 (3d Cir. 1990).......................................................................................................12
In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152 (D.C. Cir. 2007) .................................................................................................17
In re Guantanamo Bay Detainee Litig., 624 F. Supp. 2d 27 (D.D.C. 2009) .....................................................................................13, 14
In re Hearst Newspapers, L.L.C., 641 F.3d 168 (5th Cir. 2011) ...................................................................................................12
iii

Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 5 of 33
In re Knight Publ’g Co., 743 F.2d 231 (4th Cir. 1984) ...................................................................................................17
In re Leopold to Unseal Certain Elec. Surveillance Appls. & Orders, 964 F.3d 1121 (D.C. Cir. 2020) ...........................................................................................9, 10
In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998) ...........................................................................................17, 18
In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) .................................................................................................9
In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) ...................................................................................................21
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994).................................................................................................................12
Jennings v. Rodriguez, 138 S. Ct. 830 (2019) .................................................................................................................7
Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) .................................................................................................10
Levine v. United States, 362 U.S. 610 (1960).................................................................................................................20
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006).....................................................................................................13
Maldonado v. Macias, 150 F. Supp. 3d 788 (W.D. Tex. 2015)....................................................................................20
Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017) .................................................................................................23
Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322 (D.D.C. Sept. 5, 2019), appeal dismissed sub nom. Mons v. Wolf, No. 19-5306, 2020 WL 3635095 (D.C. Cir. June 29, 2020)...........................................................................................................3
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012).....................................................................................................12
iv

Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 6 of 33
Newsday LLC v. Cty. of Nassau, 730 F.3d 156 (2d Cir. 2013).....................................................................................................12
Ngo v. INS, 192 F.3d 390 (3d Cir. 1999)...............................................................................................15, 20
Nightingale v. U.S. Citizenship & Immigration Servs., 333 F.R.D. 449 (N.D. Cal. 2019).............................................................................................15
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978).................................................................................................................18
Press-Enterprise Co. v. Super. Ct., 464 U.S. 501 (1984).....................................................................................................10, 11, 16
Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986)...................................................................................................10, 11, 14, 16
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)...................................................................................................13
R.I.L-R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) .......................................................................................7, 16
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).......................................................................................................9, 11, 13
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678 (11th Cir. 2001) .................................................................................................16
Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) .............................................................................................15, 20
Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir. 1988) ...................................................................................................13
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008).....................................................................................................16
SEC v. Am. Int’l Grp., 712 F.3d 1 (D.C. Cir. 2013) .....................................................................................................18
Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003) .................................................................................................20
v

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Tavoulareas v. Washington Post Co., 111 F.R.D. 653 (D.D.C. 1986)...................................................................................................9
U.S. ex rel. Durham v. Prospect Waterproofing, Inc., 818 F. Supp. 2d 64 (D.D.C. 2011) ...........................................................................................22
United States v. Alcantara, 396 F.3d 189 (2d Cir. 2005).....................................................................................................12
United States v. Doe, 356 F. App’x 488 (2d Cir. 2009) .............................................................................................17
United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) .......................................................................................9, 18, 21
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) ...........................................................................................20, 23
United States v. Index Newspapers LLC, 766 F.3d 1072 (9th Cir. 2014) ...........................................................................................15, 20
United States v. Rosen, 487 F. Supp. 2d 703 (E.D. Va. 2007) ......................................................................................21
United States v. Schlette, 842 F.2d 1574 (9th Cir. 1988) .................................................................................................12
United States v. Thompson, 199 F. Supp. 3d 3 (D.D.C. 2016) .............................................................................................22
Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) .................................................................................................10
State Cases Mokhiber v. Davis,
537 A.2d 1100 (D.C. 1988) .....................................................................................................19 Constitutional Provisions U.S. Const. amend. I .............................................................................................................. passim U.S. Const. amend. V.................................................................................................................3, 20 U.S. Const. amend. XIV ................................................................................................................20 Federal Statutes 8 U.S.C. § 1182(d)(5)(A) .................................................................................................................2
vi

Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 8 of 33 Administrative Procedure Act..........................................................................................................3 FOIA ..............................................................................................................................................15 Immigration and Nationality Act .....................................................................................................2 Rules Federal Rules of Civil Procedure Rule 24 .......................................................................................1 Regulations 8 C.F.R. § 212.5(b) ..........................................................................................................................2 8 C.F.R. § 235.3(c).......................................................................................................................2, 3
vii

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The Center for Investigative Reporting, d/b/a Reveal from The Center for Investigative Reporting (“CIR” or “Proposed Intervenor”), by and through undersigned counsel, respectfully submits this memorandum of points and authorities in support of its motion seeking leave to intervene under Rule 24 of the Federal Rules of Civil Procedure, for the limited purpose of requesting the unsealing of Defendants’ parole determinations for the benefit of the public interest.
I. PRELIMINARY STATEMENT The policies and practices of the Department of Homeland Security (“DHS”), including how DHS adjudicates asylum cases, and detains individuals throughout the process are some of the most discussed issues before our nation today. Indeed, DHS’s detention policies have become a matter of heightened public concern since the rise of COVID-19 escalated the importance of health precautions taken inside detention centers. This litigation—a class action brought by asylees challenging DHS’s failure to follow its parole policies—is thus of immense interest to U.S. citizens and others around the world, who seek to understand whether the government is systematically detaining individuals without the possibility of parole, and equally seek to monitor the government’s progress to ensure that justice is done. None of this is possible if DHS is permitted to keep its monthly productions of parole determinations indefinitely under seal, as is now the case. Accordingly, CIR, the oldest non-profit investigative newsroom in the country, now moves this Court, on behalf of the public, to unseal Defendants’ parole determinations, to better inform the American public about this critically important issue. Specifically, CIR seeks to vindicate the public’s First Amendment and common-law rights of access to judicial records, both of which apply to the parole determinations at issue here. Although these rights of access may be overcome by compelling and narrowly-tailored government interests in keeping the documents under seal,
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no such interests exist here, especially where similar records involving detainees have previously been disclosed. See infra Section III(B)(2-3). The only possible interest in sealing the parole determinations is protecting Plaintiffs’ privacy, but this concern is easily addressed by redacting Plaintiffs’ personally identifying information in the documents (i.e. redacting names and Anumbers)—to which CIR readily agrees. Courts have applied such redactions in similar cases involving immigration records. Otherwise, there is no justification for maintaining government secrecy—for years—especially where, as here, there is great public interest in dissemination.
II. BACKGROUND A. THE DOCUMENTS THAT CIR SEEKS TO UNSEAL
On May 30, 2019, Plaintiffs, a group of asylum seekers detained at the New Orleans ICE Field Office pending their asylum hearings, filed this lawsuit against officials at DHS and ICE. See generally Compl. In that process, Plaintiffs alleged that the agency was not following its parole policy called the Parole Directive. See ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009), ¶ 6.2., https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf (hereinafter, the “Parole Directive”) (Declaration of D. Victoria Baranetsky ¶ 3, Ex. 1) (hereinafter, “Baranetsky Decl.”). The Parole Directive requires the agency make individualized parole determinations and follow certain procedural safeguards, and defines the circumstances under which there is a “public interest” in granting parole pursuant to the Immigration and Nationality Act (“INA”). Specifically, the INA states, asylum seekers who do not pose a flight risk or a danger to the community may be paroled by DHS on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(b); see also 8 C.F.R. § 235.3(c). The Parole Directive
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also instructs ICE Detention and Removal Operations field offices to follow detailed procedures in making parole determinations and establishes reporting requirements “to ensure accountability and compliance with [its] procedures.” Id. Instead of following the Parole Directive, Plaintiffs alleged that Defendants were engaging in systematic detention. See generally Compl. Thus, Plaintiffs filed a motion for preliminary injunction to enjoin Defendants from disregarding their own policy of granting parole, in violation of the Administrative Procedure Act, the INA, and the Due Process Clause of the Fifth Amendment. See Dkt. No. 22-1.
On September 5, 2019, the Court granted Plaintiffs’ motion. See Dkt. No. 33 at 2 (hereinafter, “Preliminary Injunction Order”). In particular, the Court noted that it had recently granted a preliminary injunction on the same issue in the companion case of Damus v. Nielson, 313 F. Supp. 3d 317, 343 (D.D.C. 2018); and that Defendants rested on the same arguments as in that case, aside from a new jurisdictional argument that the Court also rejected. See Mons v. McAleenan, No. CV 19-1593 (JEB), 2019 WL 4225322, at *1 (D.D.C. Sept. 5, 2019), appeal dismissed sub nom. Mons v. Wolf, No. 19-5306, 2020 WL 3635095 (D.C. Cir. June 29, 2020). On September 18, 2019, the Court also ordered the parties to file a Joint Status Report by October 2, 2019 “concerning proposed future reports akin to those in Damus.” Sept. 18, 2019 Minute Order. (In Damus, the Court had ordered Defendants to provide Plaintiffs with individualized parole determinations while the suit was pending. See Damus, Case No: 1:18-cv-00578-JEB, Dkt. No. 33 at 2.)
On October 2, 2019, the parties filed a Joint Status Report (Dkt. 35) setting forth their respective positions on how Defendants should provide these individualized parole determinations to the Court. Defendants proposed that they “submit to the Court on a monthly basis two spreadsheets”—the first of which would “be a manually produced spreadsheet that would reflect
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adjudications for those individuals who had been denied parole prior to September 5, 2019, and who request a new adjudication pursuant to the provisions of the previously submitted class notice”; and the second of which “would track the parole determinations conducted for newly arriving detainees at the New Orleans Field Office for the period beginning September 5, 2019, and on a going forward basis.” Id. at 2.
In these reports, Defendants agreed to include the following information for each class member in detention: (1) name, alien number, and detention facility; (2) date booked into ICE custody; (3) date and outcome of the new parole determination, including whether the provisional class member was ordered released; (4) if applicable, the date of the provisional class member’s release from ICE custody; and (5) if applicable, the reason the provisional class member was denied parole. Id. at 2, 5. Defendants also proposed “filing both forms of monthly reports under seal . . . .” Id. at 3. On October 7, 2019, the Court ordered Defendants to issue their reports “in the manner [they] proposed . . . in the Status Report.” Oct. 7, 2019 Minute Order.
On November 24, 2019, the parties filed their Stipulated Protective Order, which provided that: “The Court authorizes counsel for Defendants by this Order to file under seal reports (including in chart form) referenced in the minute order dated October 7, 2019.” Dkt. No. 40 ¶ 8. The Court adopted this Stipulated Order the next day in a Minute Order on the docket, see Nov. 25, 2019 Minute Order, and thereafter ordered Defendants to submit their first monthly report by December 6, 2019, see Nov. 26, 2019 Minute Order. Accordingly, the Court never entered an order considering the First Amendment or common-law implications of the sealing, nor did the parties brief these issues. See generally id. Rather, starting on December 6, 2019 and continuing on a monthly basis thereafter, Defendants simply filed these reports under seal. See Dkt. Nos. 42, 44, 56, 58, 59, 71, 80, 83, 91.
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On May 13, 2020, Plaintiffs filed a motion for contempt and additional discovery, stating that—based in part on their review of the monthly reports provided by Defendants—Defendants had violated the Preliminary Injunction Order. Dkt. No. 76. On July 22, 2020, the Court granted in part Plaintiffs’ motion, finding that they had raised “a sufficient question of [Defendants’] noncompliance.” Dkt. No. 89. In reaching this conclusion, the Court focused on data from Defendants’ monthly productions of parole determinations—namely the fact that “[i]n the roughly seven months following this Court’s Order on September 5, 2019, the New Orleans Field Office granted approximately 13.5% of total parole applications. . . . That figure stands in stark contrast to the aforementioned 75.5% grant rate in 2016.” Id. at 4. The litigation is still ongoing, and it is anticipated that, at the close of discovery, both parties will move for summary judgment and Plaintiffs may move for permanent injunctive relief.
Because of the immense public interest in the parole determinations at issue in this case, counsel for CIR asked counsel for both parties if they would stipulate to the unsealing of these parole determinations. Plaintiffs’ counsel represented that his clients will not oppose the motion, so long as Plaintiffs’ privacy is maintained through easily employed redactions (such as names and A-numbers). See Baranetsky Decl. ¶ 4, Ex. 2. Defendants’ counsel opposed the unsealing request, and stated that he would “take a further position after having an opportunity to review the motion as filed.” Id. ¶ 5, Ex. 3. Now, CIR files the instant motion to unseal the documents, which are currently in the custody of the Clerk of Court as sealed records of this proceeding. CIR is committed to making publicly available whatever portion of the records are unsealed in a way that educates the public through its reporting and by providing context for these important documents.
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B. PROPOSED INTERVENOR’S INTEREST ON BEHALF OF THE PUBLIC Founded in 1977, Proposed Intervenor CIR is the oldest investigative newsroom in
America listened to by millions of public radio listeners around the country and nearly 3 million podcasts listeners every month. See About Us, REVEAL, https://revealnews.org/about-us/ (Baranetsky Decl. ¶ 6, Ex. 4). CIR operates Reveal, an online news site at revealnews.org, and Reveal, a weekly public radio show. Id. It has received numerous awards for its reporting and been a finalist for various awards like the Pulitzer Prize and Oscar for best documentary. Id. As an investigative newsroom, CIR is uniquely situated to assess the desire of its listeners, viewers, and readers have to view the unsealed court records. That desire remains voracious. Given the public outcry surrounding ongoing decisions made by DHS involving asylees as well as other related practices, the public has an immediate and overwhelming interest in understanding the facts surrounding the agency’s decision-making over time, particularly those affecting detainees.
Indeed, as recent news media reports have shown, DHS’s actions regarding the detention of immigrants are perhaps some of the most reported on stories of the year. See Jonathon Blitzer, How Stephen Miller Manipulates Donald Trump to Further His Immigration Obsession, NEW YORKER, Feb. 21, 2020, https://www.newyorker.com/magazine/2020/03/02/how-stephen-millermanipulates-donald-trump-to-further-his-immigration-obsession (Baranetsky Decl. ¶ 7, Ex. 5); Tara Golshan, The 2020 Immigration Debate, Explained, VOX, July 29, 2019, https://www.vox.com/2019/7/29/6741801/2020-democrat-presidential-immigration-debate (Baranetsky Decl. ¶ 8, Ex. 6). Additionally, public outcry over DHS’s actions has led political candidates and members of Congress to call for increased transparency and reform. Id. (summarizing six presidential candidates’ plans for reform); Letter from Rep. Jason Crow et al., to Matthew Albence, Acting Director, U.S. Immigration & Customs Enforcement (Apr. 20, 2020),
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https://crow.house.gov/sites/crow.house.gov/files/Letter%20to%20Acting%20Director%20Albe nce%20to%20Provide%20Non-ICE%20Employee%20COVID-19%20Data.pdf (Baranetsky Decl. ¶ 9, Ex. 7) (letter from twelve members of Congress requesting increased transparency in ICE’s policies).
Additionally, DHS’s power to make parole determinations has taken on a new salience during the COVID-19 pandemic, as failure to grant parole can put detainees at substantial risk of contracting the virus in crowded ICE detentions centers. See Laura C. Morel, Inside ICE Lockdown: Face Masks Made of Socks, No Hand Sanitizer and Growing Tensions, REVEAL, Apr. 7, 2020, https://www.revealnews.org/article/inside-ice-lockdown-face-masks-made-of-socks-nohand-sanitizer-and-growing-tensions/ (Baranetsky Decl. ¶ 10, Ex. 8). The fact that ICE has total discretion to release many of the detainees in its custody, and could unilaterally prevent the “foreseeable disaster” of putting thousands of detainees at risk for COVID-19, has only fed public interest and criticism of the agency’s practices. Noah Lanard, ICE Is Ignoring a Simple Way to Slow the Spread of Coronavirus: Let People Out of Detention, MOTHER JONES, Mar. 13, 2020, https://www.motherjones.com/politics/2020/03/ice-is-ignoring-a-simple-way-to-slow-the-spreadof-coronavirus-let-people-out-of-detention/ (Baranetsky Decl. ¶ 11, Ex. 9).1
In providing the American public with access to these important government actions, there is no substitute for the insight and illumination that only the judicial records can provide. See, e.g., Noah Lanard, 7 Detainees Sued ICE. Then They Were Transferred to a Notorious Alabama Jail.,
1 “Ensuring that asylum seekers have access to a meaningful parole process has become even more critical in light of the Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2019)” (enumerating that the parole process is required). Compl. ¶ 6. Similarly, this Court in R.I.L-R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015), preliminarily enjoined a DHS policy of detaining families seeking asylum that was designed to “send[] a message of deterrence” to other migrants. Id. at 188-89.
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MOTHER JONES, July 21, 2020, https://www.motherjones.com/politics/2020/07/seven-detainees-

sued-ice-then-they-were-transferred-to-a-notorious-alabama-jail/ (Baranetsky Decl. ¶ 12, Ex. 10);

Emails Show Officials Blocked Coronavirus Testing During Outbreak at Mesa Verde ICE Jail,

DEMOCRACY

NOW,

Aug.

7,

2020,

https://www.democracynow.org/2020/8/7/headlines/emails_show_officials_blocked_coronavirus

_testing_during_outbreak_at_mesa_verde_ice_jail (Baranetsky Decl. ¶ 13, Ex. 11); Monique O.

Madan, Miami Federal Judge Orders a New Fact-Finder to Investigate ICE Detention Centers,

MIAMI

HERALD,

July

20,

2020,

https://www.miamiherald.com/news/local/immigration/article244346252.html (Baranetsky Decl.

¶ 14, Ex. 12); Rebecca Klar, Watchdog Suing ICE, DHS, CBP to Release Records of Deaths in

Custody, THE HILL, July 23, 2020, https://thehill.com/regulation/court-battles/508701-watchdog-

suing-ice-dhs-cbp-to-release-records-of-deaths-in-custody (Baranetsky Decl. ¶ 15, Ex. 13).

Moreover, it is unclear if the sealed records here—some of which date back a year—are entirely

stale. Thus, unsealing appears even more appropriate because countervailing interests seem

nonextant—where these records appear to have no putative harm and can only provide historical

context for the public on the government’s decisions. Additionally, as stated above, CIR consents

to any necessary redactions to the sealed documents to protect the asylum-seekers’ personal

privacy—further indicating that no countervailing interests exist.

III. ARGUMENT

A. CIR SHOULD BE PERMITTED TO INTERVENE FOR THE LIMITED PURPOSE OF UNSEALING COURT RECORDS.

The press has standing to assert the right of public access to court records and proceedings.

See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 609 n.25 (1982) (“representatives of the

press and general public must be given an opportunity to be heard on the question of their

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exclusion” from court proceedings) (citation and internal quotation marks omitted); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586 n.2 (1980) (“[T]he institutional press is the likely, and fitting, chief beneficiary of a right of access because it serves as the ‘agent’ of interested citizens, and funnels information about trials to a large number of individuals.”); see also In re Leopold to Unseal Certain Elec. Surveillance Appls. & Orders, 964 F.3d 1121, 1134 (D.C. Cir. 2020). The D.C. Circuit has long allowed limited intervention for the purpose of challenging the sealing of judicial documents. United States v. El-Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997) (media organizations intervening in criminal proceedings to challenge sealing of plea agreement).
The D.C. Circuit also routinely permits non-party news organizations to intervene in civil cases for the limited purpose of requesting that records be unsealed. See, e.g., In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1327 (D.C. Cir. 1985) (media organization’s intervention in defamation action to challenge sealing); In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 11 (D.D.C. 2013) (newspaper’s intervention to unseal settlement documents in a civil case); Tavoulareas v. Washington Post Co., 111 F.R.D. 653, 655 (D.D.C. 1986) (media organization’s intervention to unseal discovery materials in a civil case); see also Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017) (allowing intervention in habeas corpus proceeding for the purpose of seeking unsealing of “classified videotapes”).
CIR has been reporting on the questions involving this case.2 Access to the records at issue is critical for CIR to understand the basis of the Court’s rulings, and to present readers with a full and accurate account of the proceedings and historical decisions that helped lead Defendants to their current state of affairs. Consistent with the authorities discussed above, CIR respectfully
2 See, e.g., Morel, supra at 7. 9

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requests leave to intervene for the limited purpose of asserting the public’s (and its own) right of access and challenging the sealing of records in this matter. B. THERE IS A STRONG PRESUMPTION THAT THE RECORDS IN THIS CASE
ARE OPEN TO THE PUBLIC. Now, years after this case was initially filed, this motion presents an opportune time to unseal the court records related to one of the most impactful and important news stories vital to the public interest today. The sealed documents in this case are subject to the First Amendment and common-law rights of access, and there are no countervailing government interests sufficient to overcome these rights. Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991). 1. The First Amendment and Common Law Rights of Access Apply to Civil
Court Records Involving Detainment to Ensure Accountability and Integrity. Both the First Amendment and common law provide the public and the press with a presumptive right of access to a wide range of court records. Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986) (“Press-Enterprise II”) (preliminary hearings); Press-Enterprise Co. v. Super. Ct., 464 U.S. 501 (1984) (“Press Enterprise I”) (voir dire); Globe Newspaper, 457 U.S. 596 (criminal trials). Building on these cases, the D.C. Circuit has declared that “[t]he first amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed.” Washington Post, 935 F.2d at 287 (emphasis added). The common-law right of access is an exceptionally broad right. Only “a narrow range of documents” is exempt from the common-law right of public access. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); see also In re Leopold, 964 F.3d at 1127 (explaining importance and breadth of right in D.C. Circuit).
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2. The Court Should Unseal the Parole Determinations According to the First Amendment Right of Access.
The First Amendment dictates under its two-part test that the parole determinations— involving detainment of individuals—at issue in this case should be disclosed. There are two considerations for courts when deciding whether a particular judicial record is subject to the First Amendment presumption in favor of access. Press-Enterprise II, 478 U.S. at 8. The first is “whether the place and process have historically been open to the press and general public. Id. The second is “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. Where a qualified public right of access exists, the records cannot be closed unless “specific, on the record findings are made demonstrating that ‘closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. at 13-14 (quoting Press-Enterprise I, 464 U.S. at 510).
Under the first prong of the Press-Enterprise test (the historic-availability prong), the right of access to these parole determinations begins with the historically indisputable right of access to civil and criminal trials, particularly where there are questions of detention at hand, in order to ensure a just and fair process has been applied. Since the Norman Conquest, publicity of criminal trials has allowed “people not actually attending [trials to] . . . have confidence standards of fairness are being observed . . . and that deviations will become known.” Press-Enterprise I, 464 U.S. at 508. “Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Id.; see also Richmond Newspapers, 448 U.S. at 569 (noting that as far back as the 17th century, leading English jurists “saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.”).
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Following this historic pattern, courts have recognized that the public has a qualified First Amendment right of access to numerous types of judicial records in various analogous proceedings, particularly where detainment is at issue. For instance, in addition to the right applying to nearly all facets of a criminal trial, see, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 297-98 (2d Cir. 2012) (collecting cases), circuit courts across the country have universally extended the right to cover records such as presentence reports, United States v. Schlette, 842 F.2d 1574, 1582-83 (9th Cir. 1988), and sentencing hearings. In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176 (5th Cir. 2011) (finding presumption of access, in accord with decisions by “the Second, Fourth, Seventh, and Ninth Circuits”); see also United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) (“There is little doubt that the First Amendment right of access extends to sentencing proceedings.”).
Because the distinction between civil and criminal contempt is “elusive” and often without a difference, see Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 830-31 (1994), numerous courts have held that the public’s right of access applies equally to civil and criminal contempt proceedings, especially where incarceration is at hand. In re Grand Jury Matter, 906 F.2d 78, 86-87 (3d Cir. 1990) (holding that right attaches where incarceration is a possible penalty); see also Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013) (holding that the First Amendment public right of access attaches to “civil contempt proceedings . . . [because they] carry the threat of coercive sanctions”). Given the parole determinations concern detainment of asylees, as well as the fact that detainment is not just a possibility but a definite alternative—these records should be disclosed according to the history prong.
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In line with that trend, although the D.C. Circuit “has neither recognized nor rejected that the First Amendment affords the public a right of access to civil proceedings,” 3 a court within this
Circuit has determined that documents in civil proceedings with a quasi-criminal nature—such as
habeas proceedings—are covered by the First Amendment public right of access, and thus decided
to unseal records analogous to those in this case. In re Guantanamo Bay Detainee Litig., 624 F.
Supp. 2d 27, 35 (D.D.C. 2009). In In re Guantanamo Bay, detainees at Guantanamo Bay
petitioned for habeas relief to challenge the legality of their indefinite detention at that base. The
Court ordered the government to file a “factual return” as to each petitioner, which would contain
the “factual basis upon which [the government was] detaining” the petitioner. 624 F. Supp. 2d at
30. The government sought to seal the unclassified versions of the returns—arguing that they had
made “inadvertent errors” in developing the unclassified returns and accidentally included some
classified information therein. Id. Multiple press organizations sought leave to intervene to
oppose the sealing of these unclassified returns, and the Court granted their motion. In so doing,
the Court held, as a matter of first impression, that the public had a First Amendment right of
access to filings in civil habeas proceedings. Id. at 34-35. Here, the same historical precedent
3 Most circuit courts have also recognized that the First Amendment right of access extends to civil proceedings and records. Dhiab, 852 F.3d at 1099 (Rogers, J., concurring in part and concurring in the judgment) (“Every Circuit to consider the issue has concluded” that same “right of public access applies to civil” proceedings as well) (collecting cases); see also Richmond Newspapers, 448 U.S. at 580 n.17; Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124-27 (2d Cir. 2006) (holding that the First Amendment secures for the public and the press a right of access to civil proceedings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir. 1984) (“the public and the press possess a First Amendment . . . right of access to civil proceedings”); Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir. 1988) (“We believe that the more rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case.”); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178-79 (6th Cir. 1983) (“The historical support for access to criminal trials applies in equal measure to civil trials.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (“[T]he policy reasons for granting public access to criminal proceedings apply to civil cases as well.”).
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should apply, as the “factual returns” at issue in that case are similar documents to the parole determinations in this case, in that they involve the government’s explanation of a detained person’s status.
Logic—the second factor of the Press-Enterprise II test—“whether public access plays a significant positive role in the functioning of the particular process in question”—also dictates the release of the parole determinations. 478 U.S. at 8. For instance, in the Court’s reasoning in In re Guantanamo Bay is also relevant to that factor. In finding the factor satisfied, the Court there noted that: (1) “[p]ublic interest in Guantanamo Bay generally and these proceedings specifically has been unwavering . . . [and the] public’s understanding of the proceedings . . . [would be] incomplete without the factual returns”; (2) the habeas proceedings at issue were of “critical importance and relevance,” because they were the “vehicle for [the detainees] to challenge the government’s decision to detain [them]”; and (3) “opening the judicial process ensures actual fairness as well as the appearance of fairness.” 624 F. Supp. 2d at 37-38.
All of those interests are present in this case as well. As in In re Guantanamo Bay, there is enormous public interest in DHS’s treatment of detainees. Indeed, as recent news media reports have shown, DHS’s actions regarding the detention of immigrants are perhaps one of the most reported on stories of the year,4 and have taken on a new salience during the COVID-19 pandemic, as failure to grant parole can put detainees at substantial risk of contracting the virus in crowded ICE detentions centers.5 This litigation, like the habeas proceedings in In re Guantanamo Bay, is also of critical importance as it constitutes a means for some of the most vulnerable in our society to challenge the circumstances of their detention without due process. See Boumediene v. Bush,
4 See Blitzer, supra at 1; Golshan, supra at 1. 5 Morel, supra at 7.
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553 U.S. 723, 797 (2008) (“Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.”); see also Rosales-Garcia v. Holland, 322 F.3d 386, 408 (6th Cir. 2003) (en banc) (finding serious constitutional problems with indefinite detention of excludable noncitizens); Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) (same).6 “Public access” to parole determinations “provides a check on the process by ensuring that the public may discover when a [asylee] has been held in contempt and held in custody.” United States v. Index Newspapers LLC, 766 F.3d 1072, 1093 (9th Cir. 2014). And without access to Defendants’ parole determinations, the public’s understanding of this litigation and DHS’s practices is incomplete.7
Furthermore, logic also shows that there are no countervailing harms that could cause concern. For instance, grand jury information is kept secret for four “distinct interests” not at issue here. Cf. Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 218-19 (1979) (listing four interests inapplicable here). Here, many of the parole determinations are likely stale as time has passed and circumstances have changed—some individuals may no longer even be in detention or in this country. Accordingly, because the public has a First Amendment right of access to
6 See also Nightingale v. U.S. Citizenship & Immigration Servs., 333 F.R.D. 449 (N.D. Cal. 2019) (certifying class of noncitizens in action against DHS alleging agency engaged in pattern or practice of failing to make timely determinations on noncitzens’ FOIA requests for their alien registration files); Abdi v. Duke, 280 F. Supp. 3d 373, 2017 WL 5599521, at *23 (W.D.N.Y. Nov. 17, 2017) (As a federal court said in a similar case involving asylee detention, that class members’ “physical and psychological impairments” resulting from their “prolonged confinement” established that detainees were irreparably harmed.), vacated in part on other grounds sub nom. Abdi v. McAleenan, 405 F. Supp. 3d 467 (W.D.N.Y. 2019). 7 In fact, the stated purpose of the 2009 Parole Directive “is to ensure transparent, consistent and considered ICE parole determinations for arriving aliens seeking asylum in the United States.” Parole Directive at ¶ 1 (emphasis added).
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Defendants’ parole determinations under the Press-Enterprise II test, the Court should grant CIR’s motion in the absence of a compelling and narrowly-tailored government interest to the contrary.
3. Continued Blanket Sealing of Defendants’ Parole Determinations Cannot Serve Any Compelling Governmental Interest, Especially Where Anonymity Can Easily Be Provided Through Redactions.
Because the constitutional right of access applies to the records of this case, the government bears the burden to justify any sealing or redaction of records. In re Appl. of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 90 (D.D.C. 2008). That heavy burden demands the government demonstrate that closure “‘is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.’” Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 615 (1982). “The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510. At this stage, there has been no public explanation as to why the documents in these proceedings must be sealed in full. See In re Capital Cities/ABC, Inc.’s Appl. for Access to Sealed Transcripts, 913 F.2d 89, 95 (3d Cir. 1990). Nonetheless, there can be no compelling interest that justifies withholding of the parole determinations wholesale, particularly where there is such a demonstrable public interest and redactions can easily be put in place to quell any privacy concerns.
The ability for countless cases to move forward with redacted names while still outlining legal arguments and at least part of the underlying factual circumstances, see, e.g., R.I.L-R, 80 F. Supp. 3d at 172; Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189-90 (2d Cir. 2008); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684-87 (11th Cir. 2001); Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000), demonstrates that it is easily feasible for portions of these parole determinations to be made open to public view without
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jeopardizing any compelling governmental interest. Indeed, this Court and the D.C. Circuit have routinely permitted parties to proceed anonymously. See, e.g., Doe v. Stephens, 851 F.2d 1457, 1459 n.2 (D.C. Cir. 1988); Doe v. U.S. Dep’t of Justice, 660 F. Supp. 2d 31, 40 (D.D.C. 2009); Doe v. MAMSI Life & Health Ins. Co., 471 F. Supp. 2d 139 (D.D.C. 2007); Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 117-18 (D.D.C. 2003). So, too, can parole determinations easily be made anonymous.
Moreover, large amounts of parole stories, determinations and information have already been made public through media accounts and other channels, Laura Villagran, Cuban Asylum Seeker Remains Detained by ICE Without Parole, NBC, Feb. 2, 2020, https://www.nbcdfw.com/news/local/texas-news/cuban-asylum-seeker-remains-detained-by-icewithout-parole/2307893/ (Baranetsky Decl. ¶ 16, Ex. 14) (discussing multiple disclosed parole denials), so keeping such information under seal is not necessary—or justifiable. See In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154-55 (D.C. Cir. 2007) (ordering the “release” of “those redacted portions of [the] concurring opinion” where “the ‘cat is out of the bag’” given that one grand jury witness “discusse[d] his role on the CBS Evening News”); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998) (noting that where a witness’s attorney “virtually proclaimed from the rooftops that his client had been subpoenaed,” that fact was no longer protected by grand jury secrecy). And redacting portions of these parole determinations is a more narrowly tailored (and thus less-restrictive) alternative to withholding them wholesale. See United States v. Doe, 356 F. App’x 488, 490 (2d Cir. 2009) (“Where . . . a party seeks to seal the record of criminal proceedings totally and permanently, the burden is heavy indeed.” (emphasis in original)); In re Knight Publ’g Co., 743 F.2d 231, 234 (4th Cir. 1984) (citing Press-Enterprise I). In Dow Jones, for instance, the D.C. Circuit recognized that the trial court must consider whether
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redactions, rather than sealing whole documents, would be possible. 142 F.3d at 502, 506. This Court should do the same for the parole determinations.
4. The Court Should Unseal the Parole Determinations According to the Common Law Right of Access.
The public’s common law right of access provides further justification to unseal the filings in this action. “The common law right of access to judicial records antedates the Constitution.” El-Sayegh, 131 F.3d at 161-62. It provides a “right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597-98 (1978) (internal footnote omitted). In analyzing whether the common law right of access applies, DC courts apply a two-step inquiry: “(1) whether the document being sought is a judicial record; and (2) whether the interests favoring public access outweigh those interests favoring nondisclosure.” Herron v. Fannie Mae, No. CV 10-943 (RMC), 2016 WL 10677615, at *1 (D.D.C. June 20, 2016). Under both steps of this inquiry, it is clear that the common law right of access applies to Defendants’ productions of the parole determinations.
First, these productions undoubtedly qualify as judicial records. Courts have determined that whether a document qualifies as a “judicial record” is based on “the role it plays in the adjudicatory process.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (quoting El-Sayegh, 131 F.3d at 163) (explaining that the common law protects the public’s right to inspect and copy “those ‘government document[s] created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived’” (quoting Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 905 (D.C. Cir. 1996))). “Something ‘intended to influence’ a court’s pending decision—a party’s brief, for example—is almost certainly a judicial record, while a document about which the court ‘made no decisions’ and did not ‘otherwise rel[y]’ does not qualify.” Cable News Network, Inc. v. FBI, 384 F. Supp.
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3d 19, 41-44 (D.D.C.) (Boasberg, J.) (internal citation omitted), recons. denied, 401 F. Supp. 3d 187 (D.D.C.), appeal filed, No. 19-5278 (D.C. Cir. Oct. 21, 2019). Here, the Court ordered Defendants to file these parole determinations on the docket to monitor their compliance with the Court’s Preliminary Injunction Order. See Oct. 7, 2019 Minute Order. The Court relied on these documents in ruling on Plaintiffs’ contempt motion (see Dkt. No. 89 at 4), and will very likely need to consider them when ruling upon the parties’ upcoming summary judgment motions, as well as Plaintiffs’ anticipated motion for permanent injunctive relief.8 Accordingly, these parole determinations are critical to the Court’s adjudicatory process, and therefore constitute “judicial records” to which the common law right of access presumptively applies.
“A court’s conclusion that a document constitutes a judicial record triggers a ‘strong presumption in favor of public access.’” Cable News Network, 384 F. Supp. 3d at 41-44 (quoting EEOC v. Nat’l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). At this second step of the unsealing analysis, DC courts weigh the following six facts to determine whether the interests favoring public access outweigh those favoring nondisclosure: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. United
8 Defendants’ monthly productions do not constitute mere discovery materials, which courts have, on occasion, held do not qualify as judicial records where they are only shared between the parties. See Mokhiber v. Davis, 537 A.2d 1100, 1109, 1111 (D.C. 1988) (per curiam) (presumptive right of public access applies to motions filed with the court concerning discovery, evidence submitted with such motions, and the court's depositions; but presumptive right of public access does not apply to depositions, interrogations, or the documents obtained in discovery that are neither submitted as evidence at trial nor filed in connection with motions).
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States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980). Here, all six Hubbard factors weigh in favor of public access for the parole determinations CIR seeks to unseal.
First, there is an enormous need for public access to these documents. Public oversight is especially important where, as here, the due process rights of those most vulnerable in our society is at issue. See, e.g., Rosales-Garcia, 322 F.3d at 408-410 n.29 (finding serious constitutional problems with indefinite detention of excludable noncitizens, noting, “[N]o circuit has concluded that the Due Process Clauses of the Fifth and Fourteenth Amendments do not apply to excludable aliens.”); Ngo, 192 F.3d at 396 (same); Ahad v. Lowe, 235 F. Supp. 3d 676, 687-88 (M.D. Pa. 2017) (“rising sea of case law” “has consistently determined that detained aliens,” including arriving noncitizens, “are entitled to some essential measure of due process”); Maldonado v. Macias, 150 F. Supp. 3d 788, 800 (W.D. Tex. 2015) (“[I]t is clear that aliens—even inadmissible aliens—are entitled to some constitutional protections, including some amount of due process.”). Additionally, “[p]ublic access” to parole determinations “provides a check on the process by ensuring that the public may discover when a[n] [asylee] has been held in . . . custody.” Index Newspapers LLC, 766 F.3d at 1093; see also Levine v. United States, 362 U.S. 610, 615-16 (1960). This Circuit has also expressed the importance of federal agencies following their own rules, Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005); see also Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies to follow their own rules, even gratuitous procedural rules that limit otherwise discretionary actions.”), and there is no other way to know whether parole policies are followed other than for the public to have some insight into the actual parole determinations.
The second factor—the extent of previous public access—also weighs in favor of unsealing. As set forth above, courts have previously granted public access to judicial records in
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civil cases where those records were significant to the adjudicatory process, and also to civil proceedings of a quasi-criminal nature—such as habeas proceedings. Additionally, courts have historically applied the right of access in circumstances where there is a need for government accountability, particularly involving discretionary choices made by the executive branch. See, e.g., United States v. Rosen, 487 F. Supp. 2d 703, 716-17 (E.D. Va. 2007) (“Of course, classification decisions are for the Executive Branch, and the information’s classified status must inform an assessment of the government’s asserted interests under Press-Enterprise. But ultimately, trial judges must make their own judgment about whether the government’s asserted interest . . . is compelling or overriding.”); In re Washington Post Co., 807 F.2d 383, 391-92 (4th Cir. 1986) (“History teaches us how easily the spectre of a threat to ‘national security’ may be used to justify a wide variety of repressive government actions. A blind acceptance by the courts of the government’s insistence on the need for secrecy . . . would impermissibly compromise the independence of the judiciary and open the door to possible abuse.”). This tradition “ensure[s] that th[e] constitutionally protected ‘discussion of governmental affairs’ is an informed one.” Globe Newspaper, 457 U.S. at 604-05 (citation omitted). To accept otherwise would be to give the Executive branch unilateral power to determine when the First Amendment access right applies. Indeed, the D.C. Circuit has emphasized repeatedly that “it is the court, not the Government, that has discretion to seal a judicial record.” Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir. 2007); see also El Sayegh, 131 F.3d at 160 (same).
The third through fifth factors also weigh in favor of unsealing. These factors—(3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; and (5) the possibility of prejudice to those opposing disclosure—can be considered together. In this case, Plaintiffs have not objected to disclosure of
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the parole determinations as long as their names and identifying information are redacted prior to unsealing—to which CIR has consented.9 Defendants have objected, but have not provided a justification for doing so, nor explained how they would be prejudiced by the unsealing. Courts have held that unsupported objections to unsealing, especially by parties, carry little weight. See Hyatt v. Lee, 251 F. Supp. 3d 181, 185 (D.D.C. 2017) (noting that “litigants to this proceeding have a lesser claim to privacy than third parties”); see also In re Appl. of N.Y. Times, 585 F. Supp. 2d at 92-94 (granting The New York Times’ motion to unseal warrant materials after an investigation concluded, noting that the government-defendant failed to establish any possibility of prejudice); Cable News Network, 384 F. Supp. 3d at 41-44 (granting access to judicial records where the FBI failed to “articulate [a sufficient] basis for the Court to conclude that [the fourth and fifth factors] favor[ed] withholding.”).
Finally, the sixth factor—the purposes for which the documents were introduced during the judicial proceedings—also weighs in favor of unsealing. “The more relevant a pleading is to the central claims of the litigation, the stronger the presumption of unsealing the pleading becomes.” United States v. Thompson, 199 F. Supp. 3d 3, 12 (D.D.C. 2016); see also U.S. ex rel. Durham v. Prospect Waterproofing, Inc., 818 F. Supp. 2d 64, 69 (D.D.C. 2011) (explaining that “there is less of a pressing concern to unseal pleadings if they are not relevant to the claims,” for example, if they were not used at trial or relied upon by the trial judge in his or her decision). Here, it is indisputable that Defendants’ monthly productions of parole determinations are critical to the
9 Courts may order government-defendants to redact documents prior to unsealing them. See In re Appl. of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 94 (D.D.C. 2008) (granting The New York Times’ motion to unseal and requiring the governmentdefendant “to release the warrant materials, redacting limited portions that would tend to reveal the identity of a confidential informer . . . [and to] promptly provide the Court with the proposed redactions of their records.”).
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merits of the case. The Court itself acknowledged that it ordered the Defendants to file these monthly reports “so that it could monitor compliance with the Directive and the injunction.” Dkt. No. 128 at 2. These reports are direct proof of whether Defendants are, in fact, changing their practice and granting parole to any asylees or instead, continuing to mass-incarcerate them without due process. Accordingly, these reports will continue to be of great importance in this litigation as they will likely provide one of the main sources of evidence for the parties at the summary judgment and permanent injunction stage.
Overall, because none of these six Hubbard factors overcomes the common law presumption in favor of disclosure of judicial records, the Court should grant the motion and allow the public to have access to Defendants’ parole determinations. See Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 668-69 (D.C. Cir. 2017) (holding common law right of access attached to district court briefs and record); see also EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1410 (D.C. Cir. 1996).
IV. CONCLUSION For all the reasons stated, CIR respectfully requests that this Court grant its request for limited person intervention; order the immediate unsealing of the parole determinations filed under seal in this action; and order that any future parole determinations be filed as unsealed. Date: August 20, 2020
/s/ Chelsea T. Kelly Chelsea T. Kelly (DC Bar No. 1045673) Davis Wright Tremaine LLP 1301 K Street NW, Suite 500 East Washington, DC 20005 Phone: (703) 850-6317 Fax: (202) 973-4450 Email: chelseakelly@dwt.com
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Case 1:19-cv-01593-JEB Document 95-1 Filed 08/20/20 Page 32 of 33 Counsel for Third-Party Intervenor The Center for Investigative Reporting Victoria Baranetsky (pro hac vice pending) General Counsel The Center for Investigative Reporting 1400 65th St., Suite 200 Emeryville, CA 94608 Telephone: 510-982-2890, Ext. 390 Email: vbaranetsky@revealnews.org Lead Counsel for Third-Party Intervenor The Center for Investigative Reporting
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CERTIFICATE OF SERVICE I certify that on August 20, 2020, I served a copy of the foregoing document on the Court and all parties of record by causing this document to be filed with the clerk of the Court through the CM/ECF system, which will provide electronic notice of this document to all attorneys of record.

Date: August 20, 2020

/s/ Chelsea T. Kelly Chelsea T. Kelly (DC Bar No. 1045673) Davis Wright Tremaine LLP 1301 K Street NW, Suite 500 East Washington, D.C. 20005 Phone: (703) 850-6317 Fax: (202) 973-4450 Email: chelseakelly@dwt.com

Counsel for Third-Party Intervenor The Center for Investigative Reporting

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 Case 1:19-cv-01593-JEB Document 106 Filed 10/05/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANGEL ALEJANDRO HEREDIA MONS, et al.,
Plaintiffs, v.
CHAD WOLF, et al.,
Defendants.

Civil Action No. 19-1593 (JEB)

MEMORANDUM OPINION AND ORDER The Center for Investigative Reporting seeks to intervene here for the limited purpose of requesting the unsealing of certain documents submitted on the docket in this immigration case. See ECF No. 95 (Mot.). More specifically, it desires the release of the Department of Homeland Security’s monthly productions regarding first-time parole determinations, along with redeterminations, for newly arrived immigrants. As Defendants largely do not object, and as the Court believes unsealing warranted, it will grant the Motion with some provisos. No one contests CIR’s ability to intervene here, as our Circuit frequently permits nonparty news organizations to intervene in civil cases for the limited purpose of seeking the unsealing of records. See, e.g., In re: Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1327 (D.C. Cir. 1985). Moving on to the unsealing itself, “the starting point . . . is a ‘strong presumption in favor of public access to judicial proceedings.’” EEOC v. Nat’l Children’s Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)). The D.C. Circuit has established a six-factor balancing test to guide courts faced with a motion to seal or unseal judicial records. See United States v.
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Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980). These factors, which balance the public interest in access against the privacy interest in nondisclosure, are:
(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. Johnson, 951 F.2d at 1277 n.14 (citing Hubbard, 650 F.2d at 317–22). DHS does not challenge that the scale here clearly tips toward disclosure. The Government, instead, proposes two limitations on unsealing. The first, which relates to personal information, is easily resolved. Defendants ask that the names and Alien numbers of potential parolees not be released so as to safeguard their anonymity, see ECF No. 100 (Opp.) at 3, and CIR acknowledges that it “does not request [that] private information be unsealed.” ECF No. 104 (Int. Reply) at 4 n.1. In addition, DHS contends that any unsealing “order should only apply prospectively and that the Court should not order the unsealing of prior monthly submissions, which would be burdensome and of limited benefit to the public . . . .” Opp. at 3–4. The Court disagrees as to the latter position. While DHS believes that the release of past submissions would simply be cumulative, it acknowledges that “information on an earlier spreadsheet may have been corrected, or otherwise updated, on a more recent spreadsheet.” Id. at 2 n.2. As CIR points out, moreover, the D.C. Circuit has explained that “although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever.” In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 964 F.3d 1121, 1133 (D.C. Cir. 2020). As a result, the Court will require prompt release
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of the most recent submission, but give DHS some more time to release redacted versions of the older documents.
The Court, accordingly, ORDERS that: 1. CIR’s Motion to Intervene and Unseal is GRANTED; 2. CIR may INTERVENE; 3. Henceforth, DHS’s monthly submissions to the Court (and its public docket) shall
include both a public version with personally identifiable information redacted — i.e., the first three columns of each spreadsheet — and a sealed version with fully unredacted spreadsheets; 4. DHS shall by October 13, 2020, file a similarly redacted version of ECF No. 99 (the most recent submission) on the docket; and 5. DHS shall by November 9, 2020, file a similarly redacted version of all other prior monthly submissions on the docket.

Date: October 5, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

3

 USCA Case #19-5306 Document #1849386

Filed: 06/29/2020 Page 1 of 1

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 19-5306

September Term, 2019

1:19-cv-01593-JEB

Filed On: June 29, 2020

Angel Alejandro Heredia Mons, et al.,

Appellees

v.

Chad F. Wolf, in his official capacity as Acting Secretary of the Department of Homeland Security, et al.,

Appellants

O R D E R
Upon consideration of appellants’ joint motion for voluntary dismissal of this appeal, it is
ORDERED that the motion be granted and this case be dismissed.
The Clerk is directed to issue the mandate forthwith to the district court.
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Daniel J. Reidy Deputy Clerk


COVID-19 Summary: A class of asylum seekers detained by the New Orleans ICE Field Office filed an emergency motion for a preliminary injunction, requesting that defendants be compelled to conduct individual parole reviews for every detainee and to consider the risk of COVID-19 to them in determining their eligibility for parole.  On April 21, 2020, the court denied the motion for preliminary injunction. <hr>

On May 30, 2019, asylum seekers detained under the jurisdiction of the New Orleans ICE Field Office filed this class action lawsuit under the Administrative Procedure Act and 28 U.S.C.§§ 1361 and 1651 against the Acting Secretary of the Department of Homeland Security (DHS); the Acting Director of ICE; the Acting Executive Associate Director ICE Enforcement and Removal Operations; and the Acting Director of the New Orleans ICE Field Office.  Represented by the ACLU of Louisiana and Southern Poverty Law Center, the plaintiffs argued that DHS has ignored a 2009 Parole Directive, denying parole to more than 98% of arriving asylum seekers.  The plaintiffs also argued that the New Orleans ICE Field Office conducted sham parole reviews and blanket denials of parole, violating their Due Process rights under the Fifth Amendment.  The plaintiffs sought declaratory and injunctive relief preventing the defendants from detaining the plaintiffs without individualized parole reviews that determined the risk of flight or danger to the community.  The plaintiffs' proposed class was "all arriving asylum seekers who receive positive credible fear determinations; and who are or will be detained by U.S. Immigration and Customs Enforcement; after having been denied parole by the New Orleans ICE Field Office."

On May 30, 2019, the case was related to Damus v. Neilsen.  <a href="https://www.clearinghouse.net/detail.php?id=16498">here</a>.

On June 28, 2019, the plaintiffs moved to certify class, proposing that the class be defined as: "(1) all arriving asylum seekers (2) who are found to have a credible fear of persecution or torture and (3) who are or will be detained by U.S. Immigration and Customers Enforcement; (4) after having been denied parole under the authority of the New Orleans ICE Field Office." 

On July 18, 2019, plaintiffs moved for a preliminary injunction to enjoin defendants from continuing to detain asylum seekers without individualized consideration of flight risk or danger to the community. 

On August 5, 2019, the defendants filed a motion to dismiss, arguing that some of the plaintiffs were no longer in ICE custody, others had had their parole requests adjudicated, and additional plaintiffs were no longer eligible for parole.  

On September 5, 2019, Judge James E. Boasberg issued an order granting the plaintiffs' motion for a preliminary injunction, granting the plaintiffs' motion for class certification, and granting in part and denying in part the defendants' motion to dismiss.  In granting the preliminary injunction, Judge Boasberg found that the New Orleans ICE Field Office had ceased to follow the 2009 Directive.  Class certification was granted because the proposed class met the requirements under the Federal Rules of Civil Procedure.  The defendants' motion to dismiss was only granted in regards to plaintiffs' due process claim.  2019 WL 4225322.

On November 1, 2019, the defendants filed a notice of appeal to the D.C. Circuit Court. On November 18, 2019, the appeal was docketed as 19-5306.

On January 9, 2020, Judge Boasberg issued an order directing the defendants to distribute copies of the class notice to all provisional class members.  

On March 31, 2020, in light of the COVID-19 pandemic, the plaintiffs filed an emergency motion for a preliminary injunction.  The plaintiffs sought to compel the defendants to conduct immediate case by case parole assessments for all class members to address the COVID-19 pandemic.  The plaintiffs also requested that defendants be required to consider the risk of COVID-19 to individuals when conducting their individualized assessment.  

On April 7, 2020, the defendants filed a memorandum in opposition to the emergency motion for a preliminary injunction.  They argued that the motion should be denied because plaintiffs had failed to show that ICE had violated the Parole Directive, had failed to establish irreparable harm if they were not given new parole reviews, and that the plaintiffs' request was not in the public interest.  

On April 8, the plaintiffs filed their reply to the defendants' memorandum.  The plaintiffs pointed out that the COVID-19 pandemic continued to worsen and that the continuation of blanket parole denials put the health of plaintiffs and detention officials at the risk of irreparable harm.  

On April 21, 2020, Judge Boasberg denied the plaintiffs' emergency motion for a preliminary injunction, asserting that the court had already enjoined the defendants to follow their parole direct, and thus it was unnecessary to do so again.  The court left open the possibility that plaintiffs could file a motion for contempt asserting that defendants had not complied with the court's original injunction. 

The plaintiffs did just that and filed a motion for order to show cause why the defendants should not be held in contempt for violating the 2019 preliminary injunction order, expedited discovery, and the appointment of a special master on May 12. The plaintiffs argued that the defendants continue to disregard the Parole Directive in violation of the preliminary injunction. They claimed that parole grant rates remained below 25% for redetermination applications and below 20% for first-time applicants and in some cases facilities held zero parole redeterminations in March and April. In their response filed on June 16, the defendants argued that in the recent months ICE had granted parole at rates closer to 30% and that there was not clear and convincing evidence that they were not following the preliminary injunction.

Meanwhile, in the D.C. Circuit Court of Appeals, the defendants filed a motion to voluntarily dismiss the appeal on June 16. The D.C. Circuit granted the motion and dismissed the appeal on June 29. 2020 WL 3635095.

Back in the district court, on July 22, 2020, Judge Boasberg granted the plaintiffs’ motion seeking discovery regarding compliance with the preliminary injunction, a finding of contempt, and appointment of a Special Master in part. He found the plaintiffs raised sufficient question of compliance and ordered limited discovery. He denied without prejudice the motion with respect to the finding of contempt and the appointment of a special master, with these requests to be renewed following discovery and a potential hearing on the defendants’ violations. The parties then began engaging in limited discovery with a joint status report on the discovery due October 30, 2020. 

As the parties engaged in limited discovery, on August 20, 2020, The Center for Investigative Report filed a motion to intervene to unseal the defendants’ monthly production of parole determinations and any future productions in order to inform the public debate over DHS’s application of parole procedures to asylum seekers. Judge Boasberg granted the motion to intervene on October 10. He ordered for DHS’s future monthly submissions to include a public version of the parole determinations without personally identifiable information and for DHS to file redacted versions of prior reports.

The defendants continued to file monthly status reports and both parties continued   joint status reports. A status hearing is scheduled for March 4, 2021. This case is ongoing.