UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARK ANTHONY REID, on behalf of himself and others similarly situated,
Plaintiff/Petitioner
v.
CHRISTOPHER DONELAN, Sheriff of Franklin County, et. al.
Defendants/Respondents

) ) ) ) ) ) ) C.A. NO. 13-cv-30125-MAP ) ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS AND PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE
(Dkt. No. 4 & 5) January 9, 2014 PONSOR, U.S.D.J. I. INTRODUCTION Plaintiff, a lawful permanent resident, has been held in immigration detention for fourteen months pursuant to 8 U.S.C. § 1226(c). He has brought a Petition for Writ of Habeas Corpus, 28 U.S.C. § 2241, seeking an individualized bond hearing to challenge his detention. (Dkt. No. 4.) He has also filed a Motion for Order to Show Cause. (Dkt. No. 5.) Defendants are: Christopher Donelan, Sheriff of Franklin County; David Lanoie, Superintendent, Franklin

County Jail and House of Correction; Jeh Charles Johnson, Secretary of the Department of Homeland Security; John Morton, Director of Immigration and Customs Enforcement (ICE); Dorothy Herrera-Niles, Director, ICE Boston Field Office; Thomas Hodgson, Sheriff of Bristol County; Joseph McDonald, Jr., Sheriff of Plymouth County; Steven Tompkins, Sheriff of Suffolk County; Eric Holder, Attorney General of the United States; Juan Osuna, Director of the Executive Office for Immigration Review; and The Executive Office for Immigration Review.
The decision in Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009), finding a “reasonableness” requirement embedded in § 1226(c), controls this case. Because detention pursuant to § 1226(c) for over six months is presumptively unreasonable, the court will grant Plaintiff’s Petition for Habeas Corpus and deny as moot Plaintiff’s Motion for Order to Show Cause. Furthermore, even if detention after six months were not categorically unreasonable, the facts of this case would still entitle Plaintiff to an individualized bond hearing.
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II. BACKGROUND1 Plaintiff, Mark Anthony Reid, left Jamaica for the United States in 1978 and was admitted as a lawful permanent resident. Although Plaintiff faced a number of hardships growing up, he earned a GED and served in the U.S. Army Reserve for six years. Between 1986 and 2010 Plaintiff amassed an extensive criminal history. His convictions included, inter alia, possession of narcotics, larceny, assault, interfering with an officer, driving with a suspended license, and selling illegal drugs. Relevant for the pending motions are his convictions for selling an illegal drug, third degree burglary, and failure to appear. As a result of those convictions in 2010, Plaintiff was sentenced in Connecticut state court to twelve years in prison, to be suspended after five. After Plaintiff served two years in prison, he was paroled on November 13, 2012. On the same day, ICE took
1 The facts are drawn from Plaintiff’s Petition for Habeas Corpus. (Dkt. No. 4.)
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Plaintiff into custody pursuant to 8 U.S.C. § 1226(c).2 ICE immediately took action to remove Plaintiff. Although Plaintiff conceded the factual allegations underlying the case, he sought relief on two grounds. First, he argued that the Convention Against Torture (CAT) applied. Second, he believed that removal was a disproportionate punishment to the crimes committed.
A hearing on these claims was held before an Immigration Judge (IJ) on February 13, 2013. Two months later, the IJ denied both of Plaintiff’s claims and ordered him deported. Plaintiff appealed to the Board of Immigration Appeals (BIA).
While his immigration case was pending, Plaintiff filed a motion with the IJ requesting a bond re-determination hearing. That motion was argued on June 17, 2013, at the Hartford Immigration Court. The IJ concluded that he lacked
2 Section 1226 of Title 8 governs the detention of noncitizens during immigration removal proceedings. Subsection (c) requires the government to detain certain individuals who have committed a crime enumerated in the statute. § 1226(c)(1). These individuals are not entitled to an individualized bond hearing.
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authority under § 1226(c) to make a bond re-determination
and, therefore, denied Plaintiff’s motion.
On October 23, 2013, nearly half a year after the IJ
ruled on Plaintiff’s claims, the BIA reversed the IJ’s
decision and remanded the case for further proceedings
related to Plaintiff’s CAT claim. An evidentiary hearing
was held on November 19, 2013. On December 17, 2013, the IJ
again denied Plaintiff’s CAT claim. (Dkt. No. 76.)
Plaintiff has indicated that he will appeal that decision to
the BIA. (Id.)
On July 1, 2013, Plaintiff filed the present Petition
for Habeas Corpus and the Motion for Order to Show Cause to
challenge his prolonged immigration detention.3 Counsel
appeared for argument on December 12, 2013, and the court
took the matter under advisement.
3 Plaintiff also filed a Motion for Summary Judgment to challenge ICE’s policy of shackling him during immigration proceedings, absent an individualized determination that such shackling was necessary, (Dkt. No. 1), and a Motion for Class Certification. (Dkt. No. 33.) Defendants responded with a Motion to Dismiss. (Dkt. No. 35.) The shackling issue was postponed based upon the government’s request to submit further briefing. The question of class certification will be addressed in a separate memorandum and order that will soon issue.
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III. DISCUSSION
The answers to two questions dictate the result in this
case. The first question is whether § 1226(c) includes a
“reasonableness” restriction on the length of time an
individual can be detained without a bond hearing. For the
reasons set forth in Bourguignon and repeated below, the
court must conclude that such a reasonableness restriction
does exist. The second question is how to define and apply
a “reasonableness standard.”4
A. § 1226(c) and a “Reasonableness” Limit
The threshold question is whether § 1226(c) imposes a
“reasonableness” limit on the length of time an individual
can be detained in immigration custody without an
individualized bond hearing. This court has previously held
4 Defendants suggest that the claims against all parties except Defendant Donelan should be dismissed. They highlight Rumsfeld v. Padilla, 542 U.S. 426 (2004), to contend the immediate custodian of a petitioner is the only person who can be named as a defendant in a habeas action. This argument is unavailing in this case. First, each Sheriff-Defendant is properly named since Plaintiff seeks, and the court has not yet decided the propriety of, class resolution. Second, every other Defendant is potentially required to effectuate the remedies requested. See Vasquez v. Reno, 233 F.3d 688 (1st Cir. 2000).
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that such a limit does exist. Bourguignon, 667 F. Supp. 2d at 182.
Defendants believe Bourguignon was wrongly decided and should be reconsidered. Their argument is anchored on a broad reading of Demore v. Kim, 538 U.S. 510 (2003), where the Supreme Court upheld the constitutionality of § 1226(c). Far from supporting reconsideration of Bourguignon’s holding, Demore supports this court’s ruling. Only a brief discussion is required to make this clear.
As discussed in Bourguignon, the two Supreme Court cases touching upon this issue, Zadvydas v. Davis, 533 U.S. 678 (2001), and Demore, suggest a “reasonableness” limit in § 1226(c). In Zadvydas, the Supreme Court held that postremoval detention without a bond hearing was permissible so long as removal was “reasonably foreseeable.” Zadvydas, 533 U.S. at 699. In that context, detention for less than six months was considered presumptively valid. Id. However, after six-months, if an individual “provides good reason to believe that there is no significant likelihood of removal,” the detention is presumptively invalid and a bond hearing is required. Id. at 701.
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Two years later, the Supreme Court directly addressed the constitutionality of § 1226(c) in Demore. There, Chief Justice Rehnquist distinguished Zadvydas and upheld the constitutionality of § 1226(c) for the “brief period necessary for [the detainee’s] removal proceedings.” Demore, 538 U.S. at 513.
Picking up on that language, Justice Kennedy, in his concurrence, explicitly identified a “reasonableness” requirement that limited the scope of 1226(c). He said, “[A] lawful permanent resident . . . could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J., concurring) (citing Zadvydas, 533 U.S. at 684-86).
Taken together, these two cases support the conclusion that a “reasonableness” requirement is included in the statute. Bourguignon, 667 F. Supp. 2d. Such an interpretation is necessary to avoid the Fifth Amendment due process problem that prolonged detention, absent an
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individualized hearing, would present.5 No subsequent controlling authority alters this analysis.
Indeed, strong authority supports this interpretation. At least two other circuits have considered this issue and have both found a “reasonableness” limitation in the statute. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011). Moreover, since Bourguignon, a majority of judges in this district have reached the same conclusion. See Ortega v. Hodgson, No. 11-cv-10358-MBB, 2011 WL 4103138 (D. Mass. Sept. 13, 2011)(Bowler, Mag. J.); Flores-Powell v. Chadbourne, 677 F. Supp 2d 455 (D. Mass. 2010)(Wolf, J.); Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass. 2009) (Gertner, J.); see also Zaoui v. Horgan, No. 13-11254-DPW, 2013 WL 5615913, at *4 (D. Mass. Aug. 23, 2013)(Woodlock, J.)(finding against the petitioner, but recognizing the “reasonableness” requirement in § 1226(c)).
5 Plaintiff also believes that the detention implicates the Eighth Amendment. Given the strength of the due process argument, analysis under the Eighth Amendment is unnecessary.
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No sound reason justifies departure from Bourguignon’s analysis. To comply with the constitution’s due process requirement, § 1226(c) must be read to include a “reasonableness” limit on the length of time an individual can be detained without an individualized bond hearing. B. Defining “Reasonableness”
The thornier aspect of this case lies in the definition of “reasonableness.” Two approaches have emerged. One view, adopted by the Third and Sixth Circuits, requires a “fact-dependent inquiry requiring an assessment of all of the circumstances of any given case,” to determine whether detention without an individualized hearing is unreasonable. Diop, 656 F.3d at 234 (3d Cir. 2011); see also Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003). This approach requires each detainee to file a habeas petition challenging his or her detention. If a federal court believes the detention crosses the reasonableness threshold, then the individual is subsequently entitled to a bond hearing.
The other approach, one employed by the Ninth Circuit, applies a bright-line rule. Under that view, the government’s “statutory mandatory detention authority under
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Section 1226(c) . . . [is] limited to a six-month period, subject to a finding of flight risk or dangerousness.” Rodriguez, 715 F.3d at 1133 (9th Cir. 2013). The Ninth Circuit justified its view by applying one of its prior cases, Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), to § 1226(c). In Diouf, the court analyzed the due process considerations arising from an immigration detention lasting over six-months. Consistent with Zadvydas, it concluded that such detention, absent an individual hearing, violated the constitution.
The First Circuit has not yet weighed in on this question, but the simpler approach adopted by the Ninth Circuit strikes this court as fairest to both sides. This rule follows in line with Supreme Court precedent, satisfies due process, and avoids the unnecessary administrative burden of holding two, repetitive hearings -- a habeas proceeding to determine if a bond hearing is required and then the bond hearing itself. This is the approach this court will take unless and until it is instructed otherwise. Significantly, however, the court would grant the petition here even using the more complex rule adopted by the Third
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and Sixth Circuits. 1. Six-Month Rule This rule is optimal for a number of reasons. First,
this bright-line rule is consistent with Supreme Court precedent. In Zadvydas, after determining that indefinite, post-removal detention was impermissible, the Court said, “[W]e think it practically necessary to recognize some presumptively reasonable period of detention.” Zadvydas, 533 U.S. at 700-01. Such pragmatism was justified by prior Supreme Court cases. Id. at 701, citing Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-58 (1991)(applying a 48-hour rule to probable cause determinations); Cheff v. Schanckenberg, 384 U.S. 373, 379-80 (1966)(plurality opinion)(adopting a rule that the right to a jury trial extends to all cases in which a sentence greater than six months is imposed). Although the six-month line did not guarantee the detainee’s release in Zadvydas, of course, it did entitle the detained individual to a bond hearing. A closely analogous situation is present in this case.
The Seventh Circuit’s dicta in a comparable case is noteworthy. As Judge Posner said, “[I]t would be a
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considerable paradox to confer a constitutional or quasiconstitutional right to release on an alien ordered removed (Zadvydas) but not on one who might have a good defense to removal.” Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir. 2007). The Ninth Circuit’s conclusion in Rodriguez applies that logic to § 1226(c). Indeed, no persuasive argument justifies discarding this pragmatic approach when dealing with individuals detained under § 1226(c).
The fact that Demore did not adopt a six-month rule does not undermine this logic. Defendants argue that the Demore Court could have utilized this approach. In failing to do so, they contend, the Court made a deliberate choice.
However, the Demore Court had no reason to invoke this rule. Demore explicitly noted that detention under § 1226(c) is inherently “of a much shorter duration,” lasting “roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” Demore, 538 U.S. at 529-31. Since the Court was facing a direct constitutional challenge to § 1226(c) and was operating under those temporal assumptions, it simply avoided
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answering an unripe question.6 Justice Kennedy’s
concurrence, which was the fifth vote to comprise the
majority, clearly implies as much. In utilizing Zadyvdas to
opine on a reasonableness requirement in § 1226(c), Justice
Kennedy seems to suggest that the temporal discussion in
that case is still the most applicable law on this issue.
Id. at 532 (Kennedy, J., concurring)(citing Zadvydas
affirmatively).
Due process considerations also favor the six-month
approach. As the Ninth Circuit said in Diouf,
When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before an immigration judge at this stage of the proceedings is therefore a reasonable one.
Diouf, 634 F.3d at 1091-92.
These considerations, as the Ninth Circuit later found
in Rodriguez, are equally applicable to the § 1226(c)
6 Although the plaintiff’s detention in that case was for roughly six-months, the court noted that the length was largely due to plaintiff’s own tactics. It thus anchored its broad decision on the average length of detainment.
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analysis. After six months, a detainee’s private interest in freedom from unreasonable restraint is high. The risk of unnecessary detention, unless it is found to be justified by safety concerns or flight risk, is also substantial.
Significantly, the burden on the government to hold such a bond hearing is minimal. Indeed, adopting a sixmonth approach actually eases the burden on the government. This approach only requires the executive to hold one hearing, rather than defend against an individual habeas petition first.
Broader due process concerns also militate against the individualized approach adopted by the Third and Sixth Circuits. Although that approach may work for those individuals with access to the federal courts, only a minority of detainees have this capacity. The individualized approach presumes that detainees have knowledge about the American court system and have finances to obtain an attorney (or are fortunate enough to receive pro bono assistance) and that they have the language skills required to navigate the legal thicket. Simply put, “litigation is unlikely to be a viable solution for most
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immigrants in prolonged detention . . . [because] it is
logistically difficult to bring a habeas petition.”
Geoffrey Heeren, Pulling Teeth: The State of Mandatory
Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 603
(2010). The six-month approach protects the due process
rights of all detainees whose confinement has become “presumptively unreasonable.”7
Finally, administrative concerns favor this rule.
Defendants suggest that factual differences between cases
justify the Third and Sixth Circuit’s approach. However,
this argument conflates the right to a bond hearing with the
outcome of said hearing -- the possible right to release.
In a bond hearing, an IJ is necessarily going to consider
the reasonableness of the alien’s continued detention. For
example, an IJ may properly decline to grant bail to a
detainee whose stalling tactics were the sole cause of the
length of confinement. It makes more sense to have one
7 This factor is particularly persuasive since the government has continued to employ its interpretation of § 1226(c) as new cases arise, despite consistent court orders to do otherwise. Absent an approach that deals with this issue globally, Defendants will likely continue to apply their incorrect interpretation of the statute in violation of the Fifth Amendment.
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hearing in front of an IJ, rather than require each detainee to file a habeas petition first so that the detainee can obtain a hearing on whether he or she is entitled to a hearing. This six-month rule effectively protects both a detainee’s due process rights and Defendants’ resources.
Under the six-month approach, the analysis in this case is simple: Plaintiff has been held in custody for fourteen months, and thus his continued detention without a bond hearing is presumptively unreasonable.
2. Case-by-Case Determination Even if the individualized approach were more appropriate, Plaintiff’s prolonged detention without a bond hearing is unreasonable. Relevant factors in this determination include: the length of detention; the period of detention compared to the criminal sentence; the foreseeability of removal; the prompt action of immigration authorities; and whether the petitioner engaged in any dilatory tactics. Zaoui, 2013 WL 5615913, at *4 citing Flores-Powell, 677 F. Supp. 2d at 471. The length of Plaintiff’s criminal sentence compared to his detention is the only factor that cuts against his
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claim. That element, however, is substantially outweighed by the length of Plaintiff’s confinement and the uncertainty underlying his immigration case.
First, Plaintiff has been detained for fourteen months. This is well beyond the brief detainment contemplated in Demore. Demore, 538 U.S. at 529. In Demore, the Court assumed that detention would last an average of thirty days up to a maximum of five months.
Moreover, this court has already ruled that a sevenmonth detainment, half the length of the confinement here, would be unreasonable. Bourguignon, 667 F. Supp. 2d at 183. In dealing with the defendants’ arguments in that case, this court said, “[E]ven if the court made its calculations conservatively. . . the more than seven-month detention period still exceeds the brief time frame contemplated by Chief Justice Rehnquist in Demore.” Id.
It is significant, as well, that Plaintiff’s removal is not foreseeable. In Bourguignon, there was no end in sight for the petitioner’s case before the BIA, since it was unclear when the BIA would rule and subsequently, whether the petitioner would appeal. Id. Here, Plaintiff is even
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further away from a final outcome. Nearly half a year after the IJ’s initial decision, the BIA reversed and remanded Plaintiff’s case. Then, on December 17, 2013, the IJ again ruled against Plaintiff. Plaintiff now intends to bring his case back to the BIA. At best, he will receive another favorable decision and obtain the remedy he seeks. At worst, the BIA, at some indeterminate point in the future, will rule against Plaintiff. In that latter scenario, he will have the right to appeal his case to the Second Circuit Court of Appeals. It is impossible to determine exactly when that litigation will conclude, but the date is certainly far enough out to implicate due process concerns.
The other relevant factors do not weigh one way or the other. Although the government has not dragged its feet, Plaintiff has also not engaged in dilatory tactics. Like the petitioner in Bourguignon, Plaintiff has raised a colorable claim against deportation and is vigorously contesting removal. Defendants’ contentions notwithstanding, Plaintiff should not be penalized simply because he is invoking his rights.
Ultimately, § 1226(c) includes a “reasonableness” -19-

threshold. Regardless of how that limit is defined, Plaintiff’s detention has crossed the line. While Plaintiff may not obtain the relief he seeks, he is at least entitled to take a shot at persuading the IJ to release him.
IV. CONCLUSION For the foregoing reasons, Plaintiff’s Petition for Habeas Corpus (Dkt. No. 4) is hereby ALLOWED, and Plaintiff’s Motion for Order to Show Cause (Dkt. No. 5) is hereby DENIED as moot. Having allowed the Petition for Habeas Corpus, the court orders as follows: 1. Petitioner will receive a bond hearing by February 7, 2014, before an Immigration Judge, at which the judge will consider whether conditions may be placed upon Petitioner’s release that will reasonably ensure that he will pose no danger to the community and will not pose a risk of flight. If such conditions are found to exist, Petitioner will be released from custody. 2. Counsel for Respondents will report to this court on or before February 14, 2014, regarding compliance with
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this order. This report will include notification as to the outcome of the bond hearing.
3. Failure of an Immigration Judge to conduct the bond hearing as ordered will entitle Petitioner to request a bond hearing before this court.
It is So Ordered. /s/ Michael A. Ponsor
MICHAEL A. PONSOR U. S. District Judge
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 </s> Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARK ANTHONY REID, on behalf of himself and others similarly situated,
Plaintiff/Petitioner
v.
CHRISTOPHER DONELAN, Sheriff of Franklin County, et al.
Defendants/Respondents

) ) ) ) ) ) ) C.A. NO. 13-cv-30125-MAP ) ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
(Dkt. No. 33) February 10, 2014 PONSOR, U.S.D.J.
I. INTRODUCTION Plaintiff, a lawful permanent resident, has been held in immigration detention pursuant to 8 U.S.C. § 1226(c) without an opportunity for release on bail. He has brought a motion seeking to certify a class of all individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to § 1226(c) for over six months and are not provided an individualized bond hearing. (Dkt. No.

Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 2 of 26
33.) Defendants, a number of state and federal government agents, oppose the motion. Because the four requirements of Fed. R. Civ. P. 23(a) are satisfied, and because the proposed class falls squarely into Rule 23(b)(2), the court will allow Plaintiff’s motion.
II. BACKGROUND The detailed facts underlying this litigation are well documented in the court’s recent Memorandum and Order Regarding Plaintiff’s Petition for Habeas Corpus and Plaintiff’s Motion for Order to Show Cause. Reid v. Donelan, –-F. Supp. 2d--, 2014 WL 105026 (D. Mass. Jan. 9, 2014). To briefly summarize, in November 2012, the state of Connecticut released Plaintiff from criminal custody, and Immigrations and Customs Enforcement (ICE) immediately detained him. The government invoked § 1226(c), a statute that permits the detention of certain aliens without an opportunity for release on bail, to justify Plaintiff’s fourteen-month detention. Plaintiff brought this case, relying on Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009), to argue
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 3 of 26
that Defendants may only detain an individual without an individualized bond hearing for a “reasonable” period of time. Once that threshold is crossed, the government must provide the detainee with an opportunity to argue for his or her release. This opportunity, of course, will not make actual release inevitable, or even necessarily likely.
On August 15, 2013, Plaintiff filed the pending Motion for Class Certification. Counsel argued the class issue in tandem with Plaintiff’s habeas petition on December 12, 2013, and the court took both matters under advisement.
On January 9, 2014, the court granted Plaintiff’s individual Petition for Habeas Corpus. (Dkt. No. 80.)1 Relying on the Supreme Court’s decisions in Zadvydas v. Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510 (2003), the Ninth Circuit’s opinion in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), and its prior decision in Bourguignon, the court concluded that a “reasonableness” limit does exist in the statute. Furthermore, it determined that six months is the ceiling for detention absent
1 Plaintiff’s bond hearing, pursuant to the order, occurred on February 3, 2014. (Dkt. No. 91.) The Immigration Judge granted Plaintiff’s request for bond and set a number of conditions of release.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 4 of 26
individualized consideration, since any holding beyond that
time would be “presumptively unreasonable.”
The court is now tasked with determining whether class
treatment is appropriate.
III. DISCUSSION
In order to sustain a suit under Fed. R. Civ. P. 23,
Plaintiff must satisfy the four requirements of Rule 23(a)
and show that the proposed class falls into a Rule 23(b)
category. Plaintiff’s attorneys also request certification
as class counsel and thus must meet the demands of Rule 23(g).2
A. Rule 23(a)
Plaintiff’s first obstacle, Rule 23(a), is composed of
four elements. The rule requires that: (1) the class is so
numerous that joinder of all members is impracticable; (2)
questions of law or fact common to the class exist; (3) the
2 Plaintiff also believes that the class can be certified as a “representative habeas action” pursuant to U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Since the Rule 23 requirements are satisfied, only limited discussion on this point is required. The keys to the Sero analysis are, in essence, commonality, numerosity, and considerations of judicial economy. The Rule 23 analysis overlaps significantly with Sero, and therefore the reasons justifying class treatment in this decision are equally applicable to that analysis.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 5 of 26
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. Rule 23(a). Plaintiff bears the burden of establishing each requirement, In re Eaton Vance Corp. Sec. Litig., 219 F.R.D. 38, 43 (D. Mass. 2003), and the court must engage in a “rigorous analysis” to discern whether that burden is met. Wal-Mart Stores v. Dukes, 131 S.Ct. 2541, 2551 (2011). Each factor will be addressed independently below.
1. Numerosity Initially, class certification must be “so numerous that joinder of all its members is impracticable.” Rule 23(a)(1). Numerosity involves a class-specific inquiry, Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980), and requires more than mere speculation. See Marcus v. BMW of No. Am., LLC, 687 F.3d 583, 596-97 (3d Cir. 2012). Although no specific threshold exists, a class size of forty or more will generally suffice in the First Circuit. See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 173 (D. Mass. 2012). A plaintiff need not provide a precise number, as a
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 6 of 26
court may draw “reasonable inferences from the facts presented to find the requisite numersoity.” McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161, 167 (1st Cir. 1987). Moreover, the threshold may be relaxed when a party seeks only declaratory or injunctive relief, since the inclusion of future members increases the impracticability of joinder. Id.
Here, Plaintiff successfully demonstrates that the proposed class meets the forty-person threshold and, more importantly, that joinder is impracticable. Plaintiff presents data provided by ICE listing the individuals held in Massachusetts for over six months pursuant to § 1226(c). (List of Individuals Detained, Dkt. No. 34, Ex. 3) At any given time in the year provided, January 2011 to January 2012, there were between 39 and 42 members of the proposed class. Although Defendants believe that this estimate is outdated and over-inclusive, two factors suggest that the precise number is actually higher.
First, an influx of future members will continue to populate the class. Despite numerous court decisions ruling against Defendants, see, e.g., Ortega v. Hodgson, No. 11-cv-
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 7 of 26
10358-MBB, 2011 WL 4103138 (D. Mass. Sept. 13, 2011); Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455 (D. Mass. 2010); Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass. 2009), the government has remained steadfast to its dubious interpretation of § 1226(c). This has coincided with the government’s expanded focus on detaining criminal-aliens and prolonged delays in immigration litigation. See Transactional Records Access Clearinghouse (TRAC), Average Time Pending Cases Have Been Waiting in Immigration Courts as of December 2013, Syracuse University (Dec. 2013), http://trac.syr.edu/phptools/immigration/court_backlog/ apprep_backlog_avgdays.php. As a result, increasing numbers of individuals are held pursuant to this statute beyond six months, but are not provided an individualized bond hearing.
The potential inclusion of these currently uncountable, future class members not only increases the number beyond forty, but also illustrates the transient nature of the proposed class. Unforeseen members will join the class at indeterminate points in the future, making joinder impossible. See William B. Rubenstein, Newberg on Class Actions § 3.15 (5th ed. 2013)(noting that the inclusion of
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 8 of 26
future members “may make class certification more, not less, likely”). The estimate of 39 to 42 is merely the floor for this numerosity inquiry when inevitable future members are taken into consideration.
Plaintiff’s estimate is also conservative since the class members in this case, including those currently in detention, are not easily identifiable. Members are located in four facilities across the Commonwealth and are housed among individuals held under a variety of statutory provisions, for distinct periods of time. As the court noted previously, many do not speak English, a majority do not have counsel, and most are unlikely even to know that they are members of the proposed class. See Reid, 2014 WL 105026, at *5. To expect Plaintiff to find every class member across Massachusetts and join each one in this suit is unreasonable under such circumstances.
Thus, since the number of current and future class members is beyond the forty-person threshold, and because joinder is impracticable in this case, the proposed class meets the first Rule 23(a) requirement.
2. Commonality
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 9 of 26
The second element of Rule 23(a) is the existence of a question of law or fact common to the class. Rule 23(a)(2). The key to commonality is that the truth or falsity of a question “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, 131 S.Ct. at 2551. A plaintiff need only establish “a single common question” to satisfy this requirement. Id. at 2256.
Although Plaintiff presents a single question of law that hovers over the entire case -- namely, whether § 1226(c) requires a bond hearing after an unreasonable period of detention -- Defendants argue that commonality is lacking for two reasons. First, § 1226(c) permits detention for a variety of legal and factual reasons. Members of the proposed class have committed significantly different crimes, ranging from those involving moral turpitude to acts of terrorism. Moreover, the dispositions of the potential class members’ criminal cases may vary: some may be convicted of the crime charged, while others may be subject to detention absent any conviction. This variety, in Defendants’ view, undermines any finding of commonality.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 10 of 26
Second, Defendants say, even if a reasonableness requirement is embedded in the statute, it necessarily requires a fact-specific inquiry as to whether an individual’s detention is “unreasonable.” See Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003). The question of whether a reasonableness limit exists is only part of the analysis and, therefore, fails to resolve the claims of the entire class.
These arguments cannot withstand scrutiny. The distinctions Defendants highlight, particularly the varied criminal histories across the class, are irrelevant to the court’s ruling on the issue of class certification. The question raised by this litigation is not whether any individual detainee is entitled to release on bail –- a question that is certainly impacted by the factual differences asserted. Instead, the sole question here is whether an individual detainee has a due process right to argue for such release. That question is one purely of law, resolvable irrespective of the distinctions identified by Defendants.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 11 of 26
Defendants’ second contention, though ultimately
flawed, strikes at the heart of the commonality analysis:
does the inclusion of a “reasonableness” limit in § 1226(c)
ensure class-wide relief, or does a remedy hinge on
individual considerations? Given the prior order on
Plaintiff’s individual habeas petition, which addressed that
very question, it would be artificial for the court to
approach this inquiry as though it were writing on a clean
slate. Indeed, the Supreme Court has opined on the
permissibility of courts’ examining the merits of a case, if
necessary, at this stage of the analysis. As the Court
said,
Repeatedly, we have emphasized that it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Such an analysis will frequently entail overlap with the merits of the plaintiff’s underlying claims. That is so because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.
Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013)
(internal citations and quotations omitted).
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 12 of 26
In analyzing Plaintiff’s individual petition, this court deemed the Ninth Circuit’s six-month approach as most compatible with Supreme Court precedent, due process considerations, and administrative constraints. Reid, 2014 WL 105026, at *4-6. Thus, in interpreting § 1226(c), the court not only found a reasonableness limit in the statute, but determined that the limit resided at the six-month date. Id. Since that interpretation, if applied to the entire class, resolves the claim of every member, the commonality metric is certainly met.
Even if the commonality query presented itself in a vacuum, one where the individual habeas petition was still pending, the court need only re-frame the question to illustrate the clarity of commonality. As the Ninth Circuit said, the question is simply: “May an individual be detained for over six months without a bond hearing under a statute that does not explicitly authorize detention for longer than that time without generating serious constitutional concerns?” Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th Cir. 2009). Accordingly, were the court to answer affirmatively and, therefore, agree with Defendants that
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 13 of 26
individual determinations were required, that answer would still resolve the entire case. That is, even if Defendants offered the correct interpretation of the statute, they would still be providing an answer to a common question of law.
Therefore, since the answer to a single, legal question disposes of the claims of the entire class, Plaintiff satisfies the commonality metric.
3. Typicality The third requirement under Rule 23(a) is that the claims of the class representative must be typical of the other class members. Rule 23(a)(3). “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)(citations and internal quotation marks omitted). Although the analysis of commonality and typicality “tend to merge,” id. at 157 n.13, they are different concepts warranting distinct examinations. See Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 293 (D. Mass. 2011). “[C]ommonality evaluates the sufficiency of the class itself
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 14 of 26
while typicality evaluates the sufficiency of the named plaintiff.” Id. (internal quotations omitted), quoting Hassine v. Jeffes, 846 F.2d 169, 177 n.4 (3d Cir. 1988).
Defendants, recognizing this overlap, simply apply their commonality discussion to the typicality analysis. For the same reasons those arguments were rejected before, they are unavailing in this context. Simply put, no possibility exists that an individual claim or factual difference will “consume the merits” of this class action. Durmic v. J.P. Morgan Chase Bank, 10-cv-10380-RGS, 2010 WL 5141359, at *4 (D. Mass. Dec. 10, 2010).
Plaintiff presents the same, single question of law as his fellow class members. He seeks the same remedy –- an individualized bond hearing -- as everyone else. No serious objection to typicality can be offered under these circumstances.
4. Adequacy The final Rule 23(a) requirement is that the class representative must be one who will “fairly and adequately protect the interests of the class.” Rule 23(a)(4). This requires the party to show “first that the interests of the
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 15 of 26
representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced, and able to vigorously conduct the proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985).
Defendants provide two arguments to attack Plaintiff’s status as an adequate representative. First, the list of potential class members presented by Plaintiff includes detainees with final orders of removal. Such aliens, Defendants posit, are clearly distinct.
Second, the legal and factual differences, discussed previously, will require each party to present his or her claim differently. Each individual litigant will need to make different strategic decisions respecting his or her case. Given this individualized need, any class member would be an unsuitable representative for any other.
Defendants’ first concern is easily assuaged. The class requested, and being certified, only includes those individuals held under § 1226(c) beyond the six-month mark.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 16 of 26
Any individual held under a different statute is simply not, for the time being at least, part of this class.3
Defendants’ second contention suffers from the same flaws as their commonality and typicality arguments. The differences they allege speak to the outcome of the bond hearing -- release on bail -- and not whether a bond hearing is required in the first place. Factual differences may indeed yield different outcomes at individual bond determinations. But, in this case, every member is seeking the same remedy -- the hearing itself, whatever its outcome -- based on an identical theory. Plaintiff’s interests are coextensive with the class, and he is therefore an adequate class representative.
The fact that the court decided Plaintiff’s habeas petition before the class certification motion does not pose a problem in the adequacy analysis. First, the “inherently transitory” exception to the mootness doctrine was designed for precisely this situation. In Gerstein v. Pugh, 420 U.S.
3 Plaintiff does point out that an individual may be held under one statute but, due to the nature of his or her immigration litigation, later held under § 1226(c). At the point such individuals have been held under § 1226(c) for six months, they will become members of the class.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 17 of 26
103 (1975), the Supreme Court held that the decision regarding a named representative’s pretrial detention before the decision on the class certification motion did not moot the entire case. Id., at 110 n.11. Instead, the court said, “[I]t is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify a class.” Id.
Here, it is not clear how long any given individual will be held and, therefore, whether anyone would be subject to detention long enough for the court to certify a class. This is particularly true since any potential class representative would have the right to seek immediate relief through an individual habeas petition.
Moreover, Plaintiff retains a continuing interest in this case. In filing an individual motion and a motion for class certification, Plaintiff brings two separate claims: a claim that he is entitled to relief and a claim that he is entitled to represent a class. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400 (1980)(finding that a class representative can appeal the denial of class certification, despite the fact that his individual petition became moot).
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 18 of 26
Although the First Circuit has not determined whether this applies when an individual’s claim becomes moot before a class is certified, the Third Circuit has allowed a plaintiff to continue as a class representative in such a context. Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir. 1987). It would be anomalous to remove a plaintiff from a case where he files both motions within the same period of time, simply because the court moves expeditiously to provide individual relief.4
Plaintiff has also more than met his burden to demonstrate the adequacy of class counsel. Plaintiff’s counsel -- supervising attorneys and law student interns of the Jerome N. Frank Legal Services Organization at Yale Law School -- have experience in immigration and constitutional law, civil rights litigation, and habeas corpus actions. In fact, they have previously litigated similar § 1226(c) challenges in the federal courts. See, e.g., Bourguignon, 667 F. Supp. 2d 175; Hyppolite v. Enzer, 2007 WL 1794096 (D. Conn. June 19, 2007). Counsel also has experience managing
4 Although Plaintiff remains an adequate representative of the class, the court will consider a motion to amend the complaint to include additional class representatives.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 19 of 26
class actions. See Brizuela v. Feliciano, No. 3:13-cv-226JBA (D. Conn. filed Feb. 13, 2012); Shepherd v. McHugh, No. 3:11-cv-641-AWT (D. Conn. filed Dec. 3, 2012). The adequacy of counsel is made even clearer when examining the Rule 23(g) requirements below.
Rule 23(a) is the essence of a class certification analysis. In satisfying the four requirements of Rule 23(a), Plaintiff has successfully cleared the first and most important hurdle. B. Rule 23(b)
In addition to meeting the four requirements of Rule 23(a), Plaintiff must show that the proposed class falls into one of the three defined categories of Rule 23(b). The most applicable here is Rule 23(b)(2), which requires a showing that “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 with respect to the class as a whole.”
Defendants again assert that individual differences among the potential class members preclude their eligibility under this rule. The government, in its view, does not treat all § 1226(c) detainees alike. Instead, it makes
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 20 of 26
different determinations related to detention based on individual factors. Notably, the government does not specify how it considers individual characteristics nor, crucially, does it contend that it provides bond hearings to any § 1226(c) detainees regardless of these characteristics.
Defendants also believe that 8 U.S.C. § 1252(f)(1) bars this court from granting class-wide injunctive or declaratory relief, thus making certification under Rule 23(b)(2) inappropriate. That statute provides that no court “shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1231] . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1).
Despite Defendants’ arguments, the proposed class fits neatly into Rule 23(b)(2). First, Defendants have acted, or refused to act, on grounds generally applicable to all members of the class. In fact, civil rights actions like this one, where a party charges that another has engaged in unlawful behavior towards a defined group, are “prime
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 21 of 26
examples” of Rule 23(b)(2) classes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
Here, it is undisputed that Defendants refuse to provide any of the class members with an individualized bond hearing. Despite alleged differences, members of the class have all been treated identically with respect to the opportunity to argue for release on bail. Defendants have thus consistently and, in the court’s view, incorrectly applied § 1226(c) to the entire class.
Second, Plaintiff seeks a single injunction or a single declaratory judgment -- specifically, an order that § 1226(c) must be read as providing an individualized bond hearing after six months of detention. He does not request any damages that have the potential to muddy the analysis. As the Supreme Court has recently made clear,
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 22 of 26
Wal-Mart, 131 S.Ct. at 2557. Critically, the entire class seeks the same remedy, placing it firmly in the Rule 23(b)(2) category.
Defendants’ final argument respecting § 1252(f)(1) is also fruitless. At a minimum, class-wide declaratory relief is available.5 Equitable relief may only be restricted by “clear and valid legislative command,” or “by a necessary and inescapable inference.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). Since injunctive and declaratory relief are distinct, see Steffel v. Thompson, 415 U.S. 452, 471 (1974), the statute, by its own terms, does not proscribe a class-wide declaratory remedy.
This conclusion is augmented by the First Circuit’s interpretation of § 1252(f)(1). In Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), the court probed the language of the clause and gave meaning to both operative terms. Specifically, it found that “restrain” meant something different from “enjoin” –- the former referring to a
5 The court is confident, at this stage of the litigation, to say that class-wide declaratory relief is permissible. However, since that question also speaks to whether Plaintiff can obtain a class-wide remedy, this conclusion is subject to reconsideration at a later phase of the proceedings.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 23 of 26
temporary injunction and the latter indicating a permanent injunction. Id. at 1013. In doing so, the First Circuit defined each key term in § 1252(f)(1), yet did not construe either as “declaratory relief.”
Finally, persuasive authority recognizing the utility of class treatment in this circumstance further justifies the court’s conclusion. See Hayes, 591 F.3d at 1119; Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011). As the Third Circuit said, “[A]llowing class-wide declaratory relief would facilitate the Supreme Court review that Congress apparently intended.” Alli, 650 F.3d at 1016 (internal quotation marks omitted). As a result, the class can, at a minimum, seek declaratory relief, and therefore certification as a Rule 23(b)(2) class is appropriate.6
Plaintiff has successfully shown that the class falls squarely into Rule 23(b)(2) and that class treatment is appropriate. C. Rule 23(g)
6 Whether the class can obtain injunctive, rather than simply declarative, relief may require a more searching analysis at some point in the future. However, since some type of class relief is clearly available, that thornier question need not be addressed at the current juncture.
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 24 of 26
The final consideration is whether class counsel can be certified under Rule 23(g). Here, four factors are relevant:
(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. Rule 23(g)(1)(A). Counsel must also “fairly and adequately represent the interests of the class.” Rule 23(g)(4) Plaintiff’s counsel easily meet these requirements. Class counsel have done considerable work identifying and investigating the potential claims in this action. Furthermore, co-counsel Muneer Ahmad and Michael Wishnie have litigated representative habeas actions before, and they have experience in Rule 23 class actions. See Shepherd v. McHugh, No. 3:11-cv-641-AWT (D. Conn. filed Dec. 3, 2012); Brizuela v. Feliciano, No. 3:13-cv-226-JBA (D. Conn. filed Feb. 13, 2012). Counsel have also done extensive work litigating complex federal civil rights and immigrant rights cases. See Doe v. United States, No. 13-cv-2802 (S.D.N.Y. filed Apr. 26, 2013); Barrera v. Boughton, No. 3:07-cv-1436-
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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 25 of 26

RNC, 2010 WL 1240904 (D. Conn. Mar. 19, 2010); Diaz-Bernal

v. Meyers, 758 F. Supp. 2d 106 (D. Conn. 2010); Families for

Freedom v. Napolitano, 628 F. Supp. 2d 535 (S.D.N.Y. 2009);

El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249

(D. Conn. 2008). Finally, counsel have already devoted

significant resources to this case, and no evidence suggests

that their level of commitment will diminish. No cogent

argument can be made that Plaintiff’s counsel do not satisfy

the relevant requirements or, as discussed previously, that

counsel cannot adequately represent the interests of the

class.

Ultimately, Plaintiff has shown that this is precisely

the type of case that should move forward as a class action.

As a result, class certification is appropriate.

IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Class

Certification under Fed. R. Civ. P. 23 (Dkt. No. 33) is

hereby ALLOWED.

The court certifies the following class: “All

individuals who are or will be detained within the

Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c)

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Case 3:13-cv-30125-MAP Document 92 Filed 02/10/14 Page 26 of 26
for over six months and have not been afforded an individualized bond hearing.” Plaintiff Reid is appointed class representative, and Nicole Hallet, Muneer Ahmad, Michael J. Wishnie, and the Law Student Interns of the Jerome N. Frank Legal Services Organization at Yale Law School are appointed class counsel pursuant to Fed. R. Civ. P. 23(g).
The parties shall submit a joint proposal setting forth a briefing schedule for the filing of dispositive motions no later than February 25, 2014.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
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 </s> Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 1 of 11
EXHIBIT A
(

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 2 of 11

I:

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT HARTFORD, CONNECTICUT

In the Matter of:
MARK REID, Respondent
In removal proceedings

)
)L,.
) File No.: A 035 973 579 ) ) ) January 26, 2013 )

DECLARATION OF MARK REID IN SUPPORT OF IDS APPLICATION FOR RELIEF UNDER THE CONVENTION AGAINST TORTURE AND
TERMINATION OF PROCEEDINGS

I, MARK REID, upon my personal knowledge, and in accordance with 28 U.S.C. § 1746,

declare as follows:

is- 1. My name is Mark Anthony Reid.

· 2. My date of birth

1964. I was born in Kingston, Jamaica, but I have been living

in the United States for the past 34 years.

3. I am afraid ofbeing deported to Jama11ca~

forced to go back there. I know people in Jamaica

f.

I,
' 'I I
4. My mother's name is Beverly Pryce. She is a naturalized citizen of the United States, and she lives in Hollywood, Florida, where she works as a nurse.

5. My father's name is Reginald Reid. I do not know where he lives or ifhe is still alive. I believe he moved to the United Statesand became a citizen, but I am not sure.

6. I have a sister, Jaime Pryce, who lives in Hollywood, Florida with my mother. She is a United States citizen. My mother adopted her in 1988 or 1989. She is now 24 years old.

7. I also have many cousins and other relatives who live in the United States and are U.S. citizens.

8. My mother and sister are observant Seventh Day Adventists. The rest of my family is also Seventh Day Adventists.

j
1

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 3 of 11

CHILDHOOD IN JAMAICA
9. My mother emigrated from Jamaica to the United States for work when I was very young. I believe I was less than two years old when she left- I have no memory of being with my mother prior to her bringing me to the United States when I was 14 years old.
10. I knew my father growing up, but we lost touch 15 or 20 years ago. He did not live with me when I was growing up.
11. After my mother left Jamaica, I lived with my grandmother, who I called "mama," and with my maternal cousins and other relatives in Kingston, Jamaica.
12. When I was eight or nine we moved to Spanish Town, Jamaica. My uncles and grandmother had a property there where they planned to build a house. At first we lived in a hut on the property while they started to build the house. Spanish Towrrwas very poor and we did not have electricity or running water when I first moved there. Many kids would walk to school barefoot and bathe in tlle river. I attended the local school, Tredegar Park.
13. There was no police station where we lived. You would have to cross the river to get to the police station. People in the town would take justice into their own hands. I remember a group of people once waited with machetes for a robber who had been stealing from a Store in the neighborhood. When he arrived, they chopped off his hand. They hacked him up badly. When the police arrived, th~y loaded the dead man's body into a bag and told the people who had lQll~~him "good job."

15.

-- ------- -

-

I

•

•'

~--~

-
•

<

-

<

16. When I was still a young boy, my mother sent me a plastic duck as a gift from the United

States. I treasured it. I was very upset that this was all I had from her, and

to that

toy. My grandmother kept it for me so it wouldn't get lost or ruined.

17.

2

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 4 of 11

18. At first I didn't tell anyone a b o u t - because I was scared and did not

After a

I told my grandmother,

19. I felt helpless, like I had no voice and nobody could hear me. I felt like I was muzzled. 20.

22. This harassment became violent. I was beaten many times by the other children and lived in constant fear. One time, a group of eight or nine children in the neighborhood cut me a:nd tried to drown me in the Rio Cobre river because......__ a several inch long scar. I could not go to school for~

23. Another time, children chased and hit me with the large batteries that people in the

neighborhood kept for big flashlights. I was constantly, afraid of being attacked so I

would race home from school.

·

. 24. The teasing made me feel worthless. Sometimes the teasing hurt me even more than the physical harassment. I had been a champion athlete at school, a track star, and they took all that away.

25.

woJ,lld spend a lot of time in my uncle Melford's

room.

foot that would get infested with maggots and

smelled really bad. He was often bed-ridden. Everyone else would avoid him, so I would

go to his room to be safe.

26. My father was a police officer in Jamaica. He told my grandmother that if I ever got into any trouble he would kill me himself.
27. I felt abandoned because no one was protecting me and i' couldn't s t o p -or the
attacks.

28. Eventually, my mother brought me to the United States to live with her in New Jersey. I was 14 years old at the time.

CIDLDHOOD IN THE UNITED STATES

29. In 1978, when I was fourteen years old, I entered the United States as a Lawful Permanent Resident. I have lived in the United States ever since. I first lived with my

3

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 5 of 11

mother and stepfather inRoselle, New Jersey. They later divorced and my mother and I moved to Plainfield, New Jersey.

30. My teenage and early adult years are a jumbled period in my memory. My mother was moving a lot and I switched schools almost every semester. I have trouble remembering dates during this period.

31. Shortly after I arrived in New Jersey, my uncle Melford died. My mother and I went back to Jamaica for a couple of days to go to his funeral.

32. I began high school in New Jersey, and had some difficulties in school. After I came to

live with mother in the United

increasingly angry with her. I blamed

her

This anger hurt my

33. I did not have many friends in high school. I was scared ofmy peers because of my experiences in Jamaica. It was hard for me to trust my claSsmates in high school. Also, I still had a Jamaican accent and other students picked on me for it. My anger and distrust
contributed to several fights while i was in high school. These incidents made my
relationship with my mother even worse.
34. I was suspended from Plainfield High School after a fight. I ran away to live with my uncle Mark (his legal name is Murvelle, but people called him Mark) in New Haven, Connecticut. I was close to my uncle Mark I believe he knew about

35. By then, my mother had moved to Florida. She didn't understand why I was struggling and yelled at me a lot. Our relationship was very poor.

1 ~My mother came to New Haven to get me and brought me to live with her in St..
Petersburg, Florida.
-;r. ¥ , I enrolled in high school there, but soon dropped out. Later I enrolled in the Tomlinson
Adult Education Center where I got my GED.

'?~Before I got my GED my mother moved to Fort Lauderdale. I did not want to go with
her, and so I stayed in St. Petersburg. Initially, I lived with a family we knew from church. They charged me $75 a week to live there. I ran out of money and ended up living by myselffor about a week in an abandoned house in St. Petersburg.
~In 31 the early 1980s I injured my knee playing pick-up football. I did not go to the hospital right away because I did not have money and thought you could not go to the hospital without insurance. I was living in the abandoned house at the time.

L{CI·

.

$.After a couple of days I went to the hospital. My knee required surgery. I needed help to

recuperate from the surgery, but I had no place ofmy own and nobody to help care for

4

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 6 of 11

i'' .

.

.

$Nobody in the United States was willing help me recover from my surgery. My uncle

George sent me to recover in Jamaica. This was the second and final time I ever went to

Jamaica.

q~·

.

.J"f."I was scared to be back in Jamaica. I was terrified that I would

like I was as a kid. I stayed in my grandmother's house when I first got

in the neighborhood recognized me, and they threw rocks at the house and yelled

I was then sent to my father's house in Kingston.. Even there, I was too

to go outside. I stayed in Jamaica for four or five months until I recovered.

q1·

...a1r.'When I left Jamaica, I moved to New Haven, Connecticut, to work for my uncle Mark in

construction.

-

ADULTHOOD

'{£/~Since receiving my GED, I have had some post-secondary education and training in·

business administration, paralegal skills, and criminalistics, though I did not graduate

from these programs. I earned a certificate in asbestos removal and a loan originator

certificate from Walters and Associates also in New Haven, Connecticut.

<f~ Other than the times I have been incarcerated, I have lived in New Haven almost .

continuously for nearly the past thirty years. I left New Haven briefly in the mid-1990s

to live with my mother in Florida for about two years.
Lf~·

41. In 1984, I joined the United States Army Reserve, and served unti11990, when I was
honorably discharged. I did boot camp at Fort Benning, Georgia, with the US Army,

Sixth Battalion, First Infantry Training Brigade, where I was specially trained in

marksmanship and hand grenades, and received some training as an anti-armor specialist. Following boot camp, I was stationed with the US Army Reserve, Third Battalion/35th

Infantry in Springfield, Massachusetts.

. '14-·

.

.

A1. I decided to enlist when I went with my uncle Mark and cousin Anthony to apply for

citizenship in downtown in New Haven at the post office. A military recruiter standing in

front of the recruiting center across the street struck up a conversation with me and told

me that if I enlisted the military would take care of getting me citizenship,
"'~~ . I joined the military because I wanted to be a part of something. I wanted to be

somebody. I wanted to serve my country. I was willing to die for my country. I took an

oath to defend the Constitution of the United States, similar to the one the President takes when he is sworn into office.

5

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 7 of 11

qf.

.

,)14: Citizenship was an added benefit of enlisting in my mind. The recruiter and I did not talk

about the process in detail, but I was left with the impression that ifi served I would

automatically become a citizen. The topic of citizenship never came up again during my

years in the service. Citizenship was never a topic ofconversation in my home. My

mother had never discussed it with me when I was growing up. I think of myself as an

American.

¢ )15. Because of what the military recruiter promised me, I believed I had become a U.S.
citizen after I was honorably discharged from the Reserves. I also learned about derivative citizenship in the 1990s. My understanding was that anyone who came into the country with their parent before the age of 16 was a citizen. Either through my mother or through my military service, or both, I thought for sure I had become a citizen. I did not realize that I was not a citizen until I was up for parole from my sentence in Connecticut and I learned that I had an ICE detainer, and that I am not a U.S. citizen and can be deported.
·$}~.While I was in the Reserves I worked in construction and at Wendy's. Since leaving the
Reserves, I have worked in construction, in asbestos removal, and as a loan originator. I worked at both Walters & Associates in New Haven, Connecticut and Liberty Mortgage in Milford; Connecticut. More recently, the majority of my income came from the four residential rental properties I owned, managed, and rented in New Haven. I was able to make enough money in asbestos removal to put a down payment on my first property in 1998 or 1999. I made good money as a loan originator and was able to buy more properties. Since being incarcerated I have lost my rental properties to foreclosure.

tj'ZA I have two vllll\.U vll.;

who are both United States

citizens.

! ! ! ! ! . . ~'3·)W( I am very proud of my son- ·was born on

He graduated from .

• Hillhouse High School in New Haven, Connecticut. He recent y graduated from the

University ofMaryland in Baltimore and I understand that he is now planning to enlist in

the United States Navy.

~ .;q My daughter. and I have a.close relationship . She was born on

lives in New Haven, Connecticut with her

went to

~ere she played field hockey. Since I have been

we have not been

~communicate as much as I would like, but I want very much to be involved in her

life again. We had a tight bond when she was little, and I miss her.

~I began using powder cocaine in the 1980s. At the time I began using illegal drugs I was

and was

I was

to come to terms with the Since then, I have

times and

offenses. I have

also been arrested for other crimes including property crlmes, non·gun weapon ·

offenses, and a domestic dispute.

6

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 8 of 11

5(,j.o: Around 2000 or 2001, I was stabbed in the stomach by a relative ofpeople I was renting

to at a house on Howard Avenue, in New Haven. They were horrible tenants and I was in

the process of evicting them. The grandson of one of the main tenanits 1

Heaskedme

next day

came

We got into an argument and he stabbed me in the stomach. I think he

oec:au~)e he was mad about his family getting evicted, and he thought he

5~ I had multiple surgeries as a result of the stabbing. I began using heroin to manage the
pain that I continued to experience. My heroin use led to my most recent incarceration.

~~X,In 2001, I underwent substance abuse treatment at the Apt Foundation in New Haven,

Connecticut. Unfortunately, the pain related to the many surgeries I had as result ofbeing

stabbed in the stomach made it difficult for me to stay clean.

<71·
$While I was most recently in prison, I took a course about how crimes affect their

victims, entitled "thinking for a Change,'' which helped me to see the impact of my

mistakes on others. The class helped me to think about how my choices have affected my

quality of life and other people.

A bO·

.

I do not want to return to the life I was leading before I was incarcerated. I have asked

God for forgiveness for my mistakes. I have also asked him for the strength to rebuild my

life.

·

"-I~ lam working on making connections with others and being honest about my past
mistakes. I want to go back to school and to get back into real estate. I welcome this
opportunity to live a better life. Because of everything I have been through I have become
more sympathetic to others.

am to seize

better example for my daughter.

b~'

.

,$6. I have also benefitted from the support of Reverend Josh Pawelek, a Unitarian

Universalist minister I met while incareerated. He met with me once at Brooklyn CoJrre(~tio,nal and we have written letters and talked on the phone. I was worried that

~·
v .$1'. It was during my time in the service
le?.-1' .
$.Many years passed
~

--

-

. -

-
• •

7

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 9 of 11

-

__ .......___....

.

~-

-~

_~ __ _...~ --

-
----~-
~

Springfield, Massachusetts when I was there for Reserves d u t y . -

. !Ifd In the early 1990s,

{p<64.11avas killed in an altercation with the police in New H~ven in January of 1992. The .
night oer,ore

-------

.

8

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 10 of 11

~·::rt.

- - ---

- - ~--

~

--~

~~-

FEAR OF JAMAICA
10 ',;rf. I have not returned to Jan:1aica since my knee injury. I no longer have relatives or friends
in Jamaica. They have all either passed away or moved to the United States. I don't know anyone there. I have no connection t~ the country, and do not know how to navigate that culture.
in Jamaica as a child and information I have received

~·

.

:15. Facing deportation has brought back painful memories of my childhood in Jamaica. I had

tried not to think about what happened to me so that I could move on and not constantly

feel the pain, sadness, and anger ofthat time of my life. In ICE detention I have been

9

Case 3:13-cv-30125-MAP Document 4-2 Filed 07/01/13 Page 11 of 11

having night terrors about the time headaches that I think are brought on from

I have also been getting anxiety ofthis experience.

-

~-

-

,

- - f

- -I

-

I I

I

that I can heal, and find a way to healthily cope with my past. I never had the

opportunity to speak to a professional about this before. I am now dealing with these

emotions in a responsible way so that I can make better decisions in the future.

I declare under penalty of perjury under the laws ofthe United States of America that the

foregoing is true and correct.
Executed: Plymouth, Massachusetts January 26,2013

~w
Mark Reid

10

Case 3:13-cv-30125-MAP Document 4-3 Filed 07/01/13 Page 1 of 6
EXHIBITB

Case 3:13-cv-30125-MAP Document 4-3 Filed 07/01/13 Page 2 of 6

===============================~====~==========~=====~=====================:

Requested by: A.LITTMAN/NH

Date of Report: 11/16/2012 Page: 1

CT DEPT OF EMERGENCY SERVICES AND PUBLIC PROTECTION STATE POLICE BUREAU OF IDENTIFICATION 1111 COUNTRY CLUB RD
MIDDLETOWN, CT. 06457

SPBI/SID#: CT00464733

{CONVICTED FELON}

Inmate#: 00141754

FBI#: 629366EA7

III Status/Date: M 11/13/2012

Sex: M Race: B

Height: 5 1 8 11

Weight: 240

Hair: BLK

Eyes: BRO

Henry FPC: 031W00013

I28WII014

Place of Birth: JAMAICA,FC

20-Arrest Date: 10/22/2009 Agency: NEW HAVEN

Case#:

09-63695

Disp Date: 07/07/2010

Dkt: N23N-CR09-0098432-S UAR:08235518

Name: REID,MARK A

DOB: 04/07/1964

Addr: 79 NORTON STREET,NEW HAVEN,CT 06511

FV?: ALC?: NAR?: Y

CDL?: CV?: HM?:

Bond: $50000 (TERM) ' Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-SALE ILLGL DRUG(21a-278(b) ) (FEL -U)

1 CT(S)

CONDITIONAL DISCHARGE

12YR JAIL, 5YR TO SERVE, 5YR COND DISCH

Offense Occurrence Date: 10/13/2009 Verdict Date: 07/07/2010

19-Arrest Date: 10/06/2009 Agency: WEST HAVEN

Case#:

08-04272

Disp Date: 07/07/2010

Dkt: A22M-CR09-0071860-S UAR:07713490

Name: REID,MARK A

DOB: 04/07/1964

Addr: 79 NORTON ST,NEW HAVEN,CT 06511

Bond:

$50 (TERM)

Detained at: BPT

FP SUPPORTED?: N

Chrg I-BURGLARY 3

(53a-103

) (FEL -D) {CONSP) 1 CT(S)

lYR JAIL,CONCUR

Offense occurrence Date: 11/29/2008 Verdict Date: 06/02/2010

\

18-Arrest Date: 09/18/2008 Agency: WEST HAVEN · Case#:

08-4507

Disp Date: 07/07/2010 Rearrest Date: 04/28/2009

Dkt: F02B-CR08-0236071-S UAR:08983754

Name: REID,MARK

DOB: 04/07/1964

Addr: 79 NORTHON STREET,NEW HAVEN,CT 06511

Bond:

$500 (PRFS)

FP SUPPORTED?: Y

Chrg 1-FLR TO APPEAR 1(53a-172

) (FEL -D)

1 CT (S)

lYR JAIL,CONCUR

Offense Occurrence Date: 02/06/2009 Verdict Date: 07/07/2010

17-Arrest Date: 04/29/2004 Agency: NEW HAVEN

Case#:

04 23485

Disp Date: 08/25/2004

VOP Date: 07/07/2010

Dkt: N23N-CR04 -002958.9-S UAR: 08206002

Name: REID,MARK

DOB: 04/07/1964

Addr: 43 45 DAYTON ST,2ND FL,NEW HAVEN,CT 06515

FV?: ALC?: NAR?: Y

CDL?: CV?: HM?:

Bond: $500000 (TERM)

Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-POSS NARCOTICS (21a-279(a) ) (FEL -U)

1 CT (S) (ORIG)

SALE HLCGN/NARC(21a-277(a) ) (FEL -U)

1 CT(S) (SUB)

CONDITIONAL DISCHARGE

7YR JAIL, 4YR TO SERVE,CONCUR, 3YR COND DISCH

Offense occurrence Date: 04/29/2004 Verdict Date: 08/25/2004

1-POSS NARCOTICS (21a-279(a) ) (FEL -U) SALE HLCGN/NARC(21a-277(a) ) (FEL -U) PROBATION TERMINATED

1 CT(S) (ORIG) 1 CT (S) (SUB)

==============================~============~==============:======~==========

Case 3:13-cv-30125-MAP Document 4-3 Filed 07/01/13 Page 3 of 6

;~~~~;~~d=b;7=i~~i;;~;;~=============~~~~=~f=~~;~;~7=~~~~~~~~~~==~~;=~===~

CT DEPT OF EMERGENCY SERVICES AND PUBLIC PROTECTION STATE POLICE BUREAU OF IDENTIFICATION 1111 COUNTRY CLUB RD MIDDLETOWN, CT. 06457

SPBI/SID#: CT00464733

{CONVICTED FELON}

Inmate#: 00141754

Offense Occurrence Date: 04/29/2004 Verdict Date: 07/07/2010

16-Arrest Date: 08/13/2003 Agency: NEW HAVEN

Case#:

41392

Disp Date: 08/25/2004

VOP Date: 07/07/2010

Dkt: N23N-CR03-0020231-S UAR:08200248

Name: REID,MARK

DOB: 04/07/1964

Addr: 630 HOWARD AVE,NEW HAVEN,CT 00000

Bond: $49900 (SET)

Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-SALE ILLGL DRUG{21a-278(b) ) (FEL -U) (CONSP) 1 CT(S) (ORIG)

SALE HLCGN/NARC(21a-277(a) ) (FEL -U) (CONSP) 1 CT(S) (SUB)

CONDITIONAL DISCHARGE

7YR JAIL, 4YR TO SERVE,CONCUR, 3YR COND DISCH

Offense Occurrence Date: 08/13/2003 Verdict Date: 08/25/2004

1-SALE ILLGL DRUG(21a-278(b) ) (FEL -U) (CONSP) 1 CT(S) (ORIG) SALE HLCGN/NARC(21a-277(a) ) (FEL -U) (CONSP) 1 CT(S) (SUB) PROBATION TERMINATED Offense Occurrence Date: 08/13/2003 Verdict Date: 07/07/2010

15-Arrest Date: 05/16/2003 Agency: WEST HAVEN

Case#:

03-14890

Disp Date: 05/28/2004 Rearrest Date: 11/20/2003

Dkt: A22M-MV03-0031988-S UAR:01427371

Name: REID,MARK A

DOE: 04/07/1964

Addr: 630 HOWARD AVE,NEW HAVEN,CT 00000

Bond:

$1000 (PRFS)

FP SUPPORTED?: Y

Chrg 1-FLR TO APPEAR 2(53a-173*

) (MISD-A)

1 CT(S)

UNCONDITIONAL DISCHARGE

Offense Occurrence Date: 08/21/2003 Verdict Date: 04/15/2004

14-Arrest Date: 02/22/2002 Agency: WEST HAVEN

Case#:

1544 02

Disp Date: 06/06/2002

VOP Date: 05/28/2004

Dkt: A22M-CR02-0044764-S UAR:01323126

Name: REID,MARK A

DOE: 04/07/1964

Addr: 674 HOWARD AVE,NEW HAVEN,CT 00000

Bond: $25000 (PRFS}

FP SUPPORTED?: Y

Chrg 1-POSS NARCOTICS (21a-279 (a} ) (FEL -U)

1 CT(S)

SYR JAIL, 1YR TO SERVE, 3YR FROB

Offense Occurrence Date: 01/16/2002 Verdict Date: 06/06/2002

2-PROBATION VIOL (53a-32

) (MISD-U)

1 CT(S)

30MO JAIL

Offense occurrence Date: 11/20/2003 Verdict Date: 04/15/2004

1-PROBATION VIOL (53a-32

) (MISD-U)

1 CT(S}

30MO JAIL

Offense Occurrence Date: 11/20/2003 Verdict Date: 04/15/2004

13-Arrest Date: 07/06/1998 Agency: NEW HAVEN

Case#:

Disp Date: 03/29/2000 Rearrest Date: 01/17/2000

27384

============================================================~===============

Case 3:13-cv-30125-MAP Document 4-3 Filed 07/01/13 Page 4 of 6

============================================================================

Requested by: A.LITTMAN/NH

Date of Report: 11/16/2012 Page: 3

CT DEPT OF EMERGENCY SERVICES AND PUBLIC PROTECTION STATE POLICE BUREAU OF IDENTIFICATION 1111 COUNTRY CLUB RD MIDDLETOWN 1 CT. 06457

SPBI/SID#: CT00464733

{CONVICTED FELON}

Inmate#: 00141754

Dkt: N06N-CR98-0469393-S UAR:00986356,08157870 1 08162264,08164532

Name: REID,MARK

DOB: 04/07/1964

Addr: 240 SHEFFIELD AVE 1 NEW HAVEN,CT 00000

FV?: Y ALC?: NAR?:

CDL?: CV?: HM?:

Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-ASSAULT 3

( 53a-61

) (MISD-A)

1 CT (S)

lYR JAIL, lYR SUSP,CONSEC, 2YR PROB

Offense Occurrence Date: 07/06/1998 Verdict Date: 03/29/2000

2-FLR TO APPEAR 2(53a-173

) (MISD-A)

1 CT(S)

lYR JAIL, lYR SUSP, 2YR PROB

Offense Occurrence Date: 09/29/1998 Verdict Date:'03/29/2000

3-FLR TO APPEAR 2(53a-173

) (MISD-A)

1 CT(S)

lYR JAIL, lYR SUSP,CONCUR, 2YR PROB

Offense Occurrence Date: 09/29/1999 Verdict Date: 03/29/2000

12-Arrest Date: 07/06/1998 Agency: NEW HAVEN

Case#:

41830

Disp Date: 07/28/1999 Rearrest Date: 05/30/1999

Dkt: N06N-MV98-0366242-S UAR:08157870,00225426

Name: REID,MARK

DOB: 04/07/1964

Addr: 240 SHEFFIELD AVE,NEW HAVEN,CT 00000

Detained at: LLU

FP SUPPORTED?: Y

Chrg l-UND SUSPENSION (14-215

) (MISD- U)

1 CT (S)

CONDITIONAL DISCHARGE

30DY JAIL, 30DY SUSP, lYR COND DISCH

Offense Occurrence.Date: 07/06/1998 Verdict Date: 07/28/1999

2-FLR TO APPEAR 2(53a-173*

) (MISD-A)

1 CT(S)

UNCONDITIONAL DISCHARGE

Offense Occurrence Date: 10/29/1998 Verdict Date: 07/28/1999

11-Arrest Date: 05/21/1997 Agency: HAMDEN

Case#:

97041538

Disp Date: 02/20/1998 Rearrest Date: 12/04/1997

Dkt: N07M-CR97-0180992-S UAR:00719656,00819728,00813820

Name: REID 1 MARK Addr: 436 SHELTON AVE,HAMDEN,CT

DOB: 04/07/1964

Bond:

$500 (SET)

Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-RCKLES ENDNGR 2(53a-64

) (MISD-B)

1 CT (S)

6MO JAIL, 6MO SUSP, 2YR PROB

Offense Occurrence Date: 05/21/1997 Verdict Date: 02/20/1998

10-Arrest Date: 02/18/1997 Agency: HAMDEN

Case#:

94206853

Disp Date: 02/20/1998 Rearrest Date: 12/04/1997

Dkt: N07M-CR97-0179192-S UAR:00719912,00189192

Name: REID,MARK A

DOB: 04/07/1964

Addr: 434B SHELTON AVE,NEW HAVEN,CT

Bond:

$500 (SET)

Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-WPN IN MTR VEH (29-38

) (FEL -U)

1 CT (S)

$350 FINE

Offense Occurrence Date: 02/18/1997 Verdict Date: 02/20/1998

============================================================================

Case 3:13-cv-30125-MAP Document 4-3 Filed 07/01/13 Page 5 of 6

=========~============~===========~========~================================

Requested by: A.LITTMAN/NH

Date of Report: 11/16/2012 Page: 4

CT DEPT OF EMERGENCY SERVICES AND PUBLIC PROTECTION STATE POLICE BUREAU OF IDENTIFICATION 1111 COUNTRY CLUB RD MIDDLETOWN, CT. 06457

SPBI/SID#: CT00464733

{CONVICTED FELON}

Inmate#: 00141754

9-Arrest Date: 02/01/1997 Agency: NEW HAVEN

Case#:

6870

Disp Date: 06/11/1997

Dkt: N06N-CR97-0443995-S UAR:00775612

Name: REID,MARK .

DOB: 04/07/1964

Addr: 723 ELM ST,NEW HAVEN,CT

FP SUPPORTED?: Y

Chrg 1-THREATENING

(53a-62

) (MISD-A)

1 CT (S)

CONDITIONAL DISCHARGE

6MO JAIL, 6MO SUSP, 1YR COND DISCH

Offense Occurrence Date: 02/01/1997 Verdict Date: 06/11/1997

8-Arrest Date: 09/17/1996 Agency: NEW HAVEN

Case#:

63104

Disp Date: 12/23/1997 Rearrest Date: 12/19/1997

Dkt: N06N-MV96-0356047-S UAR:00016198,00816383,00845848,00911409

Name: REID,MARK

DOB: 04/07/1964

Addr: 39 LAKE PL,NEW HAVEN,CT

Bond:

$1000 (SET)

Detained at: LLU

FP SUPPORTED?: Y

Chrg 1-FLR TO APPEAR 2 (53a-173*

) (MISD-A)

1 CT(S)

UNCONDITIONAL DISCHARGE

Offense Occurrence Date: 12/19/1996 Verdict Date: 12/23/1997

7-Arrest Date: 07/27/1995 Agency: NEW HAVEN

Case#:

79641

Disp Date: 08/31/1995

Dkt: N06N-CR95-0417616-S UAR:00571447

Name: REID,MARK

DOB: 04/07/1964

Addr: 723 ELM ST,NEW HAVEN,CT

Bond:

$500 (TERM)

FP SUPPORTED?: Y

Chrg l-INTRFERE/RESIST(53a-167a

) (MISD-A)

1 CT(S)

CONDITIONAL DISCHARGE

6MO JAIL, 6MO SUSP, 1YR COND DISCH

Offense Occurrence Date: 07/27/1995 Verdict Date: 08/31/1995

6-Arrest Date: 10/09/1993 Agency: NEW HAVEN

Case#:

106616

Disp Date: 12/21/1993

Dkt: N06N-CR93-0386272-S UAR:00282659

Name: REID,MARK

DOB: 04/07/1964

Addr: 723 ELM ST,NEW HAVEN,CT

Bond:

$2000 (NON S)

FP SUPPORTED?: Y

Chrg 1-CARRY DNGRS WPN(53-206(a) ) (FEL -U)

1 CT(S)

CONDITIONAL DISCHARGE

1YR JAIL, 1YR SUSP, 1YR COND DISCH

Offense Occurrence Date: 10/09/1993 Verdict Date: 12/21/1993

5-Arrest Date: 08/30/1992 Agency: NEW HAVEN Disp Date: 11/04/1992 Dkt: N06N-CR92-0360046-S Name: REID,MARK A

Case#:

88090

DOB: 04/07/1964

=~=====================================~=~===========================;======

Case 3:13-cv-30125-MAP Document 4-3 Filed 07/01/13 Page 6 of 6

=============================•==============================================

Requested by! A.LITTMAN/NH

Date of Report: 11/16/2012 Page: 5

CT DEPT OF EMERGENCY SERVICES AND PUBLIC PROTECTION STATE POLICE BUREAU OF IDENTIFICATION 1111 COUNTRY CLUB RD MIDDLETOWN, CT. 06457

SPBI/SID#: CT00464733

{CONVICTED FELON}

Inmate#: 00141754

Addr: Chrg

1278 WHALLEY AVE,NEW HAVEN,CT

FV?: Y ALC?: NAR?:

CDL?: CV?: HM?:

Detained at: LLU

FP SUPPORTED?: Y

1-ASSAULT 3

(53a-61

) (MISD-A)

1 CT(S)

CONDITIONAL DISCHARGE

6MO JAIL, 6MO SUSP, lYR COND DISCH

Offense Occurrence Date: 08/30/1992 Verdict Date: 11/04/1992

4-Arrest Date: 11/03/1988 Agency: NEW HAVEN

Disp Date: 12/14/1988

VOP Date: 05/04/1990

Dkt: N06N-CR88-0297316-S

Name: REID,MARK A

DOB: 04/07/1964

Addr: 723 ELM ST,NEW HAVEN,CT

Bond:

$2500 (TERM)

FP SUPPORTED?: N

Chrg 1-POSS NARCOTICS (21a-279(a) ) (FEL -U)

1 CT(S)

2YR JAIL, 2YR SUSP,CONCUR, 3YR PROB

Offense Occurrence Date: 11/03/1988 Verdict Date: 12/14/1988

3-Arrest Date: 11/03/1988 Age~cy: NEW HAVEN

Disp Date: 12/14/1988

VOP Date: 05/04/1990

Dkt: N06N-CR88-0297317-S

Name: REID,MARK A

DOB: 04/07/1964

Addr: 723 ELM ST,NEW HAVEN,CT

FP SUPPORTED?: N

Chrg I-LARCENY 2

{53a-123

) (FEL -C)

1 CT(S)

2YR JAIL, 2YR SUSP,CONCUR, 3YR PROB

Offense Occurrence Date: 11/03/1988 Verdict Date: 12/14/1988

2-Arrest Date: 12/11/1986 Agency: NEW HAVEN Disp Date: 04/24/1987 Dkt: N06N-CR -0267425-S Name: REID,MARK
Chrg 1-P/NARC WITS F 6MOS ES

Case#: 50401 (64) FP SUPPORTED:? N

1-Arrest Date: 01/02/1986 Agency: NEW HAVEN

Case#:

50401

Disp Date: 02/19/1986

Dkt: N06N-CR86-0253089-S

Name: REID,MARK

DOB: 04/07/1964

Addr: 723 ELM ST,NEW HAVEN,CT

Bond:

$1000 (PRFS)

FP SUPPORTED?: Y

Chrg 1-POSS NARCOTICS (21a-279(a) ) {FEL -U)

1 CT(S)

2YR JAIL, 2YR SUSP, 4YR PROB

Offense Occurrence Date: 01/02/1986 Verdict Date: 02/19/1986

~=~==:=======~==================~===========================================

Case 3:13-cv-30125-MAP Document 4-4 Filed 07/01/13 Page 1 of 4
EXHIBIT C

Case 3:13-cv-30125-MAP Document 4-4 Filed 07/01/13 Page 2 of 4 --~~-·····-.-----~---~~-~---------,----..,..-.----------

Yale SCHOOL OF MEDICINE
Department ofPsychiatry
June 12, 2013

'BOWARD V. ZONANA, MD
Dir<ct<>r, Lm1• mrd.PsyclriMry Divisi~11 Pt>rcmicPsydri.ury .Rcsideucy 'IraiuiHg Din:c/or
Connecticut Mental Health Center 34 Park Stre.ct New Ha\'cn C':' ol>sl9·1187 T ~03 974·7JS8 II 203 974-7177 l1owa rd.zona na@)>ale.edu

To Whom It May Concern:

I, Madelon Baranoski, Ph.D., submit this letter in support of the application of Mark

Anthony Reid (A 035 973 579) for release from immigration detention. In my opinion, Mr. Reid

suffers from depression and Post Traumatic Stress Disorder, is in need of treatment, and is
willing to engage in that treatment. r evaluated Mr. Reid over three sessions for 7.5 hours. In

my opinion, although he is in need of treatment, he does not present a danger to himself or

others. He has strong ties to New Haven through his daughter, her mother, Ius friends, and a

former employer. He expressed a willingness to seek treatment at the Connecticut Mental Health

Center. He recognizes the benefit of treatment, appreciates his need to remain abstinent from

substances, and desires relief from his depressive symptoms. He also appreciates the

requirements he will face on parole and expressed a genuine desire to lead a productive and law-

abiding life, becoming a role model for his daughter. He

·

lities

as well as the opp01tunity to redirect his life, based on his

and his desire to overcome the

incarcerated.
I am an Associate Professor of Psychiatry at Yale School of Medicine, Department of Psychiatry, in the Law and Psychiatry Division and a licensed clinical psychologist at the Connecticut Mental Health Center, an agency in pa1tnership between the State of Connecticut Depa1tment of Mental Health and Addiction Services and the Yale School of Medicine, located in New Haven, Connecticut The Connecticut Mental Health Center serves clients with psychiatric and substance abuse disorders, and many clients are involved with the criminal justice system. I am also director the New Haven Comt Diversion Program, which evaluates and refers for treatment defendants in the New Haven Superior ColJrt and recommends programs for treatment in lieu of incarceration when appropriate.
As faculty in the Law and Psychiatry Program, I supervised Dt·. Taiye Ogundipe, a fellow in the program who conducted a psychiatric evaluation of Mr. Reid and provided a written report
and testimony in Mr. Reid's inunigration case. I reviewed Dr. Ogundipe's report, and met with
Mr. Reid's legal counsel. After the Immigration Judge denied Mr. Reid's claim, I went to see

Case 3:13-cv-30125-MAP Document 4-4 Filed 07/01/13 Page 3 of 4

Mr. Reid in the Franklin County Jail, where he was being held in immigration detention. I visited Mr. Reid three times, first on May 2, 2013 and again on May 9, 2013, and finally on May 16, 2013. Each visit lasted 2.5 to 3 hours. I also spoke with Mr. Reid on the phone for one hour on April26, 2013, before my first visit.

As documented and diagnosed by Dr. Ogundipe, Mr. Reid suffers from Post-Traumatic

Stress Disorder (PTSD) as a result of traumatic experiences during his childhood in Ja.u><U'-'"•

where he was persistently totmented and attacked

children

has

one

panic attack while in

immigration detention. He had significant suicidal plans and in my visits with him described

feelings of

related not only to his incarceration but to the response of other inmates

Mr. Reid agreed to seek treatment while incarcerated and has taken

ariti~d1epressant mc~dll:::at!ton as prescribed. His openness to accepting treatment provides a strong

foundation for his successfulretum to the community.

In my opinion, based on Dr. Oguudipe's and my assessment, Mr. Reid will not pose a

danger to others if released from detention. Although Mr. Reid has been convicted of several rn.iitor violent offenses in the past, these days are long behind him. He is now a 49~year-old man

eager for a chance to get his life back on track. Because he is willing to engage in treatment and

appreciates the benefit of treatment, he does not present a current a danger to himself. Although

Mr. Reid suffers from depression, he is not acutely suicidal, and release fi:om detention will

likely lead to significant improvements in his mental health and wellbeing. Mr. Reid has a

history of substance abuse but he has been substance free throughout his incarceration and he

expressed strong conviction to remain abstinent. In addition, he will return to the community on

parole supervision by the State of Connecticut and he is aware that there will be monitoring of

his

use with

he to relapse. Furthermore, he is no longer attempting

and he will now have access to appropriate

connections in New Haven.

4 Mr. Reid has longstanding connections to the New Haven community-most importantly

his daughter

with whom he is very close and longs to reconnect after years of physical

separation. All of Mr. Reid's professional connections are located in the New Haven area-it is

the only home he has ever known as an adult.

During my visits with Mr. Reid, I spoke with him about his mental health after spending

several months in immigration detention, and in the wake of learning about the adverse decision

by the Immigration

who found that

about

struggle

the

s

ordering him deported to a country he knows

4hls little
teenage daughter

he fears his We also talked about his family, especially his
military service and his interest in veterans' issues, and his

professional and literary interests. Mr. Reid demonstrated that he is ready for therapy and has

the capacity to engage in psychotherapy that will be an essential component of treatment.

2

Case 3:13-cv-30125-MAP Document 4-4 Filed 07/01/13 Page 4 of 4

The conditions of Mr. Reid's detention greatly exacerbate his mental health issues.

Although Mr. Reid is receiving basic medical attention within the Franklin County Jail-for

example, he was recently prescribed antidepressants-he does not have recourse to the full range

of treatment and coping mechanisms that would be available to him on the outside. For example,

he cannot even go for a long walk, something he has found helpful in the past to ameliorate the

symptoms of his PTSD, like hyper-arousal, and his anxiety. Additionally, Mr. Reid cannot

while detained, as that would

and in

his past

If released, .Mr. Reid will have access to high-quality mental health treatment ·and counseling free of charge at the Connecticut Mental Health Center. I will work with other staff at the Center to ensure that Mr. Reid's mental health needs are fully attended to. Mr. Reid's legal counsel have infotmed me that they and Mr. Reid have made all possible atTangements· for his housing in New Haven in the event ofhis release.
Sincerely,
[J&NnJ~·
, Madelon Baranoski, Ph.D. Associate Professor of Psychiatry Yale School ofMedicine Department of Psychiatry

! I

3

Case 3:13-cv-30125-MAP Document 4-5 Filed 07/01/13 Page 1 of 3

Case 3:13-cv-30125-MAP Document 4-5 Filed 07/01/13 Page 2 of 3

UNITARIAN UNIVERSALIST SOCIETY: EAST

153 West Vernon Street Manchester, CT 06042-2209 860 646-5151 Fax:860 649-1565 · uuse153@sbcglobal.net
www .uuse.org
The Rev. Joshua Pawelek: ·
Minister
UNITARIAN UNIVERSALIST.
ASSOClATION OF CONGREGATIONS

May20, 2013

To Whom It May Concern:

I am the Rev. Joshua Mason Pawelek, minister of the Unitarian Universalist Society: East (UUS:E) in Manchester, CT. I am writing in support of Mark Reid's application for bond While he awaits the results of his immigration appeal.

UUS :E is a 300:-member Unitarian Universalist congregation with strong commitments to personal spiritUal growth for adults.and children, environmentalism, and social justice activism. My ministry involves preaching and leading worship on Sunday mornings, providing pastoral care to members of the congregation, supervising staff and volunteers, and e:Q.gaging in a variety of social justice initiatives in the wider community.

I first came to know Mark Reid in the spring of2012. He contacted me

at the advice of two Hartford~area veterans-rights workers who

believed I would be able to provide pastoral care to help him with his

immigration problems. We spoke by phone on a regular basis

. (approximately 2-3 times per month) Until he was transferred from the
Brooklyn Correctional Institution in early November. I visited him

once in person at the Brooklyn Correctional Institution in September.

We have not spokep.since his transfer.·

· . . ..

During some of our calls Mr. Reid spoke about what he hopes to

achieve upon his release. In short, he expects to become a productive

member of society again. He has many years of experience as· a · ·· .· mortgage.broker andh~pes he can find work in the mortgage industry.
He is also pursuing his education as a paralegal to increase his. options

for.gainful employment upon his release from prison. He.has also ·

spoken to nie about joining a Unitarian Universalist congregation, in

part because our congregations

- . a , and in part because I have .

·

· ~by the support he lias.received and spe8_ks often of wanting to

'give back' to society:in some way.

·

·

Formed in 1969, Unitarian Universalist Society: East is. a welcoming, liberal religious community

Case 3:13-cv-30125-MAP Document 4-5 Filed 07/01/13 Page 3 of 3
I

I expect to continue supporting Mr. Reid as he readjusts to life outside of prison. My church and

i

I can provide limited fmancial support (e.g., We are currently covering the cost for Mark's

I' .

paralegal course); I can help him connect with appropriate social service providers as needed;

and I can make sure he is connected to a Unitarian Universalist congregation (UUS :E or one

closer to where he lives) if he wishes to be pf a spiritual community. As mentioned above,

Unitarian Universalist congregations

If you have any questions or would like to speak further about the content of this letter, please do

· not hesitate to contact me at UUS :E at (860) 646-5151 or at my home office at (860) 652-8961 or

by email at revpawelek@sbcglobal.net.

·

Sincerely,

The Rev. Joshua Mason Pawelek

I!'

Case 3:13-cv-30125-MAP Document 4-6 Filed 07/01/13 Page 1 of 2
EXHIBITE

Case 3:13-cv-30125-MAP Document 4-6 Filed 07/01/13 Page 2 of 2

··-····-····· ·:·~:....

( ... ~ .

-- ............ -.I :·····.· _._·,·-

Inmate Performance Evaluation Form
Connecticut Department of Correction

CN 100101 REV6/30/09

_ Inmate name: REID, MARK

Inmate number: 141754

_Facility/Unit: CARL ROBINSO~ CORRECTIONAL INSTITUTION

Date: 4/14/11

Assignment title: VOICES

Evaluation period: 03/08/11 - 04/14/11

Criteria Attendance
I riitiative Productivity
Attitude Overall

fQ.Q!

Fair

Good Excellent

0 0

D

1:8)

·D 0

(gj

D

0

0

t8J

D

0

0

t8J

D

0

D t8J

D

Comments and recommendations: Inmate Reid, Mark #141754 has successfully completed the 12 sessions of the Voices program at C.R.C.I. Voices is a program in which participants learn about the 'impact of crime on the victims. This awareness helps participants learn to be accountable for their actions and effects of the crime on others.

I lnma.te signature:
Supervisor signature: Reviewer name: CAS~ Reviewer signature:

Date: Cf-(
Date:4/14/11
Date:4/14711
i .

Case 3:13-cv-30125-MAP Document 4-7 Filed 07/01/13 Page 1 of 2
EXHIBITF

Case 3:13-cv-30125-MAP Document 4-7 Filed 07/01/13 Page 2 of 2
rrom•~c..:>
,...
~·.

Junt 17,2013

I

,i

Michael Wishuio

. .

Jerome .N, Frank Legal Servi~s OrganiZation

Yale Law School

P.O. Box .209090

..... New Raven, CT 06520-9090

' I
Re: Mark Reid Howinc

Dear Attorney Wlshnie:

My name is Keith Thomas and I am theM~maser of Life House LLC,, which operate~ 11ober

bousins in the grco.ter New Ha.ven area. 1have spoken with Mr. Mark Reid and am writing to

confirm that I can provide a room for Mr. Reid upon release from uchmtion.

·'
li

i
OUr houses provide a elean and safe, sober environment for our clien.i.s.

lf you have rmy questions or require any additional information, please feel free to contact me at 203-507-0449.

,.., Sin' c:fe/.rJ7...t.:jy• (;l{
Keith 'l'bomas
Manager
[.ife House~ LLC 1471 Dlxwcll Ave.• Hamden, CT 763 Georg~: St, New Have~ CT.

Case 3:13-cv-30125-MAP Document 4-8 Filed 07/01/13 Page 1 of 6
EXHIBITG
I
I 1.
I
i
i
I
i

Case 3:13-cv-30125-MAP Document 4-8 Filed 07/01/13 Page 2 of 6

61STATE OF CONNECTICliT BOARD OF PARDONS & PAROLES INTERSTATE COMPACT OmCE 55 WEST MAIN STREET, SUITE 520
WATERBURY, CT 06702
TELEPHONE: (203) 805-6605
Dannel P. Malloy Governor

FAX: (203) 805-6357
ERIKA TINDILL Chair

RELEASE TO DETAINER

REID. MARK cr# 141754 is being released on parole and turned over to IMMIGRATION AtrrHORITIES
for DETAINER PURPOSES. If the said REID. MARK is released from custody at any time before 10/22/2014 (SUBJECT TO CHANGE PENDING RREC), the expiration of the maximum 5 YEAR Connecticut sentence, and on which sentence he is now being released on parole, said REID. MARK must immediately contact:

Interstate Compact Office Connecticut Board of Parole
55 West Main St, Waterbury cr 06702
(203) 805-6683

or unless instructed to report to a Connecticut Parole Office in the djstrlct where you will reside. Failure to contact this office or report as instructed will constitute a violation of parole I, REID, MARK do hereby declare that I have read the above paragraphs which are part of my parole agreement and I hereby accept the conditions imposed therein.

Signed, in duplicate, this ___/ ____day of_...;Q=.::..~~'·+'t~~...,;~;L.-\-+----'' 2012.

Parolee's Signature

x~L~~
Witness

Case 3:13-cv-30125-MAP Document 4-8 Filed 07/01/13 Page 3 of 6
.~ ..

• '· :: ~,t'

··'
.-.·:

:-... ;!',.

1,·: ..

;:.. ·

·.'.,:

..... :

,•, ;;;. :,·.,

· - ~~~---.---,--
.· '·

Case 3:13-cv-30125-MAP Document 4-8 Filed 07/01/13 Page 4 of 6

08/03/2012
~1~:"1".";~"~'1r·STATE OF CONNECTICUT
BOARD OF PARDONS AND PAROLES

Page 1 of 2

Parole Name: Type of Release:
Hearing Location:

Reid, Mark DISCRETIONARY Brooklyn Cl

Numbers;
Release on or After:
Hearing Date:

CT: 141754-02 10/21/2012 12/30/2011

1. REl,Ei\SE DlHECIION,Upon release, I will report to my assigned parole officer as directed and follow the
parole officer's instructions. rwill be assigned to one of several levels of community supervision, and agree

to participate in a programs as determined by my parole officer. l will live in a residence approved by my

parole officer and wlll seek, obtain and maintain employment throughout my parole term, or perform

community service,

2. OBEY ALL LAWS. I will obey all laws, and to U1e best of my ability, fulfill al: my legal obligations, including

payment of all applicable child support and alimony orders. I will notifY parole officer within 48 hours of my

arrest for any offense. J will not use, or have in my possession or control, any illegal dmg, narcotic or drug

paraphernalia; firearms, ammunition, or any other weapon.

3. TRAVEl. I will not leave the State of Connecticut without the prior written pennission of my parole officer. I

agree to abide by my singed waiver of extmdition as set out iu rny parole application.

4. GANG AFFILIATION. I will not associate or affiliate viith any street gang, criminal organi7..ation or with nny

individual members thereof.

"

5. SEARCH. I will submit to a search of m)' person, possessions, vehicle, residence, business or other area under

my control at any time, announced or unannounced, with or without cause, by parole or its agent to verify my

compliance with the conditions of my parole.

6. STATUTORY RELEASE CRITERIA. My release on pnrole is bused upon the premise that th~;re is a reasonable

probability that I will live and remain at liberty without violating the law and that my release is not

incompatible with the welfare of society. In the event that I engage in conduct in the future which renders this

premise no longer valid, then my parole will be revoked or modified accordingly.

7. ADDITIONAL CONDITIONS. You also· must abide by the following individual conditions:
\'\1\ \} .
~Con\nc\ Co Defendant

V'J\

THROUGHOUT YOUR PERIOD ON PAROLE, YOU ARE TO HAVE NO CONTACT WITH THE CODEFENDANT(S) OF YOUR OFFENSE.

\(\}\ R ---,Electronic Monitoring YOU WILL PARTICIPATE IN ELECTRONIC MONITORING.

V...!,1 ~ _ , Ins Da!alnar

.

YO\) ARE PAROLED TO YOUR IMMIGRA TION.AND CUSTOMS ENFORCEMENT (ICE) DETAINER. IF SUBSEQUENT TO BEING RELEASED TO ICE YOU DO NOT FULLY COOPERATE WITH ALL EFFORTS TO EFFECTUATE YOUR DEPORTATION YOU WILL

SE RETURNED TO THE CUSTODY O.F THE STATE TO FINISH YOUR SENTENCE. IF YOU ARE DEPORTED FROM THE UNITED

STATES YOU ARE NOT TO RETURN. IN THE EVENT THAT THIS DETAINER IS NOT EFFECTED OR IF YOU ARE RELEASED

FROM ICE AUTHORITIES PRIOR TO THE EXPIRATION OF YOUR CONNECTICUT TERM, THEN YOU MAY BE RELEASED TO A FULL PAROLE PROGRAM IN THE STATE OF,CONNECTICUT.

Fallurc to comply wi lh these conditions may result in the rcvocmion of parole, and, if npplicablc, the loss or good conduct credits earned
while in prison.
I have reud or have had read to me, in my primary language, tho conditions of parole releu.~e. I fully understand my obligations and agree to
comply with these conditions of release on pnrolc. ln addition, r understand that these conditions shall apply to any tenn of special parole for which r may have been sentenced to serve.

Case 3:13-cv-30125-MAP Document 4-8 Filed 07/01/13 Page 5 of 6

Name: Signature: Date of Signature:

08/0312012
Michelle Esposito 05/2312012
Oete: Oule:

Page2 of2

Case 3:13-cv-30125-MAP Document 4-8 Filed 07/01/13 Page 6 of 6
I·
~------Tl I I 1 I I I

Case 3:13-cv-30125-MAP Document 4-9 Filed 07/01/13 Page 1 of 4
EXHIBITH.

Case 3:13-cv-30125-MAP Document 4-9 Filed 07/01/13 Page 2 of 4

U.S. Department of Homeland Security

•

Notice to Appear

In removal proceedings under section 240 of the Immigration and Nationality Act:

Subject ID 1 341233140

FIN #: 1142625436

File A035 973 579

DOB: 4f.'l964

:&:vent No: HAR1210000091

In the Matter of: Mark Anthony REID
R e s p o n d e n t : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - currently residing at:
C/O VRANXLIN COUNTY HOUSE OF CORRBCTIONS 160 BLM ST , GRBBNPIBLO MASSACHUSBTTS 01301

(Number, street, city and ZIP code)

(Area code and phone number)

0 1. You are an arriving alien.
0 2. You are an alien present in the United States who has not been admitted or paroled.
[iJ 3. You have been admitted to the United States, but are removable for the reasons stated below.

The Department of Homeland Security alleges that you: See Continuation Page Made a Part Hereof

' ..:..\-

On the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to the following

provision(s) of law:

·

See Continuation Page Made a Part Hereof

0 This notice is being issued after an asylum officer has found that the respondent has demonstrated a credible fear of persecution
or torture.
0 Section 235(b)(l) order was vacated pursuant to: DsCFR 208.30(f)(2) 0 8CFR 235.3(b)(S)(iv)
YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at:
A, A. Ribicoff l!'ederal Building 450 Main St. Rill 628 Hartford CONNSCTICtrr US 06103

charge(s) set forth above. Dare: November 13, 2012

DETENTION & DEPORTATION OFF(

Hartford, C'r
(City and State)
See reverse for important information

Form I-862 (Rev. 08101/07)

Case 3:13-cv-30125-MAP Document 4-9 Filed 07/01/13 Page 3 of 4

U.S. Department of Homeland Security
Alien's Name
!Mark Anthony REID

Continuatio-e for Form I862

File Number

Date ,oJo,'t<.P~.!Je.o- I~~;;;_

A035 973 579

eetteber 1"8.,...-2-&-H

Event Not HAR121000009l

..f

THE SERVICE ALLEGES THAT YOU:
1. You are not a citizen or national of the United States1 2. You are a native of JAMAICA and a citizen of JAMAICA; 3. You were admitted to the United States at Miami, FL on or about September 7, 1978 as a Lawful Permanent Resident (PS-3}; 4. You were, on June 6, 2002, convicted in the State of Connecticut Superior Court in Milford, CT for the offense of Possession of Heroin, in violation of C.G.S./P.A. No: 2la-279 (a} • .5. You were, on July 7, 2010, convicted in the State of Connecticut Superior Court in New Haven, CT for the offense of Sale of a Narcotic Substance, in violation of c.G.S./P.A. No: [2la-278(b). 6. You were, on August 25, 2004, convicted in the State of Connecticut Superior Court in New Haven for the offense of Sale of Halucinogen/Narcotic in violation of c.G.S./P.A. No: 2la-277(a). 7. You were, on August 25, 2004, convicted in the State of Connecticut Superior Court in New Haven for the offense of Sale of Balucinogen/Narcotic in violation of C.G.S./P.A. No: 2la-277(a).

ON THE BASIS OF THE FOREGOING, IT IS CHARGED THAT YOU ARE SUBJECT TO REMOVAL FROM THE UNITED STATES PURSUANT TO THE FOLLOWING PROVISION(S) OF LAW:
Section 237(a) (2) (A) (iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in Section lOl(a) (43) (B) of the Act, an offense relating to the illicit trafficking in a controlled substance, as described in section 102 of the Controlled Substances Act, including a drug trafficking crime, as defined in section 924(c) of Title 18, United States Code.
Section 237(a) (2) (B) (i) of the Immigration and Nationality Act, as amended, in thab, at any itime after admission, you have been convicted of a violation of (or a conspiracy or attempt 'to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 u.s.c. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana.

Signature Form I-831 Continuation Page (Rev. 08/01/07)

SUPV. Dl!lTBNT:tON &: DEPORTATION OJfi'C
_ _3 _ of_ _3 _ Pages

Case 3:13-cv-30125-MAP Document 4-9 Filed 07/01/13 Page 4 of 4

Notice to Respondent
Warning: Any statement you make may be used against you in removal proceedings.
Allen Registration: This copy ofthe Notice to Appear served upon you is evidence ofyour alien registration while you are under removal proceedings. You are required to carry it with you at all times.
Representation: If you so choose, you may be represented in this proceeding, at no expense to the Government, by an attorney or other individual authorized and qualified to represent persons before the Executive Office for Immigration Review, pursuant to 8 CFR 3.16. Unless you so request, no hearing will be scheduled earlier than ten days from the date of this notice, to allow you sufficient time to secure counsel. A list of qualified attorneys and organizations who may be available to represent you at no cost will be provided with this notice.
Conduct of the hearing; At the time of your hearing, you should bring with you any affidavits or other documents, which you desire to have considered in connection with your case. If you wish to have the testimony of any witnesses considered, you should arrange to have such wit:ilesses present at the hearing.
At your hearing you will be given the opportunity to admit or deny any or ail of the allegations in the Notice to Appear and that you are inadmissible or removable on the charges contained in the Notice to Appear. You will have an opportunity to present evidence on your own behalf, to examine any evidence presented by the Government, to object, on proper legal grounds, to the receipt of evidence and to cross examine any witnesses presented by the Government. At the conclusion ofyour hearing, you have a right to appeal an adverse decision by the immigration judge.
You will be advised by the immigration judge before whom you appear ofany relief from removal for which you may appear eligible including the privilege of departure voluntarily. You will be given a reasonable opportunity to make any such application to the immigration judge.
Failure to appear: You are required to provide the DHS, in writing. with your full mailing address and telephone number. You must notify the Immigration Court immediately by using Form EOIR-33 whenever you change your address or telephone number during the course of this preceeding. You will be provided with a'copy ofthis form. Notices ofhearing will be mailed to this address, If you do not submit Form BOIR.-33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shaJI not be required to provide you with written notice of your hearing. Ifyou fail to attend the hearing at the time and place designated on this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained by the DRS.
Mandatory Duty to Surrender for Removal: If you become subject to a final order of removal, you must surrender for removal to one of the offices listed in 8 CFR 241. 16(a). Specific addresses on locations for surrender can be obtained from your local DHS office or over the internet at http://www.jce.gov/about/drolcontact.htm. You must surrender within 30 days from the date the order becomes administratively final, unless you obtain an order from a Federal oourt, immigration court, or the Board of Immigration Appeals staying execution of the removal order. Immigration regulations at 8 CFR 24I.1 define when the removal order becomes administratively final. Ifyou are granted voluntary departure and fail to depart the United States as required, fail to post a bond in connection with voluntary departure, or fail to comply with any other condition or term in connection with voluntary departure, you must surrender for removal on the next business day thereafter. Ifyou do not surrt';nder for removal as required, you wilt be ineligible for all forms of discretionary relief for as long as you remain in the United States and for ten years after departure or removal. This means you will be ineligible for asylum, cancellation of removal, voluntary departure, adjustment of status, change of nonimmigrant status, registry, and related waivers for this period. If you do not surrender for removal as required, you may also be criminally prosecuted under section 243 of the Act.
Request for Prompt Hearing To expedite a determination in my case, I request an immediate hearing. I waive my right to a 10-day period prior to appearing before an immigration judge.

Before:

{Signature o}'Riispondent}

(Signature and Tille oflmmigralfon Officer)

Date;---------

This Notice To Appear was served on the respondent by me on //. /

'(Yi:iJ..

239(a)(l)(F) oftheAct.

@§ in person

D by certified mail, returned receipt requested

in the following manner and in compliance with section
D by regular mail

0 Attached is a credible fear worksheet.

~ Attached is a list of organization and attorneys which provide free legal services.

e alien was provided oral notice in the

English

language of the time and pia

consequences offailur appear,as J:!rovided in section 240(b)(7) of the Act

Form 1·862 Page 2 (Rev. 08/0l/07)

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 1 of 46
EXHIBIT I

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 2 of 46

0

0

Attorney or Representative
Name: ~\~~"'e.\ ~. W~Sht\;e

Address:

United States Department of Justice Executive Office for Immigration Review Immigration Court
Hartford, Connecticut

)

In the Matter of:

)

Mo.r-"'- Ai\~Md- ~t.'"' .

) )

. )

_I_n_re_m_ov_a_l p_r_oc_ee_d_in_gs___________ ))

FileNo.:

RESPONDENT'S WRITTEN PLEADING
9n behalf ofmy client, I make the following representations:

1.

N The respondent concedes proper service ofthe Notice to Appear, dated 0 v • I?, 1).oil .

2. I have explained to the respondent (through an interpreter, ifnecessary):

a. the rights set forth in 8 C.P.R. § 1240.1O(a); b. the consequences of failing to appear in court as set forth in INA § 240(b)(5); c. the limitation on discretionary reli~f for failure to oppear set forth in INA§ 240(b)(7); d. the consequences ofknowingly filing or making a frivolous application as set forth in
INA§ 208(d)(6);
e. the requirement to notify the court within five days ofany change ofaddress or telephone number, using Form EOffi.-33/IC pursuant to 8 C.P.R.§ 1003. 1S(d).

3. The respondent concedes the following allegation(s) _o..-;:::..._\_,_\,___ _ __ __ __, and
denies the following allegation{s) - - -- - -- - - - --
4. The respondent concedes the following charge(s) of removability _ _M__,_\.___ ___,. and
denies the following charge(s) of removability--·---------~

5. In the event of removal, the respondent;

0

names

as the cou Utry.St.oImwmhi19rh,raret1moonv.~a~,AI.¥,>!1\4J?t1~i ted;

OR : JE~~~~fl_

declines to designate a country of removal.

J { \

lmu.u;;.r;~.li•N"' J1:1clgc
---------·-·---#·'

000007

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 3 of 46

0

0

6. The respondent will be applying for the following fonns ofrelief from removal:

" 0
51

Termination of Proceedings

Asylum Withholding

o f Removal

(Restriction

on

Removal)

(C. o ~

"~"'

•
+•

0"'

A~il\s+ \orhAre..r

0

Adjustment of Status

0

Cancellation ofRemoval pursuant to INA §

I
I

0

Waiver ofInadmissibility pursuant to INA§

I

0
.~

Voluntary Departure
Other(specify) rt>Sl~C.l, kw. c~+~~~

0

None

7. Ifthe relieffrom removal requires an application, the respondent will file the application (other thnn asylum), no later than fifteen (15) days before the date of the individual calendar hearing, unless otherwise directed by the court. The respondent acknowledges that, if the application(s) are not timely filed, the application(s) will be deemed waived and abandoned under 8 C.F.R. §
1003.31(c).

If the respondent is filing a defensive asylum application, the asylum application will be filed in open court at the next master calendar hearing.

8. If background and security investigations are required, the respondent has received the DHS biometrics instructions and will timely comply with the instructions. I have explained the instructions to the respondent (through an interpreter, if necessary). In addition, I have explained to the respondent (through an interpreter, if necessary), that, under 8 C.F.R. § 1003.47(d), failure . to provide biometrics or other biographical information within the time allowed will constitute abandonment of the application unless the respondent demonstrates that such failure was the result of good cause.
9. The respondent estimates that ~ hours will be required for the respondent to present the case.

10. 0 . It is requested that the Immigration Court order an interpreter P,roficient in the

_ _ _ _ _ _ _ language,

dialect;

OR · The respondent speaks English nnd does not require the services of an interpreter.

Date

~2~cntative for the Respondont

000008

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 4 of 46
0

RESPONDENT,S PLEADING DECLARATION

j{Q\·J ·, I, \-\o...t-\;.

have been advised of my rights in these proceedings by my attorney .

or representative. I understand those rights. I waive a further explanation of those rights by this

cowt.

I have been advised by my attorney or representative ofthe consequences of failing to appear for a hearing. I have also been advised by my attorney ofthe consequences of failing to appear for a scheduled date ofdeparture or deportation. I understand those consequences.

1have been advised by my attorney or representative ofthe consequences ofknowingly filing a frivolous asylwn appllcation. I understand those consequences.

I have been advised by my attorney or representative ofthe consequences offailing to follow the DHS biometrics instructions within the time allowed. I understand those consequences.

I understand that ifmy mailing address changes I must notify the court within S days of such change by completing an Alien's Change ofAddress Fonn (Fonn EOIR·33/IC) and filing it with this court.

Finally, my attorney or representative has explained to me what this Written Pleading says. I understand it, I agree with it, and I request that the court accept it ~s my pleading.

Respondent

000009

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 5 of 46
EXHIBIT J

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 6 of 46

NOTICE OF HEARI~G IN REMOVAL PROCEEDINGS

IMMIGRATION COURT

450 MAIN ST., ROOM 628

Call up date

RARTFORD, CT 06103

January 28,2013

RE: REID, MARK ANTHONY

FILE: A035-973-579

DATE: Dec 5, 2012

TO:

JEROME FRANK LEGAL ORGANIZATION - YALE LAW SCHOOL

WISHNIE, MICHAEL

P.O. BOX 209090

NEW HAVEN, CT 06520

Please take notice that the above captioned case has been scheduled for a

INDIVIDUAL hearing before the Immigration Court on Feb 13, 2013 at 08:30 A.M. at:

I:

450 MAIN ST., ROOM 628

HARTFORD, CT 06103

You may be represented in these proceedings, at no expense to the

Government, by an attorney or other individual who is authorized and qualified

to represent persons before an Immigration Court. Your hearing date has not

been scheduled earlier than 10 days from the date of service of the Notice to

Appear in order to permit you the opportunity to obtain an attorney or

representative. If you wish to be represented, your attorney or representative

must appear with you at the hearing prepared to proceed. You can request an

earlier hearing in writing.

Failure to appear at your hearing except for exceptional circumstances

may result in one or more of the following actions: (1) You may be taken into

custody by the Department of Homeland Security and held for further

action. OR (2) Your hearing may be held in your absence under section 240(b) (5)

of the Immigration and Nationality Act. An order of removal will be entered

against you if the Department of Homeland Security established by

clear, unequivocal and convincing evidence that a) you or your attorney has

been provided this notice and b) you are removable.

IF YOUR ADDRESS IS NOT LISTED ON THE NOTICE TO APPEAR, OR IF IT IS NOT

CORRECT, WITHIN FIVE DAYS OF THIS NOTI~E YOU MUST PROVIDE TO THE IMMIGRATION

COURT HARTFORD, CT THE ATTACHED FORM EOIR-33 WITH YOUR ADDRESS AND/OR

TELEPHONE NUMBER AT WHICH YOU CAN BE CONTACTED REGARDING THESE PROCEEDINGS.

EVERYTIME YOU CHANGE YOUR ADDRESS AND/OR TELEPHONE NUMBER, YOU MUST INFORM THE

COURT OF YOUR NEW ADDRESS AND/OR TELEPHONE NUMBER WITHIN 5 DAYS OF THE CHANGE

ON THE ATTACHED FORM EOIR-33. ADDITIONAL FORMS EOIR-33 CAN BE OBTAINED FROM

THE COURT WHERE YOU ARE SCHEDULED TO APPEAR. IN THE EVENT YOU ARE UNABLE TO

OBTAIN A FORM EOIR-'33, YOU MAY PROVIDE THE COURT IN WRITING WITH YOUR NEW

ADDRESS AND/OR TELEPHONE NUMBER BUT YOU MUST CLEARLY MARK THE ENVELOPE "CHANGE

OF ADDRESS." CORRESPONDENCE FROM THE COURT, INCLUDING HEARING NOTICES, WILL BE

SENT TO THE MOST RECENT ADDRESS YOU HAVE PROVIDED, AND WILL BE CONSIDERED

SUFFICIENT NOTICE TO YOU AND THESE PROCEEDINGS CAN GO FORWARD IN YOUR ABSENCE.

A list of free legal service providers has been given to you . . For

information regarding the status of your case, call toll free 1-800-898-7180

or 240-314-1500. For information on Immigration Court procedures, please

consult the Immig~ation Court Practice Manual, available at www.usdoj.gov/eoir.

CERTIFICATE OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL (M)

PERSONAL SERVICE (P)

TO: [ ] ALIEN [ ] ALIEN c/o Custodial Officer [m] ALIEN's ATT/REP [p] DHS

DATE: 12/5/12

BY: COURT STAFF SO

V3

Attachments: [ J EOIR-33. [ J EOIR-28 [ ] Legal Services List [ J Other

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 7 of 46
EXHIBITK

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 8 of 46

Joe Ellen Ardinger Chief Counsel
John P. Marley · Senior Attorney US Immigration and Customs Enforcement Department of Homeland Security 450 Main Street, Suite # 483 Hartford, CT 06103-3060 (860) 240-3615 .

NON-DETAINED

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Hartford Immigration Court

)

1N THE MATIER OF:

)

)

REID, Mark

)

)

)

_In_R_e_m_o_va_l _Pr_o_ce_ed_i_ng_s___________

)
)

File No. A 35 973 579

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DHS Request for Continuance

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 9 of 46
·.
The Respondent filed a Motion for Bond Hearing on June 11, 2013 and EOIR noticed DHS on June 12, 2013 that a hearing would be held they very next day. Unfortunately, the attorney responsible for this matter will not be assigned duty on 13 June, 2013 and is not available for the Bond Hearing. Mr. Marley also has an official DRS commitment outside the office on June 14, 2013.

An additional factor to consider in determining whether to grant or deny this DHS request

continu~ce FO~ for

is the fact that the respondent recently filed.a

request for information

contained in the DRS file. This resulted in the respondent's DRS file being transferred to the

National Records Center (NRC) to comply with the FOIA request. Presently, DHS does not have

the "A" file or any supporting documents necessary to litigate a bond hearing because the file is

at the NRC pursuant to the respondent's request

DRS recommends that because the Respondent is currently detained with an appeal pending before the Board of Immigration Appeals, that there is no urgency in litigating this case without the DHS file. DHS has ordered the file from the ~RC and anticipates having the file in approximately 10-business days.

Respectfully,
John Marley Senior Attorney

2

A35 973 579

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 10 of 46
CERTIFICATE OF SERVICE This is to certify that on June 12, 2013, I caused a true and correct copy of this document to be served on Yale Law School, Jerome N. Frank Legal Services, counsel for the Respondent, via mail P.O. Box 2019090, New Haven, CT 06520-9090.
John Marley Senior Attorney

3

A35 973 579

I

.

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 11 of 46

EXHIBITL

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 12 of 46 U.S. Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals Office ofthe Clerk

Ahmad, Muneer 1., Esq. Jerome N. Frank legal Serv. Organization P.O. Box 209090 New Haven, CT 06520-9090

5107 Leesburg Pike, Suite 2000 Falls Church, VIrginia 22041
DHS/ICE Office of Chief Counsel - HAR
P. 0 . Box 230217
Hartford, CT 06123-0217

Name: REID, MARK ANTHONY

A035-973 -579

Type of Proceeding: Removal

Date of this notice: 5/6/2013

Type of Appeal: Case Appeal

Filed By: Alien

FILING RECEIPT FOR APPEAL

The Board of Immigration Appeals acknowledges receipt of your appeal and fee or fee waiver request

(where applicable) on 5/3/2013

in the above-referenced case.

WARNING: If you leave the United States after filing this appeal but before the Board issues a decision your appeal will be considered withdrawn and the Immigration Judge's decision wilt become final as if no appeal had been taken (unless you are an "arriving alien" as defined In the regulations under 8 C.F.R. § 1001.1(q)).

WARNING: If you have been granted voluntary departure by the Immigration Judge, you must submit sufficient proof of having posted the voluntary departure bond set by the Immigration Judge to the Board of Immigration Appeals. Your submission of proof must be provided to the Board wilhfn 30 days of filing this appeal. If you do not timely submit proof to the Board that the voluntary departure bond has been posted, the Board cannot reinstate the period of voluntary departure. 8 C.F.R. § 1240.2(c)(3)(11).

PLEASE NOTE: In all future correspondence or flffngs with the Board, please list the name and allen registration number ("A" number)· of the case (as indicated above), as well as all of the names and "A" numbers for every family member who Is Included In this appeal.

If you have any questions about how to file something at the Board, you should reyiew the Board's Practice Manual at www.Jus!lce.!JOYieoir.

Proof of service on the opposing party at the address above Is required for ALL submissions to the Board of Immigration Appeals Including correspondence, forms, briefs, motions, and other documents. If you are the Respondent or Applicant, the "Opposing Party" Is the District Counsel for the DHS at the address shown above. Your certificate of service must dearly Identify the document sent to the opposing party, the opposing party's name and address, and the date It was sent to them. Any submission filed with the Board without a cer1!0cate of service on the OPPosing party will be relected.

ThomasRu

Userteam: PCM

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 13 of 46
EXHIBITM
'
1:

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 14 of 46

.. '.!

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U.S, Department of Homeland Security
Mark Anthony REID
C/Or CARL ROBINSON C.I . 285 SIDUO!R ROAD . :SNPIBLD, CONNBCTICOT 06082

Notice of CustodyDetermination

Event No: HAR1210000091
File No: A035 973 579
Date:-1-&/18/2 011
!6 lt)~.B&~ eM/~.

~

Pursuant to the authority contained in section 236 of the Immigration and Nationality Act and part 236 oftitle 8,
Code of Federal Regulations, I have determined that pending a fmal determinat~on by the iinmigrationjudge in
your case, and in the event you are ordered removed from the United States, until yo.u .are taken into custody for
removal, you shall be:

lil .detained in the custody ofthe Department ofHomeland Security. 0 released under bond in the amount of$._ _ __
0 released on your own recognizance.

Kl You m~y request a review of this determination by an immigration judge. 0 You may not request a review of this determination by an immigration 'udge be
Nationality Act prohibits your release from custody.

~• '-~ D-AVl·:D-OS-'rR-OBI-HSi~ti ----~~+------­ (Signature ofauthe<ized

SUPERVISORY DEPORTATION OFFICER
(Title ofauthorized officer)

Ho.rtford, CT

(Office location)

.IB'fdo D do not request a redetermination ofthis custody decision by an immigration judge.

llf1 aclmowled~ipt o~lthi notification.
, \:J ~ ~-&<_

.....~.L-J.....--..=:+.~

(Sigi,atureof reopondent)

RESULT OF CUSTODY REDETERMINATION

O n - - - - - - - ' custody status/conditions for release were reconsidered by:

0 Immigration Judge o DRS Official

0 Board oflmmigrationAppeals

The results ofthe redeterrnination/recon~iderationare:

0 No change - Original determination upheld.

0 Release- Order of Recognizance

0 Detain in custody ofthis Service.

D Release- Personal Recognizance

0 Bon4 amount reset to

0 Other: -~------

t
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r

(Signarurco.f officer}

Form 1-286 (Rev, 08/0l/07)

I
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Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 15 of 46
EXHIBITN

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 16 of 46
The Jerome N. Frank Legal Services Organization
YALE LAW SCHOOL
June 4, 2013
VIA CERTIFIED MAIL
Officer Hurley Department ofHomeland Security ICE Enforcement and Removal Operations Boston Field Office 10 New England Executive Park Burlington, MA 01803
. Re: ·Request to Refrain ~om Transferring Mr. Mark Anthony Reid (A# 035 973 579)
Dear Officer Hurley:
We are writing to request that the Department.of Homeland Security Immigration and Customs Enforcement refrain from transferring our client, Mark Anthony Reid (A# 035 973 579), from the Franklin CountY Jail and House of Correction in Greenfield, Massachusetts. We make this request in
order to facilitate our ability to provide effective legal representation to Mr. Reid in his ongoing
immigration proceedings.
Mr. Reid is currently appealing an adverse decision by the immigrationjudge to the Board of
Immigration Appeals. The process ofpreparing the appeal requires regular and frequent contact betw~en
Mr. Reid and his legal representatives. Moreover, given the fact-intensive nature of Mr. Reid's case, the
process of preparing his appeal is likely to require a substantial amount of time and an intense period of attorney-client communication. Furthermore, because briefing of the appeal to the BIA will not be complete until late July at the earliest, and because Mr. Reid intends to appeal any adverse decision by
the BIA to the U.S. CoUrt ofAppeals for the Second.Circuit, it is likely that Mr. Reid will·remain detained for some time, and that we will have an ongoing need to communicate with him about his case.
We will be able to more effectively represent Mr. Reid at Franklin County because it is the closest immigration detention facility to New Haven. Additionally,.we have encountered obstacles placing
confidential, legal phone calls to Mi. Reid at Plymouth County Correctional Facility, as well as to clients
detained in other Massachusetts facilities housing immigration detainees. For these reasons, we will be
best able to provide Mr. Reid legal assistance if ICE maintains custody of him at Franklin County.
P.O. BOX 209090, NEW HAVEN, CONNECTICUT 06520- 9090 • TELEPHONE 203 432- 4800 • FACSIMILE 203 432-1426 !=OURIER ADDRESS 127 WALL STREET, NEW HAVEN, CONNECTICUT 06511

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 17 of 46
Thank you for your consideration. Please do not hesitate to co.ntact me ifyou require further information. Sincerely,
Muneer I. Ahmad Supervising Attorney Counselfor Mark Anthony Reid

. ... I
Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 18 of 46
EXHIBITO

...,

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 19 of 46
.. I

Linda Evarts, Law Graduate Intern Tassity Johnson, Law Graduate Intern · Travis Silva. Law Graduate Intern Matthew S. Vogel, Law Graduate Intern Muneer I. Ahmad, Supervising Attorney Michael J. Wislmie, Supervising Attorney . Jerome N. Frank Legal Services Organization Yale Law School P.Q. Box 209090 New Haven, CT 06520-9090

DETAINED ·

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT HARTFORD, CONNECTICUT .

)

In the Matter of:

)

)

MARK. REID,

)

)

)

_In_re_m_o_va_l p_r_oc_ee_di_ng_s_. ______ ))

File No.: A 035 973 579 June 10, 2013

MOTION FOR BOND REDETERMINATION

Respondent Mark Reid, through his attorneys, moves this Court to promptly schedule·a ~ond redetermination hearing pursuant to INA§ .236(a) and (c), and 8 C.F.R. § 1003.19; and to set a reasonable bond.
In support of this motion, Mr. Reid states through counsel as follows: 1. Immigration and Custo.ms Enforcement ("ICE") took custody of Mr. Reid on November 13,2012 and has held him continuously since then, for approximately seven months.

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 20 of 46

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...

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2. Mr. Reid is currently being held at the Franklin County Jail and House of Corrections in Greenfield, Massachusetts. This Immigration Court has jurisdiction for bond purposes.over immigration detainees at Franklin County.
3. Mr. Reid.was taken into ICE custody after serving three years of a twelve year suspended sentence for the sale of illegal drugs, failure to appear in the first degree, and conspiracy to commit burg~ary in the third degree. Conn. Gen. Stat. Ann. § 21a-278(b); id. § 53a-103; id. § 53a-172.
4. On November 13, 2012, ICE refused to determine bond for Mr. Reid on the ground that he has been convicted of an aggravated felony. See Exhibit A. Pursuant to ICE's interpretation of INA § 236(c), no individual convicted of an aggravated felony is eligible for bond, even when the individual's immigration detention exceeds six months.
5. ICE's interpretation of INA§ 236(c) is contrary to the most recent construction of the statute by a federal court. In April2013, the U.S. Court ofAppeals for the Ninth Circuit held that the authority of the Department of Homeland Security ("DHS") to detain individuals shifts from INA§ 236(c) to INA§ 236(a) once their detention exceeds ·six months. Rodriguez v. Robbins,-- F.3d --, 2013 WL 1607706, slip op. at *7 (9th Cir. Apr. 16, 2013).
6. Under INA§ 236(a), individuals cannot be detained for longer than six months without being provided a bond hearing to contest the necessity of prolonged detention. Rodriguez, 2013 WL 1607706 at *4-5; Dioufv. Napolitano, 634 F.3d 1081, 1091-92 (9th
)
Cir.2011) (recognizing that detention under INA§ 236(a) becomes prolonged at 180 days, or six months); Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942, 95 1 (9th Cir.2008) (finding that "prolonged" detention under INA § 236(a) is permissible only when the

2

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 21 of 46
detained individual has been afforded "an adequate opportunity to contest the necessity of his detention.").
7. Mr. Reid has now been detained'for nearly seven months; thus, DHS holds him
pursuant'to INA§ 236(a), not INA §.236(c). As INA§ 236(a) does not authorize detentions
exceeding six months without a bond hearing, Mr. Reid.must be given a bond redetermination.
8. Numerous courts have rejected ICE's interpretati9n of INA§ 236(c), holding instead that the statutory provision must be construed to contain a limitation on the amount of time an individual can be detained without an individualized bond hearing. Flores-Powell v. Chadbourne, 677 F. Supp. 2d. 455,471 (D. Mass. 2010). Thus, individuals detained under JNA § 236(c) are entitled to a bond hearing when "no reasonable likelihood exists that the issue of ... [their] removal will be finally resolved in the foreseeable future" and they have been "held for an unreasonable period oftime pending removal proceedings." Bourguignon v. MacDonald, 667 F. Supp. 2d 175, 184 (D. Mass 2009); see also Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.
2011); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005); Ly v. Hansen, 35.1 F.3d 263 (6th Cir.
2004). 9. In at least one previous case in the Hartford Immigration Court, Immigration
Judge Straus held that he lacked jurisdiction to conduct a bond hearing for a respondent convicted of an aggravated felony but detained more than six months, based on his interpretation ofiNA § 236(c). Judge Straus's interpretation of INA§ 236(c) was overturned by a federal district court in a habeas proceeding brought by the same respondent Judge Michael Ponsor of U.S. District Court for the District of Massachusetts, Springfield Division, rejected Judge Straus's interpretation of§ 236(c) and ordered DHS to conduct a bond h~ing once the respondent's rempval was not "foreseeable." Bou~guignon, 667 F. Supp. 2d. at 183.
3

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 22 of 46

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.. .· .. .

10. Courts have also found that a resolution ofremoval "in the foreseeable future" is

unlikely when a detainee "vigorously contests the issue of his deportability," raising the

possibility of a lengthy appeals process. Id. at 183; accord Tijani v. Willis, 430 F.3d 1241, 1242

(9th Cir. 2005) (finding that removal was not "expeditious" because of anticipated lengthy

appellate proceedings).
11. Mr. Reid has con~ested his order ofremoval in this Court on the grounds that he is

entitled to deferral of removal under the Convention Against Torture and that removal would be

disproportionate, in violation ofiNA § 240(c)(l)(A). On AprilS, 2013, he timely appealed an

adverse decision from this Court on those claims to the Board of Immigration Appeals. Briefing

by the parties is due to the Board by June 20, 2013, although Mr. Reid has filed a request for an extension. The BIA will either remand for further proceedings or affiJ!ll this Court's decision. If

the latter, Mr. Reid plans to appeal any adverse BIA decision to the U.S. Court ofAppeals for the

Second Circuit, a process that is predictably lengthy. In either event, ·a final resolution of his

I

I

removal pro.ceeding is no.t likely for months or years, and is therefore not reasonably foreseeable.

.I

12. Detention exceeding a "limited period" is unreasonable, in violation of the Fifth

Amendment's Due Process Clause, and thus unauthorized by INA§ 236(c). See Demore v. Kim,

. II

I

538 U.S. 510, 530 (2003); id. at554 (Kennedy, J., concurring).

I

13. Courts throughout the nation have ·ordered bond hearings for individuals detained

I

under§ 236(c) once their detention exceeds the "limited" time frame in Demore and thus

!

becomes unreasonable. See,~ Bourguignon, 667 F. Supp. 2d. at 183; Flores-Powell v.

Chadbourne, 677 F. Supp. 2d. 455 (D. Mass. 2010) (fmding lengthy immigration detention

"unreasonable" and ordering bonding hearing for Respondent); Parlak v. Baker, 374 F.Supp.2d

551 (E.D. Mich. 2005) (fmding detention lasting for eight months unreasonabl~); HippolVte v .

4 .

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 23 of 46

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. I

.. ·

· I .. ......

:: ._.

Enzer, 2007 U.S. Dist. LEXIS 442.05 (D. Conn. June 19, 2007) (finding detention lasting for

fifteen months unreasonable); see also Leslie v. Att'y Gen'l, 678 F.3d 265 (3d Cir. 2012)

(holding that individuals held under§ 236(c) must be afforded bond hearing once detention

becomes unreasonable); Alli v. Decker, 644 F. Supp. 535, 541 (M.D. Pa. 2009) rev'd on other

grounds, 650 F.3d 1007 (3d Cir. 2011) ("If an alien detained pursuant to [8 U.S.C.] § 1226(c)

makes a s,P.owing via a habeas petition that detention is no longer reasonable, the alien must be

afforded a hearing before the habeas court at which the governmel}.t bears the burden of

justifying continued detention based on traditional bail factors ....").
14. in addition, the Excessive Bail Clause of the Eighth Amendment prohibits the

Government from setting conditions of release or detention that are "'excessive' in light of the

perceived evil." United States v. Salerno, 481 U.S. 739 (1987); U.S. Const. amend·VITI. To

avoid constitutional doubt, INA§ 236(c) must be constru~d to require a bond hearing when no

compelling government interest in the detention, other than the prevention offlight, exists and

the length of detention is not limited.

15. Mr. Reid has been detained by ICE for nearly seven months, a period that exceeds

!·

the maximwn length of time INA§ 236 can authorize detention under Rodriguez. In addition,

I

Mr. Reid's pending appeal with the BIA and the l~elihood of either a r~mand ':from the BIA or a

petition for review to the Second Circuit, should the Bia affirm thjs Court's decision, establish

that his removal is not foreseeable. IfMr. Reid is denied bond, his total detention tirD.e will far

surpass the limited period that courts applying Demore have considered reasonable.

14. Following Matter of Patel, ICE should not detain Mr. Reid unless there is a risk

that he will abscond or he poses a danger to persons or property. 15 I. & N. Dec. 666 (BIA

1976).

s

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 24 of 46

... . !

·: :·

15. Mr. Reid is not a flight risk. As testimony and evidence in hiS)removal
proceeding ·demonstrated, he ~as lived in the United States for 35 years and has spent his entire
adult life in Connecticut. His entire family, including his' mother, sister, and two children, are in
the United States.
16. Mr. Reid also does not pose a danger to persons or property. As the record in his removal proceeding establishes, Mr. Reid suffered for many years from drug addiction, and most
ofhis criminal coilVictions are a result of his past addiction. He has been sober now for the years
I.
of his incarceration and he is d~dicated to remaining drug-free. Since his most recent convjction, for which he served two years, he has begun to seek spiritual and psychological counseling for the extensive trauma he suffered as a child, and has committed to making better decisions in the future. See Exhibit B.
17. If this Court denies Mr. Reid's motion for bond redetermination without an opportunity for a hearing, he will be detained in viola~on_ of the INA because INA§ 236 does
not authorize detention exceeding six months, or an otherwise li~ted period of time, without a
bond hearing. He will also suffer ·a deprivation of liberty in violation of the Due Process Clause
ofthe Fifth Amendment and cruel and unusual punishment'in violation.of the Eighth Amendment because he will be uilreasonably detained without a compelling government interest for denying him bond.

6

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 25 of 46
I .

WHEREFORE, Mr. Reid moves this Court to schedule a bond redetermination h~aring
for the earliest date possible.
Respectfully submitted,
()_~ L - -
Linda arts, Law Graduate·Intern . Tassity Johnson, Law Graduate Intern
Travis Silva, Law Graduate Intern MatthewS. Vogel, Law Graduate Intern Muneer I. Ahmad, Supervising Attorney Michael Wishnie, Supervising Attorney Jerome Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520 (203) '432-4800
Counselfor Respondent

'

i
;

.

7

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 26 of 46

;. .

. .. 1 •

LIST OF DOCUMENTS IN SUPPORT OF MOTION FOR BOND REDETERMINATION FOR MARK REID
1. Exhibit A: ICE I-286, Notice of Custody Determination
2. Exhibit B: Letter from Reverend Joshua Mason Pawelek, Unitarian Universalist Society Ea.st

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Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 27 of 46

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. I

UNITED STATES DEPART~NT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT HARTFORD, CONNECTICUT

In the Matter of: MARK REID

A Number: 035 973 579

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of Mr. Reid's Motion for Bond Redetermination, it is HEREBY ORDERED that the motion be_ _ GRANTED DENIED because:

__ DHS does not oppose the motion. __ The respondent does not oppose the motion. _ _ A response to the motion has not been filed with the court.
Good cause has been established for the motion. _ _ The court agrees with the reasons stated in the opposition to the motion.
__ The motion is untimely per-- - - - - - - Other:

Deadlines: _ _ The application(s) for relief must be filed by_ _ _ _ _ _ _ _....,...-_ _ __
__ The respondent must comply with DHS biometrics instructions by _ __ __

Date

Hon. Philip Verrillo

Immigration Judge

Certificate ofService

This document was served by: []Mail

[ ] Personal Service

To: []Alien []Alien c/o Custodial Officer [ ]Alien's Atty/Rep []DRS

Date: - - - - - - -

B y : C o u r t S m f.f_ _ __ __ _ _ _ _ ___

9

Case 3:13-cv-30125-MAP ..··

Document 4-10

File.d..0;7/01/13

Page 28 of 46

CERTIFICATE OF SERVICE
This is to certify that on June·l 0, 2013, I caused a true and correct copy of the foregoing
Motion for Bond Redetermination to be seryed on John P. Marley, counsel for the Department · of Homeland Security via mail at the Trial Attorney Unit, U.S. Department of Homeland Security, A.A. RibicoffFederal Building, Room 483,450 Main Street,.Hartford, CT 06103 .

--·

Tassity Johnson .

.

Jerome N. Frank Legal Services Organization

Yale Law School

P.O. Box 209090 .

New Haven, CT 06520-9090

Counsel for Respondent

10

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 29 of 46
EXHIBITP

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 30 of 46

IMMIGRATION CQURT 450 MAIN ST . , ROOM 628
HARTFORD, CT 06103
JEROME FRANK LEGAL ORGANIZATION . - YALE LAW SCHOOL ·WISHNIE, MICHAEL P.O. BOX 209090 NEW HAVEN, CT 06520
FIL~: A035-973-579
RE: REID I MARK
-· .. . ·~... ...... .. : '· ' : ~.·
NOTICE OF CUSTODY REDETERMINATION HEARING IN IMMIGRATION PROCEEDINGS
PLEASE TAKE NOTE THAT THE ABOVE CAPTIONED CASE HAS BEEN SCHEDULED/RESCHEDULED FOR A CUSTODY REDETERMINATION HEARING BEFORE THE IMMIGRATION COURT ON Jun 13, 2013 AT 2:00 P.M. AT THE FOLLOWING ADDRESS:
450 MAIN ST., ROOM 628 HARTFORD, CT 06103
YOU MAY BE REPRESENTED IN THIS PROCEEDING, AT NO EXPENSE TO THE GOVERNMENT, BY AN ATTORNEY OR OTHER INDIVIDUAL AUTHORIZED AND QUALI}i:J:·ED TO REPRESENT PERSONS BEFORE AN IMMIGRATION COURT. IF YOU WISH TO BE REPRESENTED, YOUR ATTORNEY OR REPRESENTATIVE SHOULD APPEAR WITH YOU AT THIS HEARING.

CERTIFICATION OF SERVICE

THIS DOCUMENT WAS SERVED BY : MAIL (M)

PERSONAL .SERVICE (P)

TO: [ ] ALIEN [ ] ALIEN c/o Custodial Officer [m] ALIEN's ATT/REP [ p} DHS

DATE:

6 . 12 . 13

BY: COURT STAFF .

ss_ _ __ _ _

Attachments: [ ] EOIR-33 [ ] EOIR- 28 [ ] Legal Services List

Other

U7

'

.,l

,, !
'

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 31 of 46
EXHIBITQ

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 32 of 46
..

UNITED STATES DEPARTMENT OF JUSTICE . EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT 450 MAIN ST. I ROOM 628
H~T~ORD, CT 06103

John P. Marley Senior Attorney Chief Counsel DHS-ICE-9CC 450 Main St. Rm 4?3 Hartford, CT 06103

.Date: Jun· 13, 2013

File A035-973-579

In the Matt~r of: REID, MARK

Attached ;i.s· ·a cop~ of · th.e written decisi9n of the Immigration Judge.

This decision is final · ui_lless· an: appeal is taken to the Board bf

Immigration Appeals: The enclosed copies of FORM EOIR 26,

Notice ·of Appea;l., and FoRM ··EOIR 27, No!:ice of Entry a.s Attorney or Representative, properly executed, must be filed with ~he .Bo~rd of

Immigration Appeals · on or befor.e ·.. · ·

.

The appeal must be accompanie~. by _proof ·.qf paid fee ($110 . .00) .

Enclosed is a ~opy of : the 9ral decision.

Enclosed is a transcript of "the test~mony of record.

You are granted · untii

to submit "q br-ief

to t .hi.s office in ~uppdrt. of your appeal. ·

Opposing co~nsel is granted until ---------~-­ to. submit a
brief in. bppositlon .·t9 the appCo!al.

__x___ Enclosed is a copy of the order/decision of the Immig~ation Judge.
IJ'S RULING ON DHS MOriON TO CONTINUE/NEW HEARING NOTICE .
All.papers filed with ·the co4rt shall be accompanied by proof of service upo? oppoa~ng counsel.

~~ncerely,

_ --~---ss ___________________

Immigration Court Clerk

UL

cc: . : JEROME FRANK LEGAL ORG~IZATION YALE LAW SCHOOL

WISHNIE, MICHAEL

P.O. BOX 209090

NEW HAVEN, CT.. 06529 ·

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 33 of 46 "

United States Departm ent of Justice Executive Office for Immigration Review
Immigration Court Hartford, Connecticut

In the Matter of: REID, Mark

A Number: 035 973 579

ORDER OF THE IMMIGRATION JUDGE

Upon consi~S 's motion to continue, it is HEREBY ORDERED that the motion be ~ DENIED because:

DHS does not oppose the motion.

The respondent does not oppose the motion.
. Jr. response to the motion li~s not been filed ~ith the court.

~ood cause has been established f9r the motion. ·

The cowt agrees with the reasons stated in the opposition to the motion.

The motion is untimely per .
Other: f1 Crl\tA ~e-o{BtevMi·l\0\fl~-"'

.
h~llt

V". l\~

I .'J

lut fnv ck~v Deadlines: -')

(11\n~~ r vv-l e_ Ill "21) ( )

t(i\ 1_I( '?:; ~ (\ v'\

The application(s) for relief must be filed by - -- -- - -- - - - - The respondent must comply with DHS biometrics instructions by-...-- - - - -

(}U~ (.. t'1 '1-A t~

. I

Date

l

/.Certific,te of Service

~

This document was served by: [ ] Mail [?Personal Service

To: []Alien []Alien c/o Custodial Officer{YA.Alien's Atty/Rep ] DHS

Date: ~ · I 3 ·1 '.3>

By: Court Staff._~S"'-=!:E::>:;___ _ __ _ _

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 34 of 46
EXHIBITR

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 35 of 46
IMMIGRATION COURT 450 MAIN ST., ROOM 628
HARTFORD I . CT . 06;t.03 .
JEROME FRANK LEGAL ORGANIZATION - YALE LAW SCHOOL WIS~I,\l!, MICHAEL P.O. BOX 209090 NEW HAVEN, CT 06520
FILE : A035-973-579 RE: REID, _M..l\RK
NOTICE OF CUSTODY REDETERMINATION HEARING IN IMMIGRATION PROCEEDINGS
PLEASE TAKE NOTE THAT THE ABOVE CAPTIONED CASE HAS BEEN SCHEDULED/RESCHEDULED FOR A CUSTODY REDETERMINATION HEARING BEFORE THE IMMIGRATION COURT ON Jun 17, 2013 AT 2:30 P :.M. AT THE FOLLOWING ADDRESS:
450 MAIN ST., ROOM 628 HARTFORD, CT 06103 YOU MAY BE REPRESENTED IN THIS PROCEEDING, AT NO EXJ?ENSE TO THE GOVERNMENT, BY AN ATTORNEY OR OTHER INDIVIDUAL AUTHORIZED AND QUAL.IFIED TO REPRESENT PERSONS BEFORE AN IMMIGRATiON COURT. IF YOU WISH TO BE REPJ,rnSENTED, YOUR ATTORNEY OR REPRESENTATIVE SHOULD APPEAR WITH YOU AT THIS HEARING.

CERTIFICATION OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL (M)

PERSONAL SERVICE (P )

TO: [ ) ALIEN [ ) ALIEN c/o Custodial Officer [M 1 ALIEN's ATT/REP [P 1 DHS

DATE:

6. 13 .13

BY: COURT STAFF

SS---~-

Attachments: [ 1 EOIR-33 [ 1 EOIR-28 [ ·] Legal Services List [ 1 Other

U7

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 36 of 46
EXHIBITS

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 37 of 46

-- ..':_· .. ~~

,;tJ
·. , .. ; ''!!;

UNITED STATES DEBARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT HARTFORD, CT
FILE: AOJS-973-579
IN THE MATTER OF:
REID, MARK
RESPONDENT
IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION -TUDGE WITH RESPECT TO CUSTODY

a Request hav~ng ·been ~ade ·for ~liange in t .he custody .st'~tus ·of

respondent pursuant to a ~FR 236.1(c), and full consideration

4aving been. given to the. representations of the Department of

Homeland Security and the respondent, it is hereby

~ re~~st ~ ORDERED that the.
-jS-. denied.

for change in custody status be

-..

ORDERED that the request be granted and that respondent be:

- -·- released from custody . on his own recognizance

. ~.,:·
., ~

r eleased from custody under bond of $

.

J

... .tl.

Ck-.rO!Ivt/At ,·" ~ "-h)€1(,+±c .M"~Att·;;~/vl , OTHER
t+- t INA:. J'\ (?"+·c'rA kl) v".~vi\V\ ~tn

')ecL·AI\ 11~ ('L

Copy of thisl Jecision has beenl served on the respondent and the
l i Department· of Homeland s~urity.

8 h"' f\lY~ ' ~~e~. ~~ 11 APPEAL' waived --
~ HARTFORD - - HARTFORD, CONNECTICUT
,An Date' Jun >7, 2013

/)(A;f;t{

I O

. ., ,. /J/ .

1 ) j !J "'

(/I~

·,

PHILIP VERILLO Immigration Judge
xs

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 38 of 46
I
EXHIBITT

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 39 of 46

October 26, 2012

To Whom it May Concern;

I am writing this letter on behalf of Mark A. Reid. My name is Michelle Turner, and Mark is my daughter's father.

My interest in Mark's remaining in the United States is simply be~ause he has two children: an adult son,

rv4 . .(not my son) and

Both who love their father deeply, and would be devastated if they didn't

have constant access to their father. I write on . behalf, because she doesn't kt")ow her father's

situation. My daughter is the quintessential "Daddy's Girl". Her father has meant everything to her.

And in the beginning of my pregnancy, I almost miscarried. Mark took care of me the whole weekend.

He then went to" work, was chosen by a foreman to attend a state program which trained him in

asbestos removal, and became a supervisor of a crew. Mark was there wh~.n she was born; he babysat

her as I worked and went to graduate school.

They have developed a relationship where they fully understand one another. I kf.IQW fpr ~~rtain that

4 Mark deeply loves

Despite whatever was going on his life, Mark tried to make time for 4Ev~n

4 to when Ma'rk ~orked in rea l estate, he would take

work with him for a few hours on the weekends

to teach her about his job, aRd the va lue of work.

:· ...

·' : ..

Mark has made choices that have disrupted his relationship with ~ I have never told her he was in

prison, and as she has gotten older, .! suspect sb.e has.an idea where he is. But just h:r not b~ing a~le to

-1 oi see him has taken a toll on her. She once expressed she couldn't understand why her father gpes away

and never comes back. While she is an excellent student who has finished 'one New Haven's fi'nest

•

•

•

•

•

0

••

schools, has traveied to China and excelled in sports,

suspect this is because she doesn't understand why her father is ~o onger around. I have neyer

. . taken

her

to

visit

Mark

during.

his

incarceration,

because

I

know

~ou ld

be

~bsolutely .

de~astated.

It

. would

hurt

her

greatly to.s.ee.

him

in

priso n,
.

and

the

fact

that

he..could

not

wa lk
.

out

of ther~

with

h. e r

would shake her to the core.

Again, Mark is a smart man who has made some really terrible choices. I left him during my pregnancy.
oe But I ne~er keP.t my daughter from he~ father. If Mark is dep~rt~d, my'dal!g.hter, who will lG:in three
months, will be ari~ther child without.a Dad. She will not have access to her Dad. I heliev~·,in ·s~cond chances, and t'believe Mark and ~es.erv~. a second chance.to work through 'tt)eir .refati~nship and ~et it back on track. While I pride myself on being·a pretty decent Mom, I can't be her Dad. I can't offer a
male perspective on life nor the gu~dance -that a father can give. And while. I love my daughter infinity times google, the love of-a Dad is something that I can't replace. I sincerely hope that you wiJJ.Iet Mark remain in the United States, so he .can re-establish ties with his children .and gain the oppprtunity to become a solid, productive citizen.

. ~ ..

. I

.- .:;' ...

,.. -

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 40 of 46
EXHIBITU

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 41 of 46

National Personnel Records Center
Military Personnel Records, 9700 Page Avenue St. Louis, Missouri 63132-5100
January 19, 20 J2

MARK REID #141754 C.R.C.I 285 SHAKER RD ENFIELD, CT 06082

RE:

Vctcnm's Name: REID, Marl<

SSN/SN:

Request Number: 1-10411889490

Dear Sir or Madam:

Thank you for contacting the National Personnel Records Center. We are pleased t<> respond to your request by providing tbe enclosed document(s).

Separation documents may include the following information: the type and character of discharge, authority and nnrrati\.·c reason for scpnnrtion, rct:nlis:mcnt eligibility code, and separation program designator/number. If you require a copy of the separation document that does not contain this information, a " de/eteff' copy must be requested from this Center. A seal has been affixed to the separation document to attest to its authenticity.

DO Form 214, Report ofSeparation, is issued when a service member performs active duty or at least 90 or more consecutive days of active duty training. The enclosed separation document wil l verify the veteran's initial period of active duty for training. Because subsequent periods of active duty for training were less than 90 days, no additional separation documents were issued.

If you have questions or comments regarding this response, you may contact us at 314-80 I-0800 or by mail at the address shown in tbe letterhead above. lf you contact us, please reference·the Request Number listed above. [f you are a veteran, or a deceased veteran's next of kin, please consider submitting your future requests online by visiting '.IS al http://velrecs.archives.g,ov.

JONATHAN KNORR Archives Technician ( 1B)

1J We Value Om Veterans' Privacy

'V {iiJb. Let II$ loww ifli'L' lmve

•

foiled to fll'lltt'Ct it.

Enclosme( s)

Natiollolllrchrves l//1(/ Uecords lldlllilli.l'lr<llion hI1fl :1/www.nurn.J,:n1'/regionnl/slin uis.ltlml

Case 3:13-cv-30125-MAP
CAUTION: NOllO BE USEO FOR IDENTIFICATION PURPOSES

Document 4-10
·--

Filed 07/01/13

Page 42 of 46

llBlO Infantryman
00 Yre and 00 Mos.
13. DECORATIONS, MEDAlS. IAOGES, CIIATIONS AND CAMPAIGN RIBBONS AWARDED
MARKSMAN (M- 16) MARKSMAN (HAND GRENADE) A.SR
ll. MiliTARY EDUCATION (Cour7~ Til1c. rtumb~r wuk1, ond moNA and ymr compt.lul)
NA

SERVICE ·2

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 43 of 46

C'f 06Si-i

10. I am enlisting/reenlisting in the Uri~~d :States _A._R_M_._Y_._R.;;..~-~_E._R_V..;.:E. _._________·;·..;·._ ___::;......;..______

this

date

for

_

_ 6 _

__,,y~ .

beprining .~

l

.

pay

ir'ade_

.£-

d

· . The.addi~i.C?nal details ofmy enllst~eniireenllitment are in

Section C and Annex(cs) :_A_,.___·- - - - - ' - - - - - - - - - . . . : . . . - - - - - - - - - - - - - - - -

a. FOR ENLIST~NT IN A DELAYED ENTRY/ENLISTMENT PROGRAM (DEP), I understand

that I wiU be .orde~Ci to activ~ duty as a Reservist unless I report to the place shown in item·.6 above ·by.

---------=-..,....,.-.,...-------- tUm• an~ elate)

for enlistment in the Regular Component of the United States

my tq-uiunm-ad-elei-fri.issct,aaN.tni.odOn.'fs-., -capo-neu-drni:otl-ceded-eo.pft,otmi.wmy.ae.rride-n.c'-trf-huue-liftD-eilr:lEm-iPne~f'nioSftr.c·.moro~e.efndd·pimttoayblfelmasensif.yloti.trhcaaphcnaayyngspeeursr\!piincoesaeonysbeyualpiprgosh.anytMsieoincynlailseotonrmlriecsdnotemtmpoeemnnntdaitceimntnicvetynehetdstu.DaItty,Emu.sPIu,asmitlssomoirn1aa.lai!n-qnntudaoaeinrnlsiptfaamincydyasttithcoauantrtusrts,he.oni1srt
mailing address.

ASSNEELRYEV.bTc.C.IHCTRTEleIhlVmjefEaAarEglCcrsSeTt:eV.!m(CI'ef·MAnnStYoNsYn.Yie.SNn,OAT,5t~hE~NIiMssEEt,saeHtFee·.At.bS:)i'RaSSntTl.Pfa.RH,nRQ'IEOSO~GMAh'eIFSITOaS~TtREtR!Ml'DOcAhFTeMRdIO.BE•EaTnGNInR/I~eSITxNNTH(eFEOsO)RTA.aRSNreVMD-A·aMAlLEAlTIDtIhDODUeNNRApDEr'NoESRmDRSEiPsWeOMTs RIHAmL.EYTaLdINeMNBGEtOIoLTmISRTBeEEAENQbRyTUHYtIhORTeENSOGMOEoETvLRHeNEErETnCDmST.e•InVt.E

D(/nGi&b Gteaus~eet.R.cc;ntls~ . .

• .,

.

· .

aT1tin1hm.deeyr.eFeqxuOpirl~aei.mnLseoLtmoEedNooftLthhIineSgTpsrEeasE.ceSinvtiQl~iawRnsd~aaEf.efNse.·cLnt·aiIntSghTtahvEeeEAtSor.:md-oed. TMFhoaern~ceoy_llslawowwhsi,icnrhgegsItucalataentminoaentns,ctsh¥:aadrn.egm.ne oibltiutpatrrwoymhciiucssh~tsoC.moo.(ns.ggwruia~llrsagncoatveneercsnhoma~nayg.cneoyanltcdia.Jun),dcy.t

.

.

.

a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will

be:

0

10'

'

•

(1) Required to obey all lawful orders ~d perform aU assigned duties.

(2) standards, I

mSauybjbeectd.tioschseaprgaerdatiaonnd·dguivriennga·ocrearttiftihceateenfdorolfesms ytheannlihstomneonrta.bIlef

tunities and my claim for veteran's bepefits.

my behavior fails to mee; ~~ptable military

service, which may hurt my future job oppor-

·

· ·

(3) Subject to the military justice system, which means, among other things, that I may pe tried by ~litary courts-

martial.

(4) Required upon order to serve in combat or other hazardous situations.

DO Form 82 FES

T H IS 00 FORMS

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 44 of 46

GUARANTEES MADE TO ME BY ANYONE ARE WRITTEN BELOW:

't: (If none, check "NONE" and initial.) rtf NONE tfl ...f}

1l4ai. iiiliiliill REID

LISTEE

14b. SIGNATU OF APPUCANT/REENLISTEE

wf1o5ir.tmnesOasnneddbitenhhetahsleifgoanftattatuhcerheeUdinnAiitteendmneSx1t(4aebtse)tsowthilAilsRbdeMohcYounmoernetd.,IacnedrtiafynythoatthIehrapvreoemxipsleasinmeda, dItehaacbtcyoeapnntlyythtphiesorsseoanglarirceeaenmntoetfnoetrsffieennctlSiivsetecmtaieonnndt.BwIoi lfhl tanhvoiest

be honored.

NED

16a. FOR SERVICE IN THE ARMED FORCES EXCEPT THE NATIONAL GUARD (ARMY OR AIR):

I )
'

l,

MARl( ANTHONY

defend the Constitution of the

the same:; and that I will obey

according to regulations and

REID
United States the orders of

against all enemies, the President of the

,
foreign United

do solemnly swear (or affirm) that I will support and and domestic; that J will bear true faith and allegiance to States and the orders of the officers appointed over me,

the Uniform Code of Military Justice. So help me God.

16b. FOR ENLISTMENT OR REENLISTMENT IN THE NATIONAL GUARD (ARMY OR AIR):
I, - - - - - - - - - -- - - - -- - - - - - - - · do solemnly swear (or affirm) that I will support and

defend foreign

the Constitution of and domestic; that

the United States and the State of I ~ill bear true faith and allegiance

to

the

same;

and

that

I

will

obey

the

against orders of the

all enemies, President of

the me,

United States and the according to law and

Governor of - - - - - - - - : - -regulations. So help me God.

- - - - and the orders of the officers appointed over

J6c. 1 acknowledge that the oath above, as filled in, has been administered to me and that I have sworn (or affirmed) to the

KATHLEEN C CHEW CDR USN NEW HAVEN CT MEPS

04 f.tP R fl :;

16i. FOR ENLISTMENT OR REENLISTM ENT IN THE NATIONAL GUARD (ARMY. OR AIR):

1 do hereby acknowledge to have voluntarily ~nlisted (reenlisted) this _ _ _ day of _ _ _ J9_ _ in the _ _ __

National Guard of the State of - - - - - - -- - - - - - - - - -- - and as a Reserve of the United States

_

_

_

_

_

_

_

_ __ with membership in the _ __

_

National Guard of the United States for a period of_ __ yoar~

-

-

-

-

--"'Onl/15

-

-

-

-

--
auys

u

n

d

e

r

the

conditions

prescribed

by

law,

unless

sooner

discharged

by

proper

authority.

DD 4/2 Form 82 FEB

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 45 of 46

U.S. ARD;MEP·.9YA7R0RTE0M.SEEP'NARTGVEEOBPr fO.RTUHSLOEERVNAARREMDLY CENTER
· sr. LOUIS, MO 63132-5260

!

DARP-PAT-R(Nl} . ORDERS D-03-0~5255

i

28 MAR 90

REID MARK ANTHONY

j

49 WAVERLY

I
I

NEW HAVEN CT 06511

I

.,!

----·PV2 PAT-R(Nl)

ANNUAL TRAINING

YOU ARE DISCHARGED FROM COMPONENT SHOWN.

!. !
I • I

AEATCGYL6lYISNYFOFUObODEO3NF~PUNUT1DEEGPRYYREHT3ICORTOOEHO2NUAROITUMAF.ROERFlLUTIINNVHTLMLTAYEDIALPSAYTA:LV:OIESOASIEDRNUNSCRRAIRYVTSAHYNEATOAEMIAAACSNEURSIDERNYTR:ESES,YERGSECNI·OD1QUOEDRsR3No·A:RUCV3E5COLOB,TEIS'HO-YICMSSIE1AAOONRfERl7.NELGPNfNTC,V.8TORHEQAISEUSRRINNECS:LTRAOSENRBNICHDB1FLATUAEIEN9EARPVITT9AClREPlO0RT~ETOTHYSNTASMEOENT,IRTHYENV'INTEF9UVEU.T7MMHETN0IBILUS0ILAOEDYRIRFTTEEHPIAOANETAARNGHAANNTYAEEBDDDIFLOQIUBSAQACUTPTORUAAlEAMUIlRTRCYLTYTISKOEPUO.EOUVLRRSNNRYAE,SNRRV, HO0EEYIIOM0LOD.AltlUUE.TEIFMRRSTTSNOENTABRTCER:S.RMIOREEFYRCORLID2OEAVOTAOSRRDRIUCEDC.ICElCSI-SRNSOE,EMCRNANDLD1R.TU1U)SEE0MDRBOlEN,SERORS,

FORMAT: 50.0

. II

*~+l(t++>i<~\1<¥++>:<+1!• ARPERCEN .o<

I' .

~***•Ol(FcF*"I"C*I*

At l(c~.,~·

¥
**

THOMAS J. KILMARTIN
BRIGAOIE-R:JGE~ERAL,

USA

COMMAND 1Nu · ··

t··

OlSTR1BUrlON: H5

: ...

I I
I I t
t

''SUBJECT BE~-·ING DISCHARGEr
IS NOT PRESENT FOR DUll'·.

A,LTHOUGH A-SSIGNED ·ro DISCH.A~G£ CERTIFICATE

THIS ~GAN-I.'Z.A. T.IONI
AND DISCHAR~ ORDERS

!
I

I
I

ARE BEING fMILED TO LAST KNOWN ADDRESS THIS

DATE, _ ·_3 May~l9_90...:· __ ____;

I

,. "·

Case 3:13-cv-30125-MAP Document 4-10 Filed 07/01/13 Page 46 of 46

Certification of Military Service
Department of Veterans Affairs Records Management Center St. Louis Missouri
This certifies that
Mark A. Reid
Date of Birth: April 4, 1984
was a member of the United States
An11y

Under Service Number

Entered Active Duty on April 17, 1984

. Discharged on July 19,1984

Received a(n)

Honorable

Discharge

Last Grade, Rank, or Rating: Private First Class

Given at St. Louis, Missouri on

(-m~&<trL_1ftiEELN;~<TtM;;E.

!d;;;j!Jj--
Shalotta Wright

Title Administrative Supp011 Assistant

Division - Director's Office

VA Records Management Center

11lis

This c~n tlocumcnc

lflcncion ofMIIic:uy Service serves :ts verilicucion of mili

is ta

i~sucd inchc absence ry service and rnl)' he

11f~ copy ofchc :.ccuullkpon usctl for ttn)' officialpttrpt>sc.

of'ScJl~nuion or ics cquivulcn c. Noc ,·nlid \\'ilhoul oiTieinl sign:nurc.

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARK ANTHONY REID, on behalf of himself and others similarly situated,
Plaintiff/Petitioner
v.
CHRISTOPHER DONELAN, Sheriff of Franklin County, et. al.
Defendants/Respondents

) ) ) ) ) ) ) C.A. NO. 13-cv-30125-MAP ) ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 1 & 77) March 6, 2014
PONSOR, U.S.D.J. I. INTRODUCTION
Plaintiff has brought a class action on behalf of all individuals in Massachusetts who are detained pursuant to 8 U.S.C. § 1226(c) for over six months and are not provided an individualized bond hearing. Tangential to that central dispute, Plaintiff has brought a Motion for Summary Judgment, (Dkt. No. 1), solely on his own behalf, seeking a permanent injunction prohibiting Defendants from shackling

him during immigration proceedings absent an individualized determination that such restraint is necessary. Defendants have responded with a Cross-Motion for Summary Judgment. (Dkt. No. 77.)
On January 16, 2014, counsel appeared for argument, and the court took under advisement the question of whether a permanent injunction covering shackling of Plaintiff at any future hearings should issue. Though Immigrations & Customs Enforcement (ICE) agreed to conduct an individualized determination of need before shackling Plaintiff at a February 3, 2014, immigration hearing, the parties disputed whether due process permitted ICE, as opposed to an Immigration Judge, to make this assessment.
This decision set forth in this memorandum is not intended to address the issue of shackling as applied to any class of detainee-aliens. Unlike the question of whether detainee aliens are entitled to an individualized bond hearing after six months of detention, the question of shackling is not posed as a class action. Instead, Plaintiff only seeks an order applying to possible future shackling ICE might impose on him.
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The court, for the reasons set forth below, will deny Plaintiff’s motion for summary judgment and allow Defendants’ motion. Although, as a general matter, due process does require some type of an individualized assessment before a detained alien may be shackled at a hearing, Plaintiff has obtained the remedy due process mandates. He has also been recently released from custody, (Dkt. No. 98 at 2), which removes the possibility that he will be subjected to the challenged shackling policy in the future. He therefore cannot establish potential irreparable harm to himself warranting a permanent injunction.
II. BACKGROUND1 This litigation centers on a question of statutory interpretation: does § 1226(c) impose a “reasonableness” limit on the length of time an individual may be detained absent a bond hearing. On January 9, 2014, the court answered that question affirmatively and granted Plaintiff’s individual Petition for Habeas Corpus. Reid v. Donelan, –F. Supp. 2d--, 2014 WL 105026 (D. Mass. Jan. 9, 2014).
1 The facts are drawn, unless otherwise noted, from Plaintiff’s Statement of Undisputed Facts, (Dkt. No. 7), and Defendants’ Cross-Motion for Summary Judgment, (Dkt. No. 77).
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Following that, on February 10, 2014, the court determined that class treatment was appropriate and allowed Plaintiff’s Motion for Class Certification. Reid v. Donelan, –- F.R.D. –-, 2014 WL 545144 (D. Mass. Feb. 10, 2014).
The current motions before the court, as noted above, focus on a peripheral issue: whether Defendants can shackle Plaintiff at immigration hearings without first making a particularized determination that shackling is necessary to ensure courtroom safety. The facts bearing on this separate question are as follows.
Plaintiff’s first immigration proceeding occurred at the Hartford, Connecticut, Immigration Court on February 13, 2013. Throughout that entire hearing, Plaintiff was unshackled. On April 5, 2013, the Immigration Judge rejected both of Plaintiff’s arguments against deportation and ordered him removed. Plaintiff filed a timely Notice of Appeal with the Board of Immigration Appeals (BIA).
While that appeal with the BIA was pending, Plaintiff filed a motion with the immigration court on June 10, 2013, requesting a bond re-determination hearing. That motion was heard before an Immigration Judge on June 17, 2013. At that
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hearing, Plaintiff’s hands, waist, and feet were shackled. Although Plaintiff’s counsel objected to the shackling, ICE asserted that it was solely responsible for determining whether Plaintiff would be restrained and that the Immigration Judge did not have the authority to order the shackles removed. The Immigration Judge agreed with ICE and kept Plaintiff shackled throughout the hearing.
At that time, ICE was relying on a policy adopted in November 2012. It provided for automatic, full restraint of all detainees during immigration proceedings without any individualized assessment of risk, unless the detainee was obviously pregnant, had a physical disability, or had injuries that could be aggravated by standard handcuffing procedures.
As a result of the shackling, Plaintiff experienced a number of serious problems at his hearing. He had difficulty writing notes for himself and to his counsel; he was only able to write one sentence. Plaintiff also had trouble managing his glasses, which counsel had to place on Plaintiff’s face and later return to Plaintiff’s pocket.
Plaintiff thereafter filed a Motion for Summary
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Judgment with this court, (Dkt. No. 1), seeking an order precluding such shackling absent an individualized inquiry. Defendants responded with their first Motion to Dismiss. (Dkt. No. 35.) In their view at that time, since Plaintiff had no pending immigration hearings, his claim was moot.
On October 23, 2013, the BIA reversed the Immigration Judge’s decision and remanded the case for further proceedings relating to Plaintiff’s Convention Against Torture (CAT) claim. An evidentiary hearing was scheduled for November 19, 2013. Given the pending date, Plaintiff moved for an emergency hearing in this court seeking a determination on the shackling issue. Defendants, in response, notified the court that they had updated their shackling policy. The new policy, enacted in October 2013, provided for individualized assessments before detainees at immigration hearings would be restrained. These individualized assessments, however, would be conducted by representatives of ICE and not by the Immigration Judge.
The court heard an initial argument on the shackling issue on November 18, 2013. Recognizing that the new policy was an improvement, Plaintiff nevertheless insisted that a
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neutral arbiter, the Immigration Judge, and not an ICE officer was the proper party to make the individualized assessment to comply with the requirements of due process. Satisfied that Defendants’ new policy provided Plaintiff a sufficient individualized determination, at least in the immediate circumstances, the court denied Plaintiff’s emergency motion and permitted ICE to make the assessment but reserved the broader issue respecting the constitutionality of Defendants’ policy. (Dkt. No. 63.)
At the November 18 hearing, Defendants indicated that they had already conducted the assessment of Plaintiff and concluded that he posed a safety risk.2 Plaintiff was thus shackled at the November 19 evidentiary proceeding at the immigration court.
On November 27, 2013, Plaintiff filed a Motion to Compel Discovery, (Dkt. No. 71), requesting, among other things, a copy of Defendants’ new October 2013 shackling
2 Defendants relied, in part, on Plaintiff’s significant criminal history. Since 1986, Plaintiff has been convicted of, inter alia: narcotics possession, larceny, a misdemeanor assault, carrying a dangerous weapon, interfering with an officer, failure to appear, driving with a suspended license, selling an illegal drug, and third degree burglary.
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policy. However, on December 6, 2013, the ground shifted once more when Defendants notified the court that they had reverted to their prior, November 2012 policy. According to Defendants, a number of Immigration Judges expressed concerns about the October 2013 policy, and it was therefore placed on hold pending further review. In response, ICE returned to its blanket, national policy of restraining, without any individual assessment of risk, all aliendetainees, with only very narrow exceptions, during immigration hearings.
As a result of this change, Defendants moved to withdraw their prior response and requested additional time to respond to Plaintiff’s Motion for Summary Judgment. (Dkt. No. 74.) The court allowed the motion and provided Defendants an additional opportunity to respond.
On January 3, 2014, Defendants filed a Motion to Dismiss on standing grounds and a Cross-Motion for Summary Judgment on the merits. (Dkt. No. 77.) On January 14, 2014, Defendants withdrew the Motion to Dismiss because Plaintiff’s individualized bond hearing before an Immigration Judge, as ordered by this court on January 9,
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2014, had been scheduled for February 3, 2014. The court heard argument on the cross-motions for
summary judgment on January 16, 2014. Near the end of the hearing, Defendants’ counsel represented to the court that, despite the national, blanket policy of shackling, ICE would conduct a second individualized analysis to determine whether Plaintiff should be restrained at the February 3, 2014, hearing. As a result of that proffer, the court denied Plaintiff’s motion with respect to the upcoming hearing, but took the broader issue of Plaintiff’s potential future shackling under advisement.
At the February 3, 2014, hearing, Plaintiff was fully shackled. Nonetheless, the Immigration Judge granted Plaintiff’s request for bond and set various conditions of release. (Dkt. No. 91.) Plaintiff has informed the court that he posted bond, and is therefore no longer in custody. (Dkt. No. 98 at 2.)
III. DISCUSSION Summary judgment is appropriate when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
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court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences from those facts in that party’s favor. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir. 2004). In the absence of a dispute over a genuine issue of material fact, summary judgment is appropriate. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997).
In addition to actual success on the merits, a plaintiff seeking a permanent injunction must establish: (1) irreparable harm; (2) the absence of an adequate remedy at law; (3) a balance of hardship favoring the plaintiff; and (4) an absence of detriment to the public interest. Esso Standard Oil Co. v. Lopez-Freyes, 522 F.3d 136, 148 (1st Cir. 2008), citing eBay v. MercExchange, LLC, 547 U.S. 388, 391 (2006). A. Success on the Merits
As the ICE policy currently stands, all immigration detainees across the country -- except in narrowly defined exceptional cases -- are shackled at immigration hearings without any individual assessment of the risk they may pose. Plaintiff contends that this policy violates his
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constitutional rights and seeks judgment as a matter of law. (Dkt. No. 1.) He requests a permanent injunction “ordering Defendants to unshackle him during future proceedings in immigration court, absent a constitutionally adequate individualized finding of dangerousness.” (Dkt. No. 82 at 14-15.)
Though the parties spend significant effort disputing the constitutionality of Defendants’ broad policy, Plaintiff only seeks individual relief. As such, the question before the court is solely whether Defendants’ policy, as applied to Plaintiff, is unconstitutional. To succeed on such a claim on procedural due process grounds, a plaintiff “must identify a protected liberty or property interest and allege that the defendants, acting under color of state law, deprived [him] of that interest without constitutionally adequate process.” Gonzalez-Droz v. Gonalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011), citing Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006). To determine what constitutes “adequate” process, Plaintiff contends that the court should employ the balancing test provided in Matthews v. Eldridge. 424 U.S. 319, 335 (1976).
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Defendants dispute that the Matthews formulation applies in the immigration context. Instead, Defendants, citing Saakian v. I.N.S., 252 F.3d 21, 24-25 (1st Cir. 2001), argue that Plaintiff can only bring a due process claim if he can establish prejudice by pointing to some way in which the outcome of his immigration proceedings was affected by the shackling. Since the first incident of shackling did not occur until after the Immigration Judge made his initial decision to order Plaintiff removed, Defendants contend, it is impossible for Plaintiff to demonstrate prejudice.
Defendants’ contention fails to distinguish between a challenge to the outcome of an immigration hearing and a preemptive objection to a procedure before the hearing takes place. Indeed, the Saakian case and the cases it relies on all unfold in the same context: a petitioner argues that a due process violation negatively affected his or her immigration case. Saakian, 252 F.3d at 24-25 (arguing that the failure of the Immigration Judge to reopen his case to argue ineffective assistance of counsel was a due process violation); see also Hernandez v. Reno, 238 F.3d
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50 (1st Cir. 2001)(arguing that the ineffective assistance of counsel prejudiced plaintiff’s immigration case); BernalVallejo v. INS, 195 F.3d 56 (1st Cir. 1999)(same). The prejudice requirement, like the harmless error doctrine often applied in criminal appeals, makes sense in that context: It prevents the needless remanding of a case that will be resolved identically even when the procedural infirmity is remedied.
Plaintiff’s complaint here is of a different nature. Plaintiff is not arguing in this forum that the Immigration Judge’s decision respecting removal was incorrect.3 He is certainly not contending that the shackling led to the removal decision. He does not even argue that shackling itself was per se unconstitutional. Plaintiff merely maintains that the restraint imposed by shackling infringes on his liberty interest and that the government may only curtail such a right after enacting appropriate safeguards. As another court has aptly said with regard to an identical challenge, “The premise that a due process violation is not grounds for reversal absent a showing of that degree of
3 The Immigration Judge’s order to remove Plaintiff is currently before the BIA.
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prejudice has no bearing on a plaintiff’s right to seek to enjoin due process violations from occurring in the first instance.” De Abadia-Peixoto v. U.S. Dep’t of Homeland Sec., 277 F.R.D. 572, 575 (N.D. Cal. 2011)(emphasis in original).
In sum, it makes little sense to apply the prejudice requirement as framed by Defendants, and, moreover, the case law cited by Defendants is distinguishable. The court’s analysis will therefore proceed along the familiar lines established in Matthews. This approach requires the court to balance the individual’s interests, the risk of an erroneous deprivation of those interests, and the government’s interests. Matthews, 424 U.S. at 335.
1. Plaintiff’s Interests Plaintiff’s interests have been identified, at least to an extent, in Supreme Court precedent addressing shackling in the criminal context. Deck v. Mo., 544 U.S. 622 (2005). Though the Deck case does not imbricate perfectly with the pending dispute, it does provide guidance. In that case, the Supreme Court justified a presumption against shackling a defendant in front of a jury in the criminal context for
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three primary reasons. Id. at 630-31. First, shackling
undermined the presumption of innocence as it “suggests to
the jury that the justice system itself sees a need to
separate a defendant from the community at large.” Id. at
631 (internal quotation marks and citations omitted).
Second, it diminished the defendant’s right to counsel since
shackles “can interfere with a defendant’s ability to
participate in his own defense, say, by freely choosing
whether to take the witness stand on his own behalf.” Id.
Finally, shackling undermined the judicial objective of
preserving the dignified and respectful treatment of
defendants. Id.
The factor most clearly present in the immigration
context, and the one bearing most heavily in Plaintiff’s
favor, is the detainee’s interest in the preservation of his or her dignity.4 The presumption against shackling has its
roots in the common law, where one of the primary
4 The second reason provided by the Supreme Court –- an individual’s ability to assist his or her counsel –- is also implicated here. As evidenced by Plaintiff’s inability to take notes during his immigration proceeding, restraints can restrict an individual’s practical ability to work with his or her attorney. This interest, however, though more than minimal, is insubstantial in comparison with Plaintiff’s dignity interest.
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justifications for eschewing mandatory shackling was respect for the humanity of every individual. See, People v. Harrington, 42 Cal. 165, 167-68 (1871); see also Illionis v. Allen, 397 U.S. 337, 344 (1970)(“[N]o person should be tried while shackled . . . except as a last resort.”); U.S. v. Brantley, 342 Fed App’x 762, 770 (3d Cir. 2009)(“A declaration of “no unfair prejudice” . . . cannot cure the injury that results to the decorum of the courtroom or the dignity of the individual if restraints are not actually necessary.); Joan M. Kauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U.L.J. 351, 351-54 (1970-71).
It cannot seriously be argued that a detainee such as Plaintiff has any diminished dignity interest at an immigration proceeding. It is just as dehumanizing -- and, no doubt, demoralizing -- to shackle a detainee in an immigration court as it would be to shackle him in a criminal court. To deny or minimize an individual’s dignity in an immigration proceeding, or to treat this essential attribute of human worth as anything less than fundamental simply because an immigration proceeding is titularly civil,
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would be an affront to due process and entirely inconsistent with the values underlying Deck.
In reaching this conclusion, the court is not suggesting that no one may ever be shackled. Under appropriate circumstances, an individual may, in fact, be shackled, even in a criminal courtroom in the presence of a jury and, of course, also in an immigration proceeding. Recognition of the dignity interest at play in the shackling decision merely means that this very important consideration must be balanced against the remaining Matthews factors to determine whether automatic shackling, absent an individualized determination, violates Plaintiff’s right to due process and warrants correction.
2. Government’s Interests Balanced against Plaintiff’s dignity interest is the government’s compelling interest in courtroom safety. The Deck court explicitly recognized that courtroom security constituted an “essential state interest.” Deck, 544 U.S. at 629. The government has provided examples of some of the unique safety concerns present at the immigration court in
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Hartford, Connecticut, where the proceedings related to Plaintiff were conducted. These include: limited officers on the floor where the immigration court is located; the logistical requirements of escorting detainees through multiple floors and public hallways; public waiting areas the detainees are escorted through; the different stationing of officers creating potential difficulties in responding to an emergency; and the public nature of the immigration proceedings. (McCaffrey Decl., Dkt. No. 77, Ex. 1.) Particularly notable is that the Immigration Judges in Hartford themselves requested that ICE place its modified 2013 policy of individualized determinations on hold because of safety concerns they had. (Tr. of Mot. Hr’g at p. 11, Dkt. No. 88.)(“[T]here was a decision made to withdraw that [November 2013] policy because concerns were made by immigration judges about the implementation.”) Viewed collectively, Defendants point out, legitimate safety risks are present in the Hartford facility and must be taken into account.
The court respects these concerns. It is sometimes very hard to gauge potential risk, and serious problems,
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even violence, can erupt suddenly and without warning from a
seemingly low-risk case. These safety considerations,
however, do not provide Defendants unlimited authority, nor
do they justify ignoring Plaintiff’s dignity interest. As
the Deck court emphasized, these concerns about potential
risk necessarily require “individualized security
determinations.” Deck, 544 U.S. at 632. Balanced against
one another, some type of individual determination is
essential to avoid any unnecessary infringement of
Plaintiff’s dignity interest while still protecting the
public’s safety. The form of such an individual assessment,
as applied to this Plaintiff, becomes clear after examining
the final Matthews factor.5
3. Alternate Procedures and Risk to Plaintiff
The final factor requires the court to balance the
additional procedures requested and the risk, absent such
5 The proper balance between a plaintiff’s dignity interest and security concerns was intelligently addressed in the settlement agreement in Abadia-Peixoto v. U.S. Dep’t of Homeland Sec., 227 F.R.D. 572 (N.D. Cal. 2011). That agreement contemplates an individual assessment prior to shackling during immigration hearings for all detainees at the San Francisco Immigration Court. (Dkt. No. 90.) This settlement agreement illustrates the plausibility of balancing security interests while still respecting an individual’s dignity.
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safeguards, of an erroneous deprivation of a detainee’s due process interest. Plaintiff contends that due process demands that an independent Immigration Judge conduct the individualized determination. Defendants maintain their position that no individualized assessment is necessary, whether conducted by an Immigration Judge, ICE, or anyone else.
The facts of this specific case present difficulties for Plaintiff. He has a significant criminal history, including convictions for violent offenses and even for interference with an officer. Defendants have also pointed to disturbing behavior on Plaintiff’s part during his detention, including fighting with other inmates.
Plaintiff for his part points to his good behavior during his initial immigration hearings. At those proceedings, he was unshackled and yet no security issue arose. Those hearings, he contends, establish his ability to maintain decorum absent any restraints.
Based on these conflicting arguments, the determination of whether Plaintiff’s shackling is required to ensure public safety is a question over which reasonable minds
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could disagree. This court does not fault the recent decision by ICE, after an individual assessment, that restraint was required at Plaintiff’s February 3, 2014 hearing.
The problem is that under the current blanket policy, no question exists –- Plaintiff would always be restrained. Although the risk of erroneous deprivation may be less troubling in this case than in others, it is still present. Through an individualized assessment, a reasonable person, given Plaintiff’s prior comportment at immigration court, could conclude that Plaintiff did not need to be shackled. This risk, coupled with Plaintiff’s dignity interest, justifies some form of individual assessment on any future hearing.
The question then becomes whether ICE’s individual analysis respecting Plaintiff is constitutionally sufficient, or whether an Immigration Judge, and not ICE, must consider any risk that Plaintiff may pose at a future hearing. On the facts before the court, the likelihood that ICE would decide that Plaintiff should be shackled while the Immigration Judge would conclude otherwise is negligible.
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In other words, if ICE determined that shackling were
appropriate, it is extraordinarily unlikely that an
Immigration Judge, given Plaintiff’s extensive criminal
history, would reject or overrule that recommendation. This
is particularly true since it was Immigration Judges
themselves, or at least some of them, who expressed concern
about the October 2013 individualized policy. Although an
impartial decision-maker may be necessary in some cases as
an element of due process, the court cannot conceive of
circumstances under which an Immigration Judge, in this
case, would disregard ICE’s opinion. An independent
decision by the Immigration Judge may be advisable but is not constitutionally required as regards to this Plaintiff.6
After balancing all of the Matthews factors, the court
must conclude that an individual assessment is required
before a detainee may be shackled during immigration
6 This conclusion is limited solely to this Plaintiff. Although the court believes, based on a number of individual factors discussed, that the distinction between an assessment conducted by an Immigration Judge and ICE in this instance is meaningless, the decision may not be applicable to other detainees. There may well be a case where due process requires that the shackling assessment be made by the independent judicial officer, the Immigration Judge, and not by ICE.
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proceedings. Plaintiff’s strong dignity interest and the risk of erroneous deprivation of his due process rights make this determination inevitable. However, when compared with ICE’s significant safety concerns, and the fact that ICE and the Immigration Judge would undoubtedly arrive at the same conclusion in this case, Plaintiff’s due process rights are satisfied when this individual assessment is made by ICE. B. Irreparable Harm
In addition to examining the merits, the court must look carefully at the issue of potential irreparable harm to determine whether issuance of a permanent injunction is appropriate. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 13 (1st Cir. 2000)(“Irreparable harm is an essential prerequisite for a grant of injunctive relief.”)(citation omitted). Although, as the discussion above makes clear, the possibility that Plaintiff may be shackled without any individual assessment of risk does raise substantial due process concerns, the absence of any irreparable harm here is fatal to his request for a permanent injunction.
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The key, obvious consideration is that Plaintiff has already received the remedy that the court has found due process requires on the facts of this case. ICE, for the November 2013 and February 2014 hearings, conducted an individual analysis of Plaintiff, and it determined that shackling was necessary. Plaintiff cannot show any harm, let alone irreparable harm, when an injunction would merely order a remedy Plaintiff has already obtained.
Furthermore, Plaintiff cannot show any risk of a concrete, future injury subjecting him to irreparable harm. See Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). No immigration hearing is pending, nor is it inevitable that Plaintiff will ever be in immigration court again. More importantly, now that Plaintiff has been released on bail, he is no longer part of the class of detainee-aliens subject to Defendant’s blanket shackling policy. In this context, Plaintiff simply cannot demonstrate that, absent court action, he will suffer irreparable harm.7 Id.
7 The court has not addressed the two remaining equitable factors -- balance of harm and public interest -since the absence of irreparable harm eliminates any justification for a permanent injunction.
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IV. CONCLUSION In general, due process requires an individualized assessment of the risk posed by an alien detainee before he or she may be shackled during an immigration proceeding. Given the facts of record, it is not necessary for the court to address the question of whether this assessment must always be made by an Immigration Judge rather than an ICE official. The fact that the evaluation was made by an ICE official in this case does not entitle Plaintiff to permanent injunctive relief, since ICE’s individual assessment was enough, here, to satisfy due process. The coup de grâce to any claim for permanent injunctive relief for Plaintiff on the shackling issue is the recently emerged fact that he is no longer detained and therefore faces no future risk of shackling under the challenged policy. Thus, since Plaintiff cannot show irreparable harm absent a permanent injunction, Plaintiff’s Motion for Summary Judgment on the shackling issue (Dkt. No. 1) is hereby DENIED, and Defendants’ Cross-Motion for Summary Judgment on this issue (Dkt. No. 77) is hereby ALLOWED.
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The case will continue on the broader issue relating to individual bond hearings that are defined in the class certification.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
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 </s> Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARK ANTHONY REID, on behalf of himself and others similarly situated,
Plaintiff,
v.
CHRISTOPHER DONELAN, Sheriff of Franklin County, et al.,
Defendants.

) ) ) ) ) ) C.A. NO. 13-cv-30125-MAP ) ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ MOTION FOR ENFORCEMENT OR MODIFICATION OF CLASS
CERTIFICATION ORDER AND FOR LIMITED DISCOVERY (Dkt. No. 144)
December 10, 2014
PONSOR, U.S.D.J.
I. INTRODUCTION Plaintiff,1 an alien and lawful permanent resident who
was detained without the right to seek release pending
deportation, brought a class action on behalf of himself and
all similarly situated persons held in custody for longer
than six months within the Commonwealth of Massachusetts by

1 The class is represented by a single person, Mark Anthony Reid, who stands in the shoes of all others similarly situated. For purposes of clarity, the court refers to “Plaintiff” in the singular throughout this memorandum.

Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 2 of 28
Immigration and Customs Enforcement (“ICE”) pursuant to 8 U.S.C. § 1226(c). The court has previously granted individual habeas relief, certified the class, and granted summary judgment allowing class-wide relief and ordering Defendants to give notice to class members of their entitlement to bond hearings after six months. See Reid v. Donelan, 991 F. Supp. 2d 275 (D. Mass. 2014)(“Reid I”)(granting habeas relief); Reid v. Donelan, 297 F.R.D. 185 (D. Mass. 2014)(“Reid II”)(certifying class); Reid v. Donelan, -- F. Supp. 2d --, 2014 WL 2199780 (D. Mass. May 27, 2014)(“Reid III”)(granting summary judgment).
Some disagreements have arisen regarding the interpretation of the court’s remedial order. Plaintiff has moved to enforce the order to the extent that it requires Defendants to provide individualized bond hearings and notice to all individuals held under 8 U.S.C. § 1226(c). Insofar as some ambiguity exists regarding who exactly these individuals are, Plaintiff has moved, in the alternative, to modify the language of the class certification order so that it provides relief to the class as Plaintiff construes it. Plaintiff has also moved for limited discovery to identify
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 3 of 28
class members who may be entitled to relief but who have not yet been disclosed by Defendants. Lastly, Plaintiff has moved for an order requiring Defendants to notify class counsel of the date and time when a class member’s bond hearing is scheduled. For the reasons set forth below, the court will substantially allow Plaintiff’s motion, denying for now only some aspects of the requested relief.
II. BACKGROUND The facts of this litigation have been set forth in detail in the court’s three previous memoranda, cited above. Only the facts germane to this motion merit repetition. Plaintiff represents a class of individuals who were detained in Massachusetts pursuant to 8 U.S.C. § 1226(c) by ICE for over six months without an opportunity for a bond hearing. On January 9, 2014, the court, relying on its prior decision in Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009), granted Plaintiff’s individual petition for habeas corpus. Reid I, 991 F. Supp. 2d at 282. The court concluded that two Supreme Court decisions, Zadvydas v. Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510 (2003), implied that § 1226(c) contained a
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 4 of 28
reasonableness limitation on the length of time an
individual could be detained without a bond hearing. Citing
the Ninth Circuit’s decision in Rodriguez v. Robbins, 715
F.3d 1127 (9th Cir. 2013), the court set that reasonableness threshold at the six-month mark.2 Reid I, 991 F. Supp. 2d
at 279-81.
One month later, on February 10, 2014, the court
certified the case as a class action. Reid II, 297 F.R.D.
185. The court defined the class as “all individuals who
are or will be detained within the Commonwealth of
Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six
months and have not been afforded an individualized bond
hearing.” Id. at 194. Defendants expressed concern that
two of the requirements for class certification, typicality
and commonality, were lacking because the proposed class
2 A peripheral issue in this case was Plaintiff’s individual challenge to Defendants’ policy of shackling him during immigration proceedings absent any individualized consideration. The court, after three hearings, concluded that due process did mandate some form of individualized consideration. Reid v. Donelan, 2 F. Supp. 3d 38, 47 (D. Mass. 2014). However, because ICE had already made a determination regarding Plaintiff individually, the court found that he failed to establish the irreparable harm necessary to warrant a permanent injunction.
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 5 of 28
included individuals who had received a final order of removal and were, according to Defendants, therefore not detained under § 1226(c). To assuage that concern, the court explicitly stated, “The class requested, and being certified, only includes individuals held under § 1226(c) beyond the six-month mark. Any individual held under a different statute is not, for the time being at least, part of this class.” Id. at 191 (emphasis in original). The court further explained, “Plaintiff does point out that an individual may be held under one statute but, due to the nature of his or her immigration litigation, later held under § 1226(c). At the point such individuals have been held under § 1226(c) for six months, they will become members of the class.” Id. at 191 n.3.
The parties then filed their dispositive motions. On May 27, 2014, the court, adhering to its prior decisions, granted summary judgment for Plaintiff. Reid III, 2014 WL 2199780, at *6-7. The court entered an injunction requiring Defendants to provide all class members held under § 1226(c) for more than six months the opportunity for a bond hearing pursuant to § 1226(a), which requires an initial bond
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 6 of 28
determination. If a class member is not satisfied with that determination, he or she may seek provisional release under a bond through a hearing before an Immigration Judge.
A dispute quickly arose over which detainees were class members, specifically which were subject to detention under § 1226(c). Defendants contended that the class only included what they termed “pre-removal” aliens. Once an administrative order of removal was issued, even if it was appealed, Defendants contended, the aliens were no longer in a “pre-removal” status under § 1226(c) since they were supposedly held pursuant to § 1231(a)(1) in a 90-day “removal period.” As such, they were not class members. Plaintiff disputed Defendants’ construction of § 1231 and their distorted interpretation of the class boundary. By incorrectly grafting this “pre-removal” qualification onto the class definition, Plaintiff argued, Defendants improperly reduced the size of the class and, in the process, failed to comply with the court’s order.
As this disagreement was blossoming, Plaintiff’s counsel was also attempting to obtain information about the date and time of the calendared bond hearings for
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individuals who, Defendants conceded, actually were class members. The immigration court in Hartford refused to provide that information. Since presence of counsel is often crucial at bond hearings, Plaintiff’s counsel asked Defendants to provide notice of scheduled bond hearings, which Defendants also declined to do.
In this context, on July 21, 2014, Plaintiff filed this motion for enforcement or modification of the class certification order and for limited discovery. (Dkt. No. 144.) Specifically, Plaintiff requested that the court make clear that the cohort of aliens supposedly within the 90-day “removal period,” whom Defendants were attempting to excise from the class, were being detained pursuant to § 1226(c) and not § 1231(a)(1), and were in fact class members subject to the court’s remedial order. Plaintiff further requested that the court order Defendants to alter their notice of class certification to reflect the proper scope of the class. In addition, Plaintiff sought limited discovery to ensure that all class members were obtaining timely bond hearings. Finally, Plaintiff requested that the court order Defendants to provide notice to class counsel of the dates
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and times of bond hearings as they were calendared, so that counsel could be present to advocate on behalf of individuals appearing before an Immigration Judge.
On August 11, 2014, Defendants filed their opposition to Plaintiff’s motion. (Dkt. No. 158.) Defendants contended that the class certified by the court did not include individuals who had been detained for more than six months but had received a final administrative removal order and were therefore not “pre-removal” but rather within the “removal period.” Defendants characterized Plaintiff’s motion as an impermissible attempt to expand the boundary of the class.
Plaintiff’s reply brief cited a decision from this district, Brown v. Lanoie, No. 1:13-cv-13211, Dkt. No. 27, (D. Mass. Aug. 4, 2014)(unpublished), in which Judge Indira Talwani ruled that Petitioner Brown was a member of the Reid class and entitled to a bond hearing, despite the fact that he had received a final administrative removal order and was appealing that order to the Second Circuit. For the reasons set forth below, this court agrees with Judge Talwani that Plaintiff’s construction of the class boundary, and not
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Defendants’, is correct. As a result, the court will substantially allow Plaintiff’s Motion for Enforcement (Dkt. No. 144). No modification of the order is needed, since by its terms it clearly covers the entire class cohort as conceived by Plaintiff. On one or two details the court will decline, for the time being, to provide some of the relief requested by Plaintiff.
III. DISCUSSION A. Procedural Framework
A motion for noncompliance with a court order focuses on the four corners of the order, and the court’s inquiry is limited to the order’s language. U.S. v. Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005). A party is only considered noncompliant if the order is clear and unambiguous. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991).
In Reid III, the court ordered, “Defendants shall immediately cease and desist subjecting all current and future class members –- that is, those detainees held under 8. U.S.C. § 1226(c) beyond six months -- to mandatory detention under that statute.” 2014 WL 2199780, at *8. Defendants take the position that certain individuals
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subject to administrative orders of removal are no longer held under § 1226(c) and thus are not members of the class. Consistent with this interpretation, Defendants have not given notice of class membership or the right to individualized bond hearings to those persons. As the discussion below will demonstrate, Defendants’ argument is based upon a clear misreading of the applicable statutes -a misreading that has already been noted by a number of courts. B. Categories of Contested Individuals
Plaintiff has identified four disputed categories of individuals detained under § 1226(c) in the Commonwealth for a total of at least six months who, Plaintiff argues, are class members entitled to the benefit of the court’s remedial order: 1) those who have received -- in the awkward wording of the statute -- “administratively final” orders of removal but are then granted a stay of their removal by a Court of Appeals; (2) those who have received “administratively final” orders of removal and whose motions for a stay are pending before a Court of Appeals; (3) those who receive “administratively final” orders of removal after
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they have been detained for more than six-months; and (4) those who receive “administratively final” orders, but whose petitions for review, motions to reopen, or motions to reconsider are thereafter granted. Defendants counter that none of these categories of aliens is entitled to relief under the court’s remedial order because they are no longer held pursuant to § 1226(c).
No analytical difference separates the first and second categories, i.e. those who have been granted a stay of removal by a Court of Appeals and those whose motions seeking a stay of removal are pending before a Court of Appeals. These two categories will be addressed together below. The third category -- individuals who have received a final administrative order of removal after the six-month detention limit -- contains two sub-categories: individuals who received a final order before May 27, 2014 (the date Reid III was issued) and individuals who received a final order after that date. These two sub-groups will be addressed separately. Lastly, the court will address the status of individuals in the fourth category -- aliens whose petitions for review, motions to reopen, or motions to
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reconsider have actually been granted, but who continue to
held under 1226(c) without the opportunity for a bond
hearing.
1. Individuals whose motions to stay removal are granted by, or pending before, a Court of Appeals
The parties agree the key question as to this group is
whether its detention is governed by § 1226 or § 1231.
Section 1231(a)(1) provides:
(A) In general - - Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the “removal period”).
(B) Beginning of period - - The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
Id. (emphasis added).
Defendants contend that individuals who are pursuing
appeals before a Courts of Appeals are held under § 1231,
rather than § 1226, because the “removal period” for
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purposes of § 1231 commences at “the date the order of removal becomes administratively final.”
The glaring flaw in this argument is that it overlooks the preceding phrase, “on the latest of the following.” The statute makes clear that an alien is not within the “removal period” and is not detained for purposes of § 1231 until the latest of three enumerated events, including “the day the removal order becomes administratively final” or “if the removal order is judicially reviewed and if a court orders a stay of the removal, the date of the court’s final order.” If a removal order has been stayed, or if a motion to stay is pending, the reviewing court’s decision will obviously occur later than the administrative decision that precipitated the motion for stay. Until the reviewing court issues its final order, the individual subject to the order is not within any “removal period” and is simply not being held under § 1231.
The Ninth Circuit has noted the manifest import of the statute’s language.
The more sensible reading of the statute is that if an alien files a timely petition for review and requests a stay, the removal period does not begin until the court
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of appeals (1) denies the motion for a stay or (2) grants the motion and finally decides the petition for review.
Prieto-Romero v. Clark, 534 F.3d 1053, 1059 n.5 (9th Cir.
2008)(emphasis in original)(citation omitted).
Indeed, every circuit to consider the matter has found
that § 1226 continues to govern the detention in this situation.3 See Leslie v. A.G., 678 F.3d 265, 270 (3d Cir.
2012)(“[Section] 1231 cannot explain nor authorize detention
during a stay of removal pending further judicial review.”);
Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003)(same);
Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001)(abrogated
on other grounds)(same).
Furthermore, as noted above, this district has already
considered this very question with respect to the detention
3 Defendants do not pursue a distinction between an alien being held under § 1226(a) as opposed to § 1226(c). At least one circuit has held that the authority to detain an alien who is in custody following the commission of an aggravated felony and who has received a final administrative removal order which he then appealed to the Court of Appeals is held under § 1226(a). Prieto-Romero, 534 F.3d at 1058. However, as § 1226(a) contains the hearing procedure that this court afforded to class members as relief in Reid III, it is clear that application of either 1226(a) or 1226(c) would require a bail hearing.
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of an individual in this category. In Brown v. Lanoie, No. 1:13-cv-13211, Dkt. No. 27, (D. Mass. Aug. 4, 2014)(unpublished), Judge Talwani ruled that Petitioner Dwane Brown’s detention was authorized by § 1226, rather than § 1231, during the pendency of his appeal and that Brown was therefore a member of the Reid class. Brown, 1:13-cv-13211 at *7.
Defendants’ remaining arguments regarding this group of aliens have no merit. In re Joseph, 22 I.& N. Dec. 660 (BIA 1999), is not controlling, and to the extent it may be interpreted as reaching a different conclusion about the applicability of § 1226, it is unpersuasive. Defendants’ arguments that § 1231 must be read in light of § 1252(b)(3)(B) and § 1252(b)(8)(A) and that this perspective supports their interpretation of the scope of § 1231 have been convincingly rejected by the Ninth Circuit. As that court recognized,
Section 1252(b)(8) merely clarifies that a pending petition for review does not, by itself, detract from the detention authority otherwise conferred by § 1231(a)(2) and (a)(6). . . . When the court of appeals has issued a stay, however, the alien may not be detained under any subsection of § 1231(a) unless and
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until the court finally denies the alien’s petition for review. Prieto-Romero, 534 F.3d at 1060. In sum, the most reasonable interpretation, indeed the only reasonable interpretation, of § 1231(a), and the consensus of courts that have addressed this issue, make it clear that the statutory authority to detain an individual who has successfully obtained a stay from a Court of Appeals, or has a motion to stay pending, is to be found in § 1226(c). Those individuals are therefore members of the class and entitled to the relief set forth in Reid III. 2. Individuals who received “administratively final”
orders after the six-month mark The next category of persons with disputed entitlement to bond hearings are those individuals who received “administratively final” removal orders, not subject to stay or review by the Court of Appeals, after six-months of detention. Individuals in this category are now indisputably being held under § 1231(a) and not § 1226(c). This category must be subdivided into a pre-Reid III period and a post-Reid III period.
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 17 of 28
At least two individuals identified by counsel, Triston Lewin and Melvin Nooks, received final removal orders prior to May 27, 2014, the date of Reid III. As noted, they were therefore being held under § 1231(a) and not § 1226(c) at the time the court’s remedial order issued. At least two others, Carlos Zapata and Jean Cange, received their final orders of removal after May 27, 2014. These two individuals had been held pursuant § 1226(c) for more than six months at the time the remedial order issued, but they are currently being held under § 1231(a).
a. Final administrative removal orders received before May 27, 2014
Plaintiff argues that, in fairness, because the two identified individuals, and perhaps others, were members of the class at the time it was certified on February 10, 2014, they should be entitled to the same relief as all other class members, even if they were no longer held pursuant to § 1226(c) as of the date that the court issued its remedial order in Reid III, more than three months later. Apart from fairness, Plaintiff’s concern is that, if members can fall
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out of the class with the passage of time, the government will have an incentive to engage in dilatory tactics.
While Plaintiff’s anxiety is understandable, it is assuaged by the fact -- which Plaintiff acknowledges -- that this small group of individuals will soon disappear. To comply with the remedial order, Defendants as of now must provide individualized bond hearings to class members at or before the six-month mark. The few detainees who received final removal orders prior to May 27, 2014, are not within the purview of the Reid III order. It would be unfair to Defendants for the court to hold that they failed to comply with an order that did not yet exist when they issued the final administrative order of removal against this very limited group of individuals without granting an earlier bond hearing.
b. Final administrative removal orders received after May 27, 2014
The result is different for individuals who received the final administrative order of removal after May 27, 2014. The court at that time ordered Defendants immediately to give aliens held within the Commonwealth pursuant to §
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 19 of 28
1226(c) for six months or more an individualized bond hearing. At the time this order issued, those individuals were within the scope of the court’s order. Defendants had a duty to comply with that order and their failure to grant immediate relief to the affected persons constituted noncompliance with that order.
An example makes the justice of this conclusion clear. Jean Cange was a class member and subject to the Reid III order on May 27, 2014; he was entitled to a bond hearing then. Nearly two months later, in their July 31, 2014, status report, Defendants conceded that Cange “was a Reid class member until he became subject to a final administrative order on 7/8/14, and thus, was no longer a class member.” (Dkt. No. 154-1.) In other words, up until July 8, 2014, Cange was entitled to a bond hearing, but the government failed to provide it in a timely manner. In Reid III, the court stated, “Once a member’s detention crosses that six-month barrier, he is entitled to seek some form of individualized analysis of his entitlement to bail.” Reid III, 2014 WL 2199780, at *7. As the court recognized in Bourguignon, “simple fairness, if not basic humanity,
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 20 of 28
dictates that a court should take into consideration the entire period in which a person has lost his liberty.” 667 F. Supp. 2d at 183. Denying Cange the right to an individualized bond hearing now would violate the plain language of the court’s order and the spirit behind its decision.
In this instance, moreover, Plaintiff’s concern about rewarding Defendants’ dilatoriness is compelling. If class members can fall out of the class because of Defendants’ delay in providing a bond hearing, Defendants have an incentive to stall. The only way to avoid this is to recognize that once the entitlement to a bond hearing attaches at the six-month mark individuals must be permitted the hearing, even if, due to delays, they subsequently find themselves detained under 1231(a) and not 1226(c). The right to a bond hearing for this group of detainees essentially vested on May 27, 2014. Defendants’ failure to identify those individuals and provide a bond hearing constituted a violation of the court’s order. The fact that individuals later received a final order of removal does not
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 21 of 28
excuse the previous violation or justify Defendants’ noncompliance with the court’s order.
3. Individuals who received administratively final orders but whose petitions for review, motions to reopen, or motions to reconsider are granted
Lastly, the parties seek clarification on whether individuals who were detained pursuant to § 1226(c) in the Commonwealth for a total of at least six months and who receive administratively final orders but whose petitions for review, motions to reopen, or motions to reconsider were granted are subject to the Reid III order. It is worth noting that neither party has identified any individual who falls into this category. However, it is clear that if an individual successfully obtains review, reopening, or reconsideration of an administratively final order, then the statutory basis for his or her continued detention would have to be § 1226(c). Once the individual is held for six months, he or she would be entitled to a bond hearing.
In sum, with the exception of individuals who were already subject to an administratively final order of removal as of the effective date of Reid III, May 27, 2014, all the categories of individuals identified by Plaintiff
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are class members entitled to bond hearings under the court’s remedial order. C. Request for Limited Discovery
In addition to seeking clarification from the court, Plaintiff has also requested discovery -- including the right to serve interrogatories and requests for production and to conduct depositions -- to determine the breadth of Defendants’ noncompliance. This may not be necessary. Defendants’ noncompliance was borne out of a dispute over the interpretation of the scope of the court’s order, rather than an expression of bad faith or intentional obstruction. The preferable course, now that the boundaries of the court’s order are clear, is to allow the parties to attempt to resolve any discovery issues informally. If this effort fails, the court will consider permitting formal discovery. The parties will submit a report to the court on this issue on or before January 16, 2015. D. Class Notification
The parties also disputed the timing and language of the class notification. Plaintiff expressed concern that the proposed notice did not timely or accurately apprise
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 23 of 28
class members of the relief available to them. During the September 15 hearing, Defendants represented to the court that any perceived timing issues had been resolved and that the content of the notice would be adjusted so that it would be consistent with the court’s definition of the class. Accordingly, the parties will, again, be directed to work together to craft a notice letter consistent with the scope of the class as detailed in this order. The status report due on January 16, 2015, will inform the court of the progress made on this joint effort. E. Notice of Bond Hearings
Lastly, Plaintiff requests that the court direct Defendants to notify class counsel upon calendaring a class member’s bond hearing. Defendants’ refusal to advise class counsel regarding the timing of impending bond hearings will obviously handicap severely individuals appearing at these hearings. The unfairness of requiring persons to appear pro se is especially galling, and gratuitous, since Plaintiff’s counsel has assembled a network of pro bono counsel who are willing to appear and offer their services to class members if they know in advance when a hearing will be taking place.
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The process of scheduling hearings, admittedly, creates some awkwardness. In the typical case, an alien who requests a bond hearing will receive written notice of the date and time via regular mail shortly before the hearing is to take place. The Immigration Court will provide notice of the hearing to an attorney only if the attorney has previously filed an appearance. No notice will be given to attorneys who, though willing to come to the hearings and offer representation, have not yet entered into an attorneyclient relationship with an alien or filed an appearance.
Defendants point out that Reid III only required Defendants to notify class members; the order imposed no duty to notify class counsel. Defendants contend that it would violate the individual alien’s privacy to notify a lawyer the alien may never have heard of, and may or may not want to retain, of the scheduling of the alien’s bond hearing.
Further complicating matters, class counsel is understandably reluctant to enter a blanket appearance for all bond hearings because of the ethical and practical issues related to formal representation and, where
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 25 of 28
appropriate, withdrawal. As noted, class counsel will try to arrange for attorneys to come to the bond hearings, when notice is available, by acting as a facilitator for a network of pro bono attorneys it has recruited. These volunteer attorneys appear at bond hearings and establish attorney-client relationships at that time with aliens who wish to be represented.
The crux of the dispute appears to be the privacy concerns raised by Defendants. The actual risk of some improper invasion seems minimal, given that the bond hearings themselves are public proceedings. The court therefore proposes the following approach. Along with the notification of the alien’s right to request a bond hearing, Defendants will provide, or include, a notice that he or she may request that class counsel be notified of the date and time of the bond hearing. Class members will be permitted, at the same time they request a bond hearing, to request that class counsel be notified of the date and time of the bond hearing. Where an alien makes this request, class counsel will be notified of the date and time of the bond hearing. Counsel are directed, again, to work together to
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 26 of 28
draft the language of this notification and include a report on this effort in the status report to be submitted on or before January 16, 2015.
It may be that the court’s proposal overlooks some practical problem that the parties can themselves work out, or that will need to be presented to the court for resolution. If so, the problem may be described in the status report. Striking the balance between privacy concerns, logistical demands, and the obvious importance of having counsel available for class members at these bond hearings wherever possible does not seem overly difficult if the parties work in good faith to find a solution.
IV. CONCLUSION For the reasons set forth, Plaintiff’s Motion for Enforcement (Dkt. 144) is ALLOWED in part. The Reid III order is applicable to the class as described above. In addition, the court orders as follows: 1. The parties will meet promptly to discuss informal
discovery regarding class members entitled to relief.
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Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 27 of 28
2. The parties will meet promptly to craft a notice to class members that informs them of their rights, consistent with this memorandum.
3. The parties will meet promptly to draft language informing class members of their right to consent to have notice of the date and time of their bond hearing conveyed to class counsel. If a class member so consents, Defendants will notify class counsel of the date and time of the class member’s bond hearing.
4. On or before January 16, 2015, counsel will file a joint status report regarding their progress in providing informal discovery or the need for more formal discovery. Counsel will include as an exhibit a copy of the new class notice regarding their rights, as well as a description of the progress on the issue of class notice regarding informing class counsel of the date and time of calendared bond hearings. This report will be drafted and submitted by Plaintiff’s counsel, though it should be substantively the product of -27-

Case 3:13-cv-30125-MAP Document 182 Filed 12/10/14 Page 28 of 28 the joint efforts of counsel for both sides. In the event counsel cannot agree on the contents of a joint status report, they may submit separate reports.
The clerk shall set this matter for a status conference to take place on January 21, 2015, at 11 a.m. to discuss any outstanding matters, as well as entry of final judgment.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U.S. District Judge
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22 FEDERAL SUPPLEMENT, 3d SERIES

fact MassMutual has exercised any authority to substitute funds on the Plan Menu or acted in any way other than in a ministerial fashion with respect to the Plan Menu.
Subsection (i) of the functional fiduciary definition does not apply because MassMutual never exercised any authority to control the investment options available on the Plan Menu during the limitations period. Plaintiffs argue that MassMutual at least possessed discretionary authority over the plan assets by controlling the investment of the Separate Investment Account, even if it never exercised this discretion. Even if the discretion to substitute investments on the Plan Menu falls within a broad definition of ‘‘administration’’ of the plan, plaintiffs’ argument fails under the ‘‘to the extent’’ requirement. Plaintiffs have presented no evidence that MassMutual selected investment options with reasonable fees and then unilaterally substituted funds with high fees or took any non-ministerial actions in connection with this fiduciary status. The only evidence is that it acted in a purely ministerial role with respect to investments on the Plan Menu.
CONCLUSION Because the Court concludes that MassMutual is a functional fiduciary under subsections (i) and (iii) when determines its compensation package for services provided in the SIA’ s, the Court needs not analyze plaintiffs’ other theories for triggering fiduciary duties.
ORDER The Court DENIES Defendant’s Motion for Partial Summary Judgment (Docket No. 120).
,

Mark Anthony REID, on behalf of himself and others similarly sit-
uated, Plaintiff/Petitioner,
v.
Christopher DONELAN, Sheriff of Franklin County, et al., Defendants/Respondents.
No. 13–cv–30125–MAP.
United States District Court, D. Massachusetts.
Filed May 27, 2014. Background: Criminally convicted alien filed action and habeas petition alleging that his detention by Immigration and Customs Enforcement (ICE) for more than six months without individualized bail hearing violated due process. After habeas petition was granted, 991 F.Supp.2d 275, 2014 WL 105026, and class action was certified, 297 F.R.D. 185, alien moved for notice of class certification, and parties filed cross-motions for summary judgment. Holdings: The District Court, Ponsor, J., held that: (1) due process required that ICE provide
detainees chance at conditional release within six months; (2) Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not preclude court from issuing injunction; (3) permanent injunctive relief was warranted; and (4) individualized notice of class certification was warranted. Alien’s motions granted.
1. Aliens, Immigration, and Citizenship O469
Constitutional Law O4439 Due process required that statute per-
mitting Immigration and Customs En-

REID v. DONELAN

85

Cite as 22 F.Supp.3d 84 (D.Mass. 2014)

forcement (ICE) to detain criminally convicted aliens without individualized bail hearing be read as including reasonable temporal limit requiring government to provide detainees chance at conditional release within six months. U.S.C.A. Const. Amend. 5; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §§ 303, 371, 8 U.S.C.A. § 1226(c).
2. Aliens, Immigration, and Citizenship O485
Provision of Immigration Reform and Immigrant Responsibility Act (IIRIRA) barring class-wide injunctive relief did not preclude court from issuing injunction requiring Immigration and Customs Enforcement (ICE) to hold individualized bail hearings for criminally convicted aliens once their detention became unreasonable. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §§ 303, 371, 8 U.S.C.A. §§ 1226(c), 1252(f)(1).
3. Injunction O1032 Injunction is appropriate where plain-
tiff, in addition to succeeding on merits, establishes: (1) irreparable harm; (2) absence of adequate remedy at law; (3) a favorable balance of hardships; and (4) that injunction is in public interest.
4. Aliens, Immigration, and Citizenship O485
Civil Rights O1454 Constitutional Law O4439
Permanent injunctive relief was warranted requiring Immigration and Customs Enforcement (ICE) to hold individualized bail hearings for criminally convicted aliens once their detention exceeded six months, despite ICE’s contention that injunction would conflict with Congress’ clear goal of detaining certain individuals pending their removal without opportunity to seek bail, where lengthy detention without hearing violated due process, aliens suffered irrepara-

ble harm as result of their detentions, no monetary damages could remedy harm, injunction did not require government to release any aliens, only to grant them hearings, and public had interest in ensuring that all persons, including aliens, obtained fair treatment. U.S.C.A. Const.Amend. 5; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §§ 303, 371, 8 U.S.C.A. § 1226(c).
5. Federal Civil Procedure O179
Individualized notice of class certification was warranted following entry of permanent injunction in action alleging that Immigration and Customs Enforcement’s (ICE) detention of criminally convicted aliens for more than six months without individualized bail hearing violated due process, even though no monetary damages were sought, where injunction would be illusory unless aliens detained over six months actually knew that they were members of class and that they had counsel to assist them, and costs would not be substantial. U.S.C.A. Const.Amend. 5; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §§ 303, 371, 8 U.S.C.A. § 1226(c); Fed.Rules Civ.Proc. Rule 23(b)(2), 28 U.S.C.A.
Muneer I. Ahmad, A. Nicole Hallett, Miriam Hinman, Kendall Hoechst Yale, Lunar Mai, Elizabeth Song, Ruth Swift, Tina M. Thomas, Michael J. Wishnie, Mary Yanik, Yale Law School, New Haven, CT, Sameer Ahmed, Mark C. Fleming, Rebecca Fabian Izzo, Anant K. Saraswat, Wilmer Hale LLP, Boston, MA, Lauren Carasik, Western New England College, School of Law, Springfield, MA, for Plaintiff/Petitioner.

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22 FEDERAL SUPPLEMENT, 3d SERIES

Yamileth G. Davila, Regan Hildebrand, Colin Abbott Kisor, Elianis N. Perez, J. Max Weintraub, U.S. Department of Justice, Washington, DC, Karen L. Goodwin, United States Attorney’s Office, Springfield, MA, for Defendants/Respondents.
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR NOTICE OF CLASS CERTIFICATION, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT & PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 95, 96, 117 & 123)
PONSOR, District Judge.

is entitled to summary judgment. The court, reaffirming its view that § 1226(c) includes a six-month ‘‘reasonableness’’ limitation on the length of no-bail detention, will formally award the class judgment as a matter of law.
The more difficult issue is whether the class should receive permanent, equitable relief. That analysis requires the court to address three questions. Is a class-wide injunction permissible? Is it proper? If so, what should it include? Ultimately, because the court possesses jurisdiction to issue class-wide equitable relief and because the relevant factors all suggest that such a remedy is appropriate, an order enjoining Defendants from applying § 1226(c) to the class, detailed in the conclusion of this memorandum, will issue.

I. INTRODUCTION
Plaintiff Mark Anthony Reid has brought this suit on behalf of all aliens in Massachusetts who were or will be detained under 8 U.S.C. § 1226(c) for over six months and not provided an individualized bail hearing. On January 9, 2014, the court granted Plaintiff’s individual habeas petition and concluded that detention beyond six months, absent an individualized assessment, was presumptively unreasonable. Reid v. Donelan, 991 F.Supp.2d 275, 2014 WL 105026 (D.Mass. Jan. 9, 2014) (‘‘Reid I ’’). On February 10, 2014, the court determined that the case could proceed as a class action. Reid v. Donelan, 297 F.R.D. 185 (D.Mass.2014) (‘‘Reid II’’). Currently pending before the court are Plaintiff’s Motion for Notice of Class Certification (Dkt. No. 95), Plaintiff’s Motion for a Preliminary Injunction (Dkt. No. 96), and cross-motions for summary judgment (Dkt. Nos. 117 & 123).
As the curtain closes on this litigation, two issues require examination. The penultimate question is whether either party

II. BACKGROUND
Plaintiff, Mark Anthony Reid, represents a class of aliens who were (or will be) detained under 8 U.S.C. § 1226(c), were not provided an individualized bail hearing, and were in custody for over six months. The background of this litigation and the underlying statutory framework have previously been outlined in detail. See Reid v. Donelan, 991 F.Supp.2d 275, 2014 WL 105026 (D.Mass. Jan.9, 2014) (‘‘Reid I’’). As a result, only a summary is required here.
Plaintiff came to the United States in 1978 as a lawful permanent resident. He has since amassed a substantial criminal history. In 2010, he was convicted of several crimes in Connecticut state court and was sentenced to twelve years in prison, to be suspended after five.
On November 13, 2012, after serving two years, the state transferred Plaintiff into the custody of Immigration and Customs Enforcement (‘‘ICE’’). ICE immediately initiated proceedings to remove him based on four non-violent state drug

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convictions.1 ICE detained Plaintiff under 8 U.S.C. § 1226(c)—a statute that mandates detention for certain criminally convicted aliens and does not provide them any opportunity for a bail hearing.2 Pursuant to this law, Plaintiff was not afforded any opportunity to seek an individual bail assessment. A different section of the statute, § 1226(a), permits non-mandatory detention and provides those aliens an opportunity for conditional release.
After more than six months of detention, Plaintiff, on July 1, 2013, filed an individual habeas petition seeking the opportunity to argue for release on bail. The driving legal question presented in his petition was whether § 1226(c) included a ‘‘reasonableness’’ requirement after which an individual’s detention, absent a bail hearing, became unreasonable.3 Plaintiff anchored his claim on Bourguignon v. MacDonald, 667 F.Supp.2d 175 (D.Mass.2009), where the court found that such a limit did exist. Plaintiff also filed a Motion for Class Certification on August 15, 2013. (Dkt. No. 33.) The next day, Defendants moved to dismiss the case. (Dkt. No. 35.)

After hearing argument on December 12, 2013, the court, on January 9, 2014, granted Plaintiff’s individual petition for habeas corpus. Reid I, 991 F.Supp.2d 275, 2014 WL 105026. After reexamining its prior decision in Bourguignon, it concluded that § 1226(c) must be read as including a ‘‘reasonableness’’ limit to comport with due process. That limitation was set, consistent with an approach adopted by the Ninth Circuit, at six months. Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).
On February 10, 2014, the court allowed Plaintiff’s Motion for Class Certification. Reid II, 297 F.R.D. at 194. It defined the class, pursuant to Fed.R.Civ.P. 23, as ‘‘all individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing.’’ Id.
Plaintiff, on March 2, 2014, filed a Motion for Notice of Class Certification (Dkt. No. 95) and a Motion for a Preliminary Injunction (Dkt. No. 96). Given the procedural posture of the case, Defendants argued that briefing on those issues should be consolidated with the parties’ disposi-

1. An Immigration Judge initially ordered Plaintiff removed on April 5, 2013. The Board of Immigration Appeals (‘‘BIA’’), however, remanded the case on October 23, 2013, for a hearing on Plaintiff’s Convention Against Torture claim. An Immigration Judge held an evidentiary hearing on that matter on November 19, 2013, and again ordered Plaintiff removed. Plaintiff’s second appeal to the BIA is currently pending.
2. That statute requires the alien to be detained ‘‘when TTT released’’ from criminal custody. Recently, in Gordon v. Johnson, the court concluded that such language signified an immediacy requirement and limited the class of aliens subject to mandatory detention. Gordon v. Johnson, 300 F.R.D. 31, 2014 WL 2120002 (D.Mass. May 21, 2014). The court ordered equitable relief analogous to the rem-

edy provided here. Id. at 42–43, 2014 WL 2120002 at *12–13.
3. A peripheral issue in Plaintiff’s case has been his individual challenge to ICE’s policy of shackling all § 1226(c) detainees during immigration proceedings without any form of individual consideration. On March 6, 2014, the court concluded that such a policy violated Plaintiff’s due process rights. Reid v. Donelan, 2 F.Supp.3d 38, 2014 WL 896747 (D.Mass. March 6, 2014). However, because ICE had already provided Plaintiff an individual assessment, he had obtained the remedy he was entitled to and thus was unable to establish irreparable harm. Therefore, the court did not issue an injunction and, instead, allowed Defendants’ motion for summary judgment on the issue.

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tive motions. (Dkt. No. 103.) The court agreed with Defendants and ordered an expedited briefing schedule. (Dkt. No. 111.) Accordingly, the parties filed their cross-motions for summary judgment on April 4, 2014, (Dkt. Nos. 117 & 123), and counsel appeared for argument on May 7, 2014. The court then took the matter under advisement.
III. DISCUSSION
Though a number of motions are currently pending, they raise two broad questions. The first—whether either party is entitled to summary judgment—is easily answered in Plaintiff’s favor given the court’s previous rulings.
The more challenging question is what relief is appropriate. This analysis, like the one presented in the court’s recent decision in Gordon, comprises three issues: whether class-wide equitable relief is permissible under 8 U.S.C. § 1252(f)(1), whether equitable relief is appropriate in this case, and what such relief, if any, should entail.
A. Summary Judgment
Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences from those facts in that party’s favor. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir.2004). In the absence of a dispute over a genuine issue of material fact, summary judgment is appropriate. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997). When

addressing cross-motions for summary judgment, ‘‘the court must consider each motion separately, drawing inferences against each movant in turn.’’ Id. at 6.
Both parties agree that the question before the court is one purely of law: whether § 1226(c) includes a ‘‘reasonableness’’ limit on the length of time an individual can be detained without an individual bond hearing and, if so, where that limit lies. Plaintiff believes that the analysis employed for his individual habeas petition equally resolves the class-wide motion here. Defendants argue that the court’s prior decisions were incorrect and should be reconsidered.4
[1] After reviewing Reid I and Bourguignon, the court again concludes that due process requires § 1226(c) to be read as including a ‘‘reasonableness’’ limit requiring the government to provide detainees a chance at conditional release after that threshold is crossed. That view, as discussed at length in those two decisions, is compelled by two Supreme Court opinions: Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).
In Zadvydas, the Supreme Court held that detention following issuance of an order of removal, absent a bail hearing, was only permissible so long as removal was ‘‘reasonably foreseeable.’’ 533 U.S. at 699, 121 S.Ct. 2491.5 After six months, the court concluded that the detention became presumptively invalid and a bail hearing was required. Id. at 701, 121 S.Ct. 2491. The Court grounded this limit on its con-

4. On March 10, 2014, Defendants indicated that they would be appealing the court’s decision on Plaintiff’s individual habeas petition. (Dkt. No. 108.)

5. Apparently, even after an alien is ordered removed, it can take a significant period of time—months or even years—to effectuate that order.

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cern that indefinite detention would violate due process.
Two years later, the Supreme Court addressed the constitutionality of § 1226(c) in Demore. The court upheld the constitutionality of the statute, but assumed that the removal process would be relatively brief. Demore, 538 U.S. at 513, 123 S.Ct. 1708. Critically, Justice Kennedy noted in his concurrence that ‘‘a lawful permanent resident TTT could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.’’ Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring)(citing Zadvydas, 533 U.S. at 684–86, 121 S.Ct. 2491).
Weighed together, these two cases mandate that § 1226(c) be read as including a temporal limit on detention to avoid due process problems. This view, as discussed in Reid I, has been consistently adopted by this district and other courts throughout the country. See, e.g., Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir.2013); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011); Flores–Powell v. Chadbourne, 677 F.Supp.2d 455 (D.Mass.2010) (Wolf, J.); Sengkeo v. Horgan, 670 F.Supp.2d 116 (D.Mass.2009) (Gertner, J.) In line with these cases, this court again concludes that it must invoke the canon of constitutional avoidance and interpret the statute as including this ‘‘reasonableness’’ limitation.
The Ninth Circuit’s approach to determining the ‘‘reasonableness’’ limit—setting a bright-line six-month rule—is also still the most appropriate. Robbins, 715 F.3d at 1133. As emphasized in Reid I, this limit is consistent with the Supreme Court’s own rule in Zadvydas, comports with due process—both in terms of the

individual detainee’s interests and broader access-to-justice concerns—and is significantly more workable than the alternative, individualized approach Defendants favor. Reid I, 991 F.Supp.2d at 279–82, 2014 WL 105026 at *4–6. Because ‘‘no persuasive argument justifies discarding this pragmatic approach when dealing with individuals detained under § 1226(c),’’ the court will apply the six-month rule to the entire class. Reid I, 991 F.Supp.2d at 279–80, 2014 WL 105026 at *4.
This court first addressed this legal issue five years ago. The arguments and analysis are largely unchanged. It was as true in Bourguignon as it is today: due process requires § 1226(c) detainees the opportunity to argue for conditional release after detention extends beyond the six-month limit. As such, the court will award the class judgment as a matter of law.
B. Relief
As noted above, the analysis of appropriate permanent relief presents three issues: whether relief is permissible; whether relief is appropriate; and what the relief should include.
1. Is Relief Permissible?
The first question is whether § 1252(f)(1) bars classwide equitable relief.6 That statute states that no court ‘‘shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1231] TTT other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.’’ Defendants contend that

6. If § 1252(f)(1) did serve as a bar to relief, Plaintiff believes that the court would maintain its habeas jurisdiction and could still issue a class-wide injunction. The court need

not decide that issue as § 1252(f)(1), for the reasons discussed, does not bar a remedy here.

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the plain language of this law bars equitable relief here.
[2] A prolonged analysis is not required. In Gordon, the court concluded that a distinction exists between enjoining the ‘‘operation’’ of the law and requiring the government to obey it. Gordon, 300 F.R.D. at 39–40, 2014 WL 2120002 at *8–9. Indeed, an injunction ‘‘will not prevent the law from operating in any way, but instead would simply force Defendants to comply with the statute. The purposes underlying § 1252(f)(1) and associated case law justify this distinction.’’ Id. at 40, 2014 WL 2120002, at *9.
If § 1226(c) should be read as requiring a bail hearing after detention becomes unreasonable—which it must—the distinction previously highlighted is equally applicable here. In this case, since a class-wide injunction will only require the government to comply with that proper interpretation, § 1252(f)(1) does not preclude class-wide relief.7 See also Rodriguez v. Hayes, 591 F.3d 1105, 1109 (9th Cir.2010).
2. Is Relief Appropriate?
[3] The second, related question is whether equitable relief should issue. To obtain declaratory relief, Plaintiff must show that it ‘‘will serve the interests of the litigants or the public.’’ Metro. Prop. & Liab. Ins. Co. v. Kirkwood, 729 F.2d 61, 62 (1st Cir.1984). An injunction is appropriate where a plaintiff, in addition to succeeding on the merits, establishes: (1) irreparable harm; (2) the absence of an adequate remedy at law; (3) a favorable balance of hardships; and (4) that an injunction is in the public interest. Esso

Standard Oil v. Lopez–Freytes, 522 F.3d 136, 148 (1st Cir.2008) citing eBay v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).
Defendants’ main argument against an injunction, one intertwined with their view on the merits, is that equitable relief is not in the public interest.8 Specifically, the class seeks a remedy that, in Defendants’ view, conflicts with Congress’ clear goal of detaining certain individuals pending their removal without opportunity to seek bail. Their argument is essentially that § 1226(c) cannot be read as including a ‘‘reasonableness’’ requirement and that, therefore, a court order imposing one would be against the public interest.
[4] Defendants’ arguments, dependent almost exclusively on the merits of the case, cannot succeed. First, there can be no doubt that members of the class are suffering irreparable harm each day they are detained beyond six months without the opportunity to argue for release. See Robbins, 715 F.3d at 1144. Such detention is an emotional and physical ordeal for class members and is particularly severe for those who have colorable claims for release on bail during the pendency of their removal proceedings. Furthermore, the deprivation of due process rights, as is occurring here, is sufficient on its own to establish irreparable harm. Cf. Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir.1987).
The second factor is also easily satisfied. No monetary damages can remedy the harm alleged. As such, there exists no adequate remedy at law.

7. The court is also satisfied, given the plain language of the statute and the First Circuit’s decision in Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir.2003), that class-wide declaratory relief is available. Reid II, 297 F.R.D. at 193.

8. Defendants also focus on the preliminary nature of the relief requested. They correctly contend that a preliminary injunction, given the procedural posture of this case, would be duplicative.

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In terms of the balance of hardships, Plaintiff has shown that an injunction would assist the class while imposing a negligible burden on the government. As this court has noted before, the court’s order will not require the government to release a single individual. Instead, the government must simply provide class members the opportunity to argue for release. ‘‘This opportunity, of course, will not make actual release inevitable, or even necessarily likely.’’ Reid II, 297 F.R.D. at 188. Besides the slight logistical challenge of providing individual bail determinations and hearings—a modest burden—the government loses nothing. Under such circumstances, the balance of hardships favors Plaintiff’s position.
Finally, despite Defendants’ contention, an injunction is in the public interest. The public has a general interest in upholding individuals’ constitutional rights. See Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008), overruled on other grounds by Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir.2012). Indeed, the public has an interest in ensuring that all persons, including aliens, obtain fair treatment in legal proceedings. Here, due process requires reading § 1226(c) in the manner discussed.9
Ultimately, a binding order requiring the government to comply with the constitutionally mandated interpretation of § 1226(c) is warranted. This is the only guarantee that the government will provide members of the class with the remedy they are entitled to.
3. What Should Relief Entail?
Since the court will be ordering permanent, injunctive relief, it must determine the shape of that order. Here, two issues

must be addressed: (1) the notice, if any, the court should provide class members, and (2) the process to be used in making bail determinations.
a. Motion for Notice of Class Certification
Notice for Rule 23(b)(2) classes is discretionary and should be ordered ‘‘with care.’’ Fed.R.Civ.P. 23(d), advisory committee’s notes to 2003 amendment. This special attentiveness is demanded because formal notice may not serve any purpose and the costs of providing notice may be substantial. Id.
Defendants believe that this case, particularly since the class is not seeking monetary damages, does not warrant notice. See Key v. Gillette Co., 90 F.R.D. 606, 611– 12 (D.Mass.1981). In their view, class members have counsel to represent their interests and notify them of their rights. Moreover, an individual’s knowledge that he or she is a member of the class may be unrelated to whether this individual obtains a remedy. Alternatively, Defendants request that any order be limited to general, rather than individual, notice.
[5] This argument ignores the need class members will have to contact class counsel to obtain assistance in navigating the balky remedial process. The remedy the court will be imposing will be to require Defendants to afford each class member detained under § 1226(c) for over six months the same opportunity for a bail hearing available under § 1226(a). In order to access relief under § 1226(a), class members (including aliens with limited command of English) will themselves bear the burden to request bail hearings. To take this step, it is essential that aliens

9. Given the conclusions with respect to each factor, declaratory relief is also appropriate in

this case.

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actually know that they are members of the class and that they have counsel to assist them. Without this, the court’s remedy will be, as a practical matter, illusory in many cases.
Notice is particularly essential for the class members transferred out of Massachusetts. At least two class members— after being detained in Massachusetts for over six months—have been transferred to other states. (Dkt. No. 97, Ex. 1.) Individual notice is critical for these members, who would not otherwise have access to any general notice provided in the Commonwealth.
The government should also shoulder the burden to provide the individual notice. Defendants are in exclusive possession of the names of individual class members. Further, the cost of providing the notice— since members are in its custody—will not be substantial. Indeed, the government, as discussed below, will need to provide each member with an individualized bail determination pursuant to § 1226(a). The government may provide notice of class certification simultaneously with that individualized decision—thereby further minimizing the burden. For all these reasons, the court will allow Plaintiff’s motion on this point and will order that the government provide individual notice of class certification.
b. Logistics of Bail Determinations
In terms of the specific remedy, Plaintiff contends that a number of protections beyond those provided in § 1226(a) are necessary. He justifies this approach by

relying on the Ninth Circuit’s decision in Robbins. There, the court affirmed a district court’s decision to require the government to show ‘‘by clear and convincing evidence that continued detention is justified.’’ Robbins, 715 F.3d at 1131; see also Diop, 656 F.3d at 223 (placing the burden of proof on ICE.)
Plaintiff argues that the court should adopt the Ninth Circuit’s approach with respect to the burden and standard of review for these class members. He also requests that the government automatically schedule hearings as members enter the class and that the government maintain contemporary records of the hearings in the event of an appeal. Finally, Plaintiff seeks an order requiring Immigration Judges to consider all alternatives to detention when contemplating an individual’s release on bail.
The court, of course, respects the Ninth Circuit’s approach, but concludes that the government’s recommendation—that the court should limit any remedy to the one available to detainees under § 1226(a)—is the better option. As the court recently discussed in Gordon, individuals who committed a § 1226(c) predicate offense should not receive more protections than § 1226(a) detainees.10 As noted,
Although the court has its concerns about the procedures used to effectuate the requirements of § 1226(a)—specifically the time between detention and a bail hearing as well as the ability of a detainee to ensure his or her request for a hearing makes its way to an Immigra-

10. In Gordon, § 1252(f)(1) also arguably barred the court from imposing a more intrusive remedial order beyond requiring the government to afford class members access to the § 1226(a) process. Gordon class members should have been classified as § 1226(a) detainees but, instead, were improperly held under § 1226(c). Gordon, 300 F.R.D. at 41–

42, 2014 WL 2120002 at *11. The class-wide remedy was rightly limited to rectifying that mistake. Here, no question exists that class members were properly categorized as § 1226(c) detainees, and thus § 1252(f)(1) offers no bar—if the court concluded it was appropriate—for a more detailed remedy.

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tion official—as a matter of fairness, class members should not receive more than their counterparts who, it should be noted, have not committed any § 1226(c) predicate offense. Gordon, 300 F.R.D. at 41–42, 2014 WL 2120002 at *11.
Class members here are detained, under valid statutory authority, for six months. Once a member’s detention crosses that six-month barrier, he is entitled to seek some form of individualized analysis of his entitlement to release on bail. Section 1226(a) provides a reasonably effective way for class members to obtain the individualized assessment they are entitled to, without giving them heightened or special treatment that due process does not require. Therefore, the court will adhere to the approach it adopted in Gordon and order Defendants to apply § 1226(a) to all current and future class members.
IV. CONCLUSION
The burden on the executive branch officials to manage our labyrinthine immigration system is heavy. The need to detain certain individuals pending removal cannot be denied. But, where the government applies a statute without consideration for constitutional guarantees, the rights of vulnerable aliens are at risk. The suggestion that § 1226(c) permits indefinite detention—for years, in some cases—without even the opportunity to request bail, ignores the assumption underlying this law, which Justice Kennedy recognized in Demore, that removal occur swiftly and that detention be ‘‘reasonable.’’
Accordingly, the court hereby ALLOWS Plaintiff’s Motion for Summary Judgment (Dkt. No. 123), and Plaintiff’s Motion for Notice of Class Certification (Dkt. No. 95), DENIES Defendants’ Motion for Summary Judgment (Dkt. No. 117), and DENIES as moot Plaintiff’s Motion for a Pre-

liminary Injunction (Dkt. No. 96). The court DECLARES as follows:
1 As to every class member, the mandatory detention provision, 8 U.S.C. § 1226(c), applies only to aliens detained by the Department of Homeland Security (‘‘DHS’’) for a ‘‘reasonable’’ period of time—specifically six months or less.
1 As to every class member, an alien who is subject to detention pursuant to 8 U.S.C. § 1226(c) for over six months is entitled to an individual bail determination and a bond hearing before an Immigration Judge as contemplated in § 1226(a).
In accordance with that finding, the court hereby ORDERS the following:
1 Defendants shall immediately cease and desist subjecting all current and future class members—that is, those detainees held under 8 U.S.C. § 1226(c) beyond six months—to mandatory detention under that statute.
1 Defendants shall immediately determine the custody of every current class member under 8 U.S.C. § 1226(a) and timely provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. §§ 1003.19 & 1236.1(d).
1 As individuals enter the class at the six-month mark, Defendants will immediately determine the custody of each individual under 8 U.S.C. § 1226(a) and provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. §§ 1003.19 & 1236.1(d).
1 Defendants will provide individual notice of class certification, in both English and Spanish. Notice shall in-

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clude a description of the class and the names and contact information for all class counsel. Notice may be provided either before, or simultaneously with, the initial bail determination under § 1226(a). Notice must be individually provided to:
1 all current class members detained in Massachusetts;
1 those who were detained in Massachusetts under 8 U.S.C. § 1226(c) for over six months without a bail hearing as of February 10, 2014, and have since been transferred out of the Commonwealth; and
1 all future class members at the point they enter the class.
1 On or before June 30, 2014, Defendants shall provide class counsel with a list of identified class members, including their names and alien numbers, and the facility in which they are detained.
1 On or before July 31, 2014, Defendants shall submit to the court a report detailing the following:
1 any custody determinations made for class members, including the dates they were made, the determination, and, if applicable, whether the individual petitioned for a bail redetermination in front of an Immigration Judge;
1 any bond hearings held for class members, including the dates they were held and the outcomes of those hearings, including the amounts of any bond set; and,
1 the process and criteria by which class members have been identified.
The clerk shall set this matter for a status conference on September 15, 2014, at 4:00 p.m., to review Defendants’ compli-

ance with this order and to discuss entry of final judgment.
It is So Ordered.
,
Joseph LUND, Plaintiff,
v. Daniel HENDERSON, John Walcek,
Thomas Joyce, in his capacity as Chief of the Wareham Police Department, The Town of Wareham, Defendants.
Civil Action No. 11–11413–NMG.
United States District Court, D. Massachusetts.
Signed May 27, 2014. Background: Arrestee commenced action against municipality and police officers, alleging false arrest and false imprisonment, assault and battery, intentional infliction of emotional distress, violation of § 1983, violation of civil rights under Massachusetts Civil Rights Act (MCRA), malicious prosecution, abuse of process, and negligent supervision. Defendants moved for summary judgment. Holdings: The District Court, Collings, United States Magistrate Judge, recommended that: (1) evidence raised genuine issue of mate-
rial fact as to whether police officers had made arrest without probable cause and used excessive force in doing so; (2) unlawful arrest alone, even one with excessive force of pulling arrestee’s hands and twisting his arms behind his back, cuffing him, dragging him to cruiser and pushing his head down to

 </s> case 3:13-cv-30125-MAP Document 2 Filed 07/01/13 Page 1 of 40

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Mark Anthony REID,

)

)

on behalf of himself and others

)

similarly situated,

)

)

Petitioner/Plaintiff,

)

)

v.

)

)

Christopher DONELAN, Sheriff,

)

Franklin County, Mass; David A. LANOIE, )

Superintendent, Franklin County Jail & )

House Of Correction; Janet

)

NAPOLITANO, Secretary ofthe

)

Department of Homeland Security;

)

John MORTON, Director oflmmigration )

and Customs Enforcement; Dorothy

)

HERRERA-NILES, Director,

)

Immigration and Customs Enforcement )

Boston Field Office; Thomas HODGSON, )

Sheriff, Bristol County, Mass, Joseph

)

McDONALD, Jr., Sheriff, Plymouth

)

County, Mass, Steven TOMPKINS,

)

Sheriff, Suffolk County, Mass.; Eric

)

HOLDER, Attorney General ofthe United )

States; Juan OSUNA, Director of the

)

Executive Office for Immigration Review; )

and THE EXECUTIVE OFFICE FOR

)

lMMIGRATION REVIEW,

)

)

~R~es~p~o~na~e~n~~~ID~e~6~en~a~a~n~~~·------------)

Case No. July 1, 2013

MEMORANDUM OF LAW IN SUPPORT OF MARK REID'S PETITION FOR WRIT OF HABEAS CORPUS AND FOR SUMMARY JUDGMENT

case 3:13-cv-30125-MAP Document 2 Filed 07/01/13 Page 2 of 40
TABLE OF CONTENTS TABLE OF AUTHORITIES .........................................................Error! Bookmark not defined. INTRODUCTION ..........................................................................................................·....... ·...... · 1 ORAL ARGUMENT REQUESTED .............................................................................................. 3 FACTS AND PROCEEDINGS ...................................................................................................... 4
I. PERSONAL BACKGROUND ...................................................................................... 4 II. REMOVAL PROCEEDINGS ....................................................................................... 7 III. BOND PROCEEDINGS ................................................................................................ 8 ARGUMENT ................................................................................................................................ 10 I. AS TffiS COURT HAS HELD, § 1226(C) REQUIRES AN INDIVIDUALIZED BOND HEARING WHEN DETENTION IS "UNREASONABLE." ................................ I0
A. 8 U.S.C. § 1226 Must Be Construed To Avoid Constitutional Infirmities.......... 10 B. § 1226 Cannot Authorize Mr. Reid's Prolonged, No-Bond Detention................ 14 C. Under Any Construction of§ 1226, Mr. Reid Has A Right To A Bond Hearing.
16 II. ABSENT A CONSTITUTIONAL INTERPRETATION OF§ 1226(C) AFFORDING IDM AN INDIVIDUALIZED BOND HEARING, MR. REID'S PROLONGED DETENTION VIOLATES THE FIFTH AMENDMENT....................... 18 III. TO AVOID VIOLATING THE EIGHTH AMENDMENT,§ 1226(C) MUST BE CONSTRUED AS AUTHORIZING PROLONGED NO-BOND DETENTION ONLY TO ADVANCE A COMPELLING STATE INTEREST OTHER THAN PREVENTION OF FLIGHT............................................................................................................................ 21 IV. MR. REID'S CONTINUED DETENTION, ABSENT A COMPELLING GOVERNMENT INTEREST OTHER THAN THE PREVENTION OF FLIGHT, VIOLATES THE EIGHTH AMENDMENT....................................................................... 25 V. TillS COURT SHOULD ORDER MR. REID TO BE RELEASED ON BOND... 25 CONCLUSION ............................................................................................................................. 29
ii

case 3:13-cv-30125-MAP Document 2 Filed 07/01/13 Page 3 of 40
INTRODUCTION In 2009, this Court ordered the government to provide an immigration detainee named Bristout Bourguignon with a bond hearing, rejecting the government's argument that 8 U.S.C. § 1226(c) authorized the government to detain him for a prolonged period of time without any individualized inquiry into his dangerousness or flight risk. Bourguignon v. MacDonald, 667 F. Supp. 2d 175, 184 (D. Mass 2009). The government chose not to appeal, and the Hartford Immigration Court subsequently held the bond hearing ordered by this Court. Other judges in the District of Massachusetts have rejected the government's interpretation of§ 1226 in favor of the reasoning of Bourguignon. The government has also declined to appeal these decisions. And yet government attorneys continue to argue, and immigration judges adjudicating bond motions from immigration detainees confined in Massachusetts continue to adhere to, the same unlawful statutory interpretation that this Court has rejected. The government's repeated disregard ofthe rulings ofthis Court and of other judges in the District has resulted in the unlawful confinement of all but those few indigent detainees able to muster the resources to file a writ of habeas corpus. Petitioner Mark A. Reid is one such detainee. Mr. Reid is a longtime lawful permanent resident ofthe United States and the father of two U.S. citizen children. Mr. Reid has lived in New Haven, Connecticut for more than thirty years and served honorably in the United States Army Reserve. For nearly eight months, he has been held in immigration detention without an individualized bond hearing, an amount of time that is unlawful and unconstitutional. In November 2012, U.S. Immigration and Customs Enforcement ("ICE"), a component of the Department of Homeland Security ("DHS"), took custody of Mr. Reid, initiated removal

Case 3:13-cv-30125-MAP Document 2 Filed 07/01/13 Page 4 of 40
proceedings against him, refused to set any bond, and has since subjected Mr. Reid to prolonged no-bond detention.
Mr. Reid has a strong claim for deferral of removal under the Convention Against Torture ("CAT") because of the high likelihood that he will be tortured if deported to Jamaica. 1 Through counsel, he requested that ICE set bond administratively. ICE has ignored and therefore constructively denied this request.
Mr. Reid also requested a bond hearing in the Hartford Immigration Court. When he appeared with counsel for the hearing, Mr. Reid was fully shackled. Through counsel he requested that his hands be unshackled, but the ICE attorney objected on the ground that there allegedly had been "an incident" involving another, unnamed immigration court respondent that resulted in an ICE policy of shackling all detainees during court proceedings. The Immigration Judge then held that he lacked power to order ICE to unshackle Mr. Reid. When the Immigration Judge proceeded to consider Mr. Reid's request for an individualized bond hearing, ICE counsel again objected. The Immigration Judge accepted ICE's counsel's invalid interpretation, holding that he had no authority to set bond in Mr. Reid's case by virtue of§ 1226(c). Thus, both DHS and the Department of Justice have refused to provide Mr. Reid with an individualized bond hearing.
As this Court has already decided, these agency decisions denying Mr. Reid a bond hearing violate the U.S. Constitution as well as the Immigration and Nationality Act (''INA"). The Fifth Amendment's Due Process Clause prohibits the government from arbitrarily detaining any person or from refusing to provide a detained person a meaningful method to challenge his
1 In this brief, Mr. Reid does not discuss the details ofhis pending application for relief under the Convention Against Torture (''CAT") due to the sensitive nature of the information contained therein. See 8 C.F.R. § l208.6(a) (protecting records related to asylum proceedings from disclosure without consent ofthe applicant): id § l208.l(a) (applying confidentiality protection of§ 1208.6(a) to applications lor withholding of removal under CAT).
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detention, and the Eighth Amendment's Excessive Bail Clause prohibits the government from setting excessive conditions of release or detention. Against this backdrop, federal courts around the country, including three U.S. Courts of Appeals and numerous district courts, have read the INA to include limits on the government's power to detain noncitizens without an individualized bond hearing. These courts have ordered bond hearings for individuals situated similarly to Mr. Reid. Mr. Reid's nearly eight-month detention has exceeded the limits imposed by multiple U.S. Courts of Appeals and federal courts in the First Circuit.
At a bond hearing, Mr. Reid will be able to show that he is neither a flight risk nor a danger to the community, and therefore that reasonable bond should be set in his case. Mr. Reid will demonstrate that he has strong community ties and a support network in New Haven that will help him with housing, provide necessary mental health treatment for his Post-Traumatic Stress Disorder ("PTSD") and depression, and help him to once again be a productive member of society. As the government refuses to provide him with such a hearing, Mr. Reid respectfully applies to this Court for a writ of habeas corpus to remedy his prolonged, no-bond detention by ICE, and for an order that during any such bond hearing, Mr. Reid not be shackled absent an individualized showing of dangerousness.
ORAL ARGUMENT REQUESTED Mr. Reid respectfully requests oral argument on his petition and motion. Because he is a longtime lawful permanent resident subject to prolonged, no-bond detention based on the government's adherence to a statutory interpretation that this Court has already rejected, Mr. Reid requests that a hearing be scheduled at the Court's earliest convenience.
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FACTS AND PROCEEDINGS I. PERSONAL BACKGROUND
Mark Anthony Reid was born in 1964 in Kingston, Jamaica to Beverly Pryce and Reginald Reid. Declaration ofTassity Johnson dated July 1, 2013 ("Johnson Decl."), Exh. A~~ 2, 4-5.2 When Mr. Reid was two years old, his mother immigrated to the United States, leaving Mr. Reid in the care ofhis maternal grandmother. Id. ~~ 9, 11. Mr. Reid subsequently suffered several severely traumatic events as a child.
When Mr. Reid was fourteen years old, his mother sponsored him to come to the United States to live with her. Id. ~~ 28-29. Mr. Reid entered the United States as a lawful permanent resident, and has lived in the United States ever since. ~ ~ 29. Mr. Reid initially had trouble adjusting to his new life in the United States. He attended multiple high schools because his mother moved several times. Id. ~ 30. He also felt significant anger toward his mother for not protecting him from the traumas he experienced in Jamaica. Id. ~ 32. Ultimately, Mr. Reid dropped out of high school. ld. ~ 37.
Despite his initial difficulties, Mr. Reid soon sought opportunities to support and better himself. He earned his GED from the Tomlinson Adult Learning Center in St. Petersburg, Florida. See id. ~~ 36-37. Soon thereafter, Mr. Reid moved to New Haven, Connecticut to work for his uncle's construction business. ld. ~~ 43. Wanting to serve his country, Mr. Reid joined the United States Army Reserve in 1984. Id. ~~ 46-48. He served for six years, stationed in Springfield, Massachusetts, and was honorably discharged in 1990. Id. ~~ 46, 50; Johnson Decl., Exh. U.
2 To avoid disclosure of sensitive information, Mr. Reid is filing a redacted version of Exhibits A, C, D, and T to the Johnson Declaration on the public docket. See footnote 1, above. ICE has already received an unredacted copy of each ofthese exhibits in Mr. Reid's immigration proceedings. Mr. Reid will provide an unredaeted copy of each of these exhibits to the Court under seal if requested.
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In the following decades, Mr. Reid went back to school, worked hard at various jobs, and
became a property owner. Id. ~51. While in the Army Reserve, Mr. Reid worked in construction
and at a Wendy's restaurant. After his discharge, he worked in construction, asbestos removal,
and as a loan originator. ld. Mr. Reid was able to save enough money to allow him to purchase
several rental properties in New Haven. ld. He also took post-secondary courses in business
administration, paralegal skills, and criminalistics, and he earned a certificate as a loan originator
from a financial services firm in New Haven. ld. ~ 44.
Throughout his early adulthood, Mr. Reid continued to experience anger and confusion
related to the childhood trauma he experienced, and he turned to illegal drugs for relief. Id. ~55. He began to use illegal drugs in the 1980s and was first arrested for drug possession in 1986.3
ld.; Johnson Decl., Exh. B. In 2000, Mr. Reid was stabbed in the abdomen by a relative of a
tenant he was evicting from one of his rental properties, requiring multiple surgeries, and began
using heroin to manage the pain he experienced. Johnson Dec!., Exh. A~~ 56- 57. He sought
treatment for substance abuse, but he continued to suffer from pain and returned to using heroin.
See id. ~~57-58. Mr. Reid was arrested in 2009 for drug sale and burglary in the third degree.
3 This was the first of various criminal convictions: Drug sale; burglary in the third degree; failure to appear (sentenced on July 7, 2010 to 12 years suspended after 5 years in custody; 5 years of conditional discharge); Drug possession; drug sale (sentenced on Aug. 25, 2004 to 7 years suspended after 4 years in custody; 3 years of conditional discharge); Failure to appear (sentenced on May 28, 2004 to unconditional discharge); Probation violation (two counts) (sentenced on April 15, 2004 to 30 months in custody); Drug possession (sentenced on June 6, 2002 to 5 years suspended after 1 year in custody; 3 years of probation); Assault in the third degree; failure to appear in the second degree (two counts) (sentenced on March 29, 2000 to 1 year suspended sentence; 2 years of probation); Operating a car with a suspended license; failure to appear in the second degree (sentenced on July 28, 1999 to a 30-day suspended sentence; 1 year conditional discharge); Weapon in a vehicle (sentenced on Feb. 20, 1998 to $350 tine); Reckless endangerment (sentenced on Feb. 20. 1998 to 6 month suspended sentence; 2 years of probation); Failure to appear in the second degree (sentenced on Dec. 23. 1997 to unconditional discharge): Threatening (sentenced on June 11, 1997 to 6 month suspended sentence: I year of conditional discharge); Interfering with a police officer (sentenced on Aug. 31, 1995 to 6 month suspended sentence; I year of conditional discharge); Carrying dangerous weapon (sentenced on Dec. 21, 1993 to I year suspended sentence; I year of conditional discharge); Assault in the third degree (sentenced on Nov. 4, I992 to 6 month suspended sentence; I year of conditional discharge); Drug possession; larceny in the second degree (sentenced on Dec. 14, 1988 to 2 year suspended sentence; 3 years of probation); Drug possession (sentenced on Feb. 19, 1986 to 2 year suspended sentence, 4 years of probation).
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He was sentenced to twelve years suspended after five years, of which he served approximately two years.4 He was paroled to ICE custody on November 13, 2012.
For the past few years, Mr. Reid has worked diligently to confront his substance addiction and mental health issues. Mr. Reid has recently been diagnosed with PTSD, which can be traced to the traumatic events of his childhood in Jamaica. He has sought the assistance of a clinical psychologist and has begun taking medicine to ameliorate his condition. See Johnson Decl., Exh. C. According to his psychologist, Dr. Baranoski, Mr. Reid has "expressed a willingness to seek treatment at the Connecticut Mental Health Center" if he is released, and "[h]is openness to accepting treatment provides a strong foundation for his successful return to the community." ld. Dr. Baranoski has also concluded that Mr. Reid "appreciates his need to remain abstinent from substances," and has "expressed a genuine desire to lead a productive and law-abiding life, becoming a role model for his daughter." Id.
Mr. Reid is the father of two children. Johnson Decl., Exh. A, 53-54. Both of Mr. Reid's children are U.S. citizens. Mr. Reid's son graduated from the University ofMaryland. Id. , 53. His daughter is high school student in New Haven. ld. , 54. Mr. Reid's children "love their father deeply, and would be devastated if they didn't have constant access to their father." Johnson Decl., Exh. T. He regrets the poor choices he has made, and he wants to return to work and to continue his education. See id. ,, 60-61; Johnson Decl., Exh. D ("[Mr. Reid] expects to become a productive member of society again. He ... hopes he can find work in the mortgage industry ... [and] is also pursuing his education as a paralegal."). During his most recent incarceration, Mr. Reid took courses that helped him to understand the consequences of his choices for himself and for others, and which examined the impact of crime on victims. Johnson Decl., Exh. A, 59; id. Exh. E. Mr. Reid has also sought spiritual guidance from Reverend
4 While he was incarcerated, Mr. Reid lost his New Haven properties to foreclosure. Johnson Dec!., Exh. A ~I 51.
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Joshua Pawelek ofthe Unitarian Universalist Society. Johnson Decl., Exh. A, 62; kL Exh. D.
Finally, Keith Thomas, a manager of two New Haven halfway houses, has confirmed that that
Mr. Reid will have housing if released from custody. See kL Exh. F.
II. REMOVAL PROCEEDINGS On November 13, 2012, Mr. Reid was released on parole from the custody ofthe
Connecticut Department of Correction and taken into custody by ICE. Johnson Decl., Exh. G. ICE has maintained custody ofMr. Reid since November 13,2012, detaining him in different facilities in Massachusetts. ICE presently holds Mr. Reid in the Franklin County Jail in Greenfield, Massachusetts.
Also on November 13, 2012, ICE filed a Notice to Appear (''NTA") with the Hartford Immigration Court, commencing removal proceedings. The NTA charged Mr. Reid with violations of8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i)5 on the basis of four nonviolent state controlled substances convictions. Johnson Decl., Exh. H. At an initial hearing in the Hartford Immigration Court on December 3, 2012, Mr. Reid, through undersigned counsel, conceded the factual allegations and charges in the NTA and stated his intention to apply for relief under CAT and to file a motion to terminate the proceedings on the ground that removal would be disproportionate. Id., Exh. I. Immigration Judge ("IJ") Philip Verrillo set a merits hearing for February 13,2013 and ordered briefing on CAT relief and the proportionality motion. !9.., Exh. J.
5 8 U.S.C. §§ 1227(a)(2)(A)(iii) states: "Any alien who-(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 12550) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable." 1227(a)(2)(B)(i) states: "Any alien who at any time after admission has been convicted of a violation of(of a conspiracy or attempt to violate) any Jaw or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 ofTitlc 21), other than a single offense involving possession for one's own usc of 30 grams or less of marijuana, is deportuble."
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At the February 13, 2013 hearing, Mr. Reid submitted his Form 1-589 application for reliefunder CAT, and his motion for termination. The hearing ultimately lasted twenty hours spread over four days, concluding on March 11, 2013. Mr. Reid was unshackled for the entire hearing. In all, five witnesses testified, including Mr. Reid and two expert witnesses. IJ Verrillo issued his decision on April 5, 2013, in which he denied CAT relief on the ground that Mr. Reid had not met his burden of proof; he did not, however, make an adverse credibility finding. IJ Verrillo also denied on jurisdictional grounds the motion to terminate because removal would be disproportionate.
Mr. Reid timely filed a Notice of Appeal with the Board oflmmigration Appeals ("BIA''), the administrative body that reviews the decisions of immigration judges. In it he alleges that the IJ made several errors requiring reversal and/or termination. Johnson Decl., Exh. L. Simultaneous briefing was originally due on June 20, 2013, but Mr. Reid's request for an extension was granted to July 11, 2013.
III. BOND PROCEEDINGS
Upon taking custody of an individual, ICE must make an initial custody determination, in which the agency may release the person on his own recognizance, set bond, or hold the person without bond. See 8 C.F.R. § 236.1. On November 13, 2012, ICE completed its initial custody determination and refused to set bond for Mr. Reid. Johnson Decl., Exh. M. ICE advised Mr. Reid that he could request review of its no-bond decision from an Immigration Judge, and he checked boxes on his Notice of Custody Determination for requesting this review. ld.
On June 10, 2013, Mr. Reid filed a motion in the Hartford Immigration Court requesting that IJ Verrillo conduct a bond redetermination hearing and set bond.6 Johnson Decl., Exh. 0.
6 On the same date, Mr. Reid, through undersigned counsel, also formally requested that 01-IS set bond. Johnson Decl., Exh. N. To date, ICE has not responded to this administrative request.
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The motion argued that Mr. Reid was entitled to a bond hearing, despite ICE's position that an individual with an aggravated felony conviction is ineligible for bond per 8 U.S.C. § 1226(c) even when subjected to prolonged detention, because courts across the country, including this
Court, have overwhelmingly rejected ICE's construction of8 U.S.C. § 1226(c). 1s.t. Mr. Reid
also explained in his motion that this Court, in Bourguignon, had previously held that 8 U.S.C. § 1226(c) required the only other IJ in Hartford Immigration Court to conduct a bond hearing for a
person detained for a prolonged period pursuant to the statute, and ordered the IJ to do so. 1s.t.
The Immigration Court scheduled a bond hearing for June 13, 2013. Johnson DecI., Exh. P. On the morning ofJune 13, 2013, ICE requested a continuance, which was granted to June 17, 2013 without Mr. Reid's consent.~. Exhs. K, Q.
The bond hearing was rescheduled for June 17, 2013, and conducted by IJ Verrillo at the
Hartford Immigration Court. ld., Exh. R. Mr. Reid was escorted into the hearing by two law enforcement officers with shackles around his hands, waist, and feet. Declaration of Matthew Vogel dated July 1, 2013("Vogel Decl."), ~ 4. Counsel for Mr. Reid requested that his hands be unshackled for the duration of the hearing. Declaration of Maureen Furtak dated July 1, 2013, Ex. A at 2:23,_ IJ Verrillo refused to consider this request, deferring instead to ICE counsel, who insisted that the IJ lacked the authority to order Mr. Reid unshackled. Id. 3:1; 4:14-18. ICE offered no evidence that Mr. Reid might be dangerous or a flight risk, but stated only that he would be shackled pursuant to a "discretionary" ICE policy to shackle all detainees recently adopted because of an alleged incident "somewhere in the [same] building." Id. 3:7-8; 3:20-23.
During the hearing, Mr. Reid challenged ICE's adherence to a statutory interpretation of 8 U.S.C. § 1226(c) this Court had previously ordered unauthorized in Bourguignon. In response, ICE counsel argued that the IJ was not required to follow Bourguignon. Id. 7:12-19; 25:18-19. IJ
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Verrillo determined that ICE was detaining Mr. Reid pursuant to 8 U.S.C. § 1226(c), and at the end of the hearing, denied Mr. Reid's motion for bond redetermination from the bench. lJ Verrillo reasoned that, under 8 U.S.C. § 1226(c), he lacked jurisdiction to make a bond redetermination in Mr. Reid's case, notwithstanding this Court's decision in Bourguignon and the many other judicial opinions that have rejected this interpretation of the statute. Johnson Dec!., Exh. S; Furtak Decl., Exh. A at 30:2-3.
ARGUMENT I. AS THIS COURT HAS HELD,§ 1226(c) REQUIRES AN INDIVIDUALIZED
BOND HEARING WHEN DETENTION IS "UNREASONABLE." To avoid a statutory construction of8 U.S.C. § 1226 that would violate the Due Process Clause ofthe Fifth Amendment, this Court interpreted § 1226(c) as prohibiting no-bond detention once an immigration detainee's detention becomes "unreasonable" and there is "no reasonable likelihood ... that the issue of his removal will be finally resolved in the foreseeable future." Bourguignon v. MacDonald, 667 F. Supp. 2d 175, 184 (D. Mass 2009). Mr. Reid "has been held for an unreasonable period of time" under any definition of the term. Id. Moreover, "no reasonable likelihood exists that the issue of[Mr. Reid's] removal will be resolved in the foreseeable future." Id. Accordingly, this Court should order a bond hearing for Mr. Reid.
A. 8 U.S.C. § 1226 Must Be Construed To Avoid Constitutional Infirmities. The Due Process Clause "forbids the government to infringe certain 'fundamental' interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302 (1993) (original emphasis). Freedom from detention is unquestionably a liberty interest of the highest order and one protected by the Due Process Clause. In Zadvydas v. Davis, the Supreme Court held that a noncitizen's "[f]reedom from imprisonment-from government custody, detention, or other
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forms of physical restraint-lies at the heart of the liberty that [the Due Process] Clause protects," and thus concluded that, "[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem." 533 U.S. 678, 690 (2001). Therefore, in order to hold a person in prolonged detention, the government must have "special justification ... [that] outweighs the individual's constitutionally protected interest in avoiding physical restraint." ld. at 690 (internal citations omitted). Because an interpretation of8 U.S.C. § 1226(c) that authorizes mandatory, indefinite detention, without an opportunity for an individualized bond determination would raise serious a question as to the statute's constitutional validity, this Court should read 8 U.S.C. § 1226(c) to preclude such prolonged, no-bond detention, just as it did in Bourguignon, 667 F. Supp. 2d at 184; see also Flores-Powell v. Chadbourne, 677 F. Supp. 2d
455, 478 (D. Mass. 2010) (Wolf, J.) (ordering bond hearing where "the period of detention has
violated the implicit statutory reasonableness requirement of § 1226(c)"). Unreasonably prolonged detention of persons is unconstitutional under the Fifth
Amendment's Due Process Clause. In Zadvydas, the Supreme Court interpreted the detention statute at issue to authorize post-removal period, no-bond detention only if removal was "reasonably foreseeable." 533 U.S. at 699. The Court held that six months of post-removal period detention was presumptively valid, but that after six months, if a person ''provides good reason to believe that there is no significant likelihood of removal," continued detention becomes presumptively invalid. Id. at 680; see Bourguignon, 667 F. Supp. 2d at 181 ("the majority in Zadvydas .... noted that a law 'permitting indefinite detention of an alien would raise a serious constitutional problem."') (quoting Zadvydas, 533 U.S. at 690); see also Flores-Powell, 677 F. Supp. 2d at 469 (applying Zadvvdas in habeas petition challenging detention purportedly
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authorized by§ 1226(c)); Sengkeo v. Horgan, 670 F. Supp. 2d 116, 123 (D. Mass. 2009) (Gertner, J.) (same).
Similarly, when the Supreme Court affirmed the facial constitutionality of the very detention statute at issue in this case, 8 U.S.C. § 1226(c), in Demore v. Kim, the majority's holding rested upon the conclusion that no-bond detention under the statute was limited to the "brief period necessary for ... removal proceedings." 538 U.S. 510, 513 (2003); see Bourguignon, 667 F. Supp. 2d at 182 ("Nothing in the majority opinion in Demore suggested that detentions under§ 1226(c), whatever its language, could be protracted or indefinite.").
Furthermore, Justice Kennedy's concurring opinion in Demore, which provided the crucial fifth vote for the majority, sets further limits on the type of detention§ 1226(c) may authorize. Bourguignon, 667 F. Supp. 2d at 182 n.9 (noting that "[a]part from making explicit the 'unreasonable or unjustified' qualification implicit in the Chief Justice's opinion, however, it is hard to [know] why Justice Kennedy took the trouble to pen his separate opinion."); see id. at 182. Justice Kennedy explicitly interpreted§ 1226(c) to include a reasonableness limitation on the duration of detention, so as to avoid an interpretation of the statute that would violate the Due Process Clause; without such a reasonableness requirement, the statute would not comport with the requirements of substantive due process. Id.; see Demore, 538 U.S. at 532 (Kennedy, J., concurring) ("a lawful permanent resident ... could be entitled to an individualized determination as to his risk of flight and dangerousness ifthe continued detention became unreasonable or unjustified."). Justice Kennedy's decision to join the Demore majority was predicated on his "[f]inding no unreasonableness on the facts before the court in Demore." Bourguignon, 667 F. Supp. 2d at 182.
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Both the Demore majority and Justice Kennedy's concurrence implicitly apply the canon of constitutional avoidance to read § 1226 in light of the fact that the "Due Process Clause prohibits arbitrary deprivations of liberty." Demore, 538 U.S. 532 (Kennedy, J., concurring); see also Zadvydas, 533 U.S. at 689 (discussing application of canon of constitutional avoidance to immigration statutes). The federal courts "are obligated to follow the doctrine of constitutional avoidance, under which federal courts are not to reach constitutional issues where alternative grounds for resolution are available." Am. Civil Liberties Union of Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013). In light of the constitutional infirmities of§ 1226, this Court must construe§ 1226 so as to allow Mr. Reid a bond hearing.
Indeed, this Court has concluded that "the clear import of the Demore decision is not that an alien can be detained indefinitely under§ 1226(c) while deportation proceedings are pending, without the right to a bond hearing, but merely that an alien can be detained without a hearing so long as the detention is reasonable, by which the [Supreme] Court meant (among other things perhaps) of limited duration." Bourguignon, 667 F. Supp. 2d at 182. Moreover, Bourguignon is consistent with the interpretation of other courts within this District as to§ 1226(c). ''[D]istrict courts in this circuit have concluded that§ 1226(c) includes an implicit requirement that 'removal proceedings, and the detention that accompanies them, be concluded within a reasonable time.'" Flores-Powell, 677 F. Supp. 2d at 470 (citing Sengko, 670 F. Supp. 2d at 126); see also Ortega v. Hodgson, No.1 1-cv-10358-MBB, 2011 WL 4103138, at *7 (D. Mass. Sept. 13, 2011) (Bowler, Mag. J.) (noting that prolonged immigration detention purportedly authorized by§ 1226(c) "appears unconstitutional"); cf. Winkler v. Horgan, 629 F. Supp. 2d 159, 161 (D. Mass. 2009) (Saris, J.) (denying the government's motion to dismiss where "the length of detention in these circumstances-where the detention is not brief and removability is not
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clear-raises colorable due process concerns"). Just as in Bourguignon, Flores-Powell, Sengkeo, Ortega, and Winkler, this Court should follow the Supreme Court in both Zadvydas and Demore, and reject Mr. Reid's prolonged no-bond detention by interpreting 8 U.S.C. § 1226(c) to authorize mandatory detention only for a reasonable period.
B. § 1226 Cannot Authorize Mr. Reid's Prolonged, No-Bond Detention.
In construing 8 U.S.C. § 1226(c) to avoid "reach[ing] constitutional issues where alternative grounds for resolution are available," Am. Civil Liberties Union ofMass., 705 F.3d at 52, federal courts have interpreted Demore's requirement that no-bond detention be "reasonable" in two different ways.
In Rodriguez v. Robbins, the U.S. Court of Appeals for the Ninth Circuit read§ 1226(c) to contain "an implicit reasonable time limitation," -- F.3d --, 2013 WL 1607706, at *6 (9th Cir. Apr. 16, 2013) (quoting Zadvydas, 533 U.S. at 682). Following the logic ofZadvydas, Rodriguez holds that the government's ability to detain an individual under§ 1226(c) is limited to six months. ld. at 6-7. Under Rodriguez, after six months the government's detention authority shifts to§ 1226(a), requiring the government to provide the detainee with an individualized bond determination. ld.; see 8 U.S.C. § 1226(a); 8 C.F.R. § 1236.1(d)(l) (providing for individualized bond determinations under§ 1226(a).
Rodriguez's bright-line, six-month rule comports with a consensus among the federal courts that six months marks the outer boundary of the "brief period necessary for ... removal proceedings." Demore, 538 U.S. at 513, 523.ln Bourguignon, this Court stated that a "sevenmonth detention period still exceeds the brief time frame contemplated by Chief Justice Rehnquist in Demore." Bourguignon, 667 F. Supp 2d at 183; see also Sengkeo, 670 F. Supp 2d at 127 (comparing habeas petitioner's length of detention to the statement in Demore that the
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"average time for detention with BIA appeals is just under six months"). Other courts have granted bond hearings shortly after detention passes the six-month mark. See Parlak v. Baker. 374 F. Supp.2d 551, 561-62 (B.D. Mich. 2005) (eight months) vacated as moot. No 05-2003, 2006 WL 3634385 (6th Cir. 2006); Alii v. Decker, 644 F. Supp.2d 535, 537-38 (M.D. Pa. 2009) (nine months); see also Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011) (noting, while declining to establish a bright-line, six-month rule, that the "constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues past th[e] thresholds" established in Demore).
The Third and Sixth Circuits have declined to adopt a bright-line time limitation and instead construed§ 1226(c) to permit only "reasonable" detention. See Diop, 656 at 231 ("[W]e conclude that[§ 1226(c)] implicitly authorizes detention for a reasonable amount oftime, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community."); Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003) ("when actual removal is not reasonably foreseeable, criminal aliens may not be detained beyond a reasonable period ...").These opinions stress that courts must conduct a "fact-dependent inquiry requiring an assessment of all the circumstances of any given case" when considering a habeas challenge to detention purportedly authorized by§ 1226(c). Diop, 656 F.3d at 234.
While the First Circuit has not addressed the reasonableness of prolonged detention under § 1226(c), every district court in the First Circuit to have issued a published decision on the permissible length of prolonged, no-bond detention under§ 1226(c) has interpreted the statute to require limitations on the duration of detention, including this Court. See Flores-Powell (holding
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22-month detention violated implicit reasonableness requirement in§ 1226(c)); Sengkeo (20month detention unreasonable); Bourguignon (27-month detention unreasonable); see also Ortega (20-month detention "appeared unconstitutional"); Winkler, 629 F. Supp. 2d at 160 (denying government's motion to dismiss where petitioner had been detained for l0 months"more than twice" the amount of time found to be "brief' in Demore).
At bottom, the Ninth Circuit approach in Rodriguez and the fact-dependent approach as exemplified by Diop articulate the same principle: § 1226, as a matter of statutory construction, requires that immigration detainees be afforded a bond hearing once their detention becomes prolonged. For the purposes of the instant petition, it is irrelevant whether this Court defines "prolonged" as exceeding six months, as in Rodriguez, or as consisting of"unreasonabl[y]" long detention in a case where there is "no reasonable likelihood" of removal, as in Bourguignon. Mr. Reid prevails under either theory and accordingly should receive an individualized bond hearing.
C. Under Any Construction of§ 1226, Mr. Reid Has A Right To A Bond Hearing.
Under the Ninth Circuit's bright-line construction of§ 1226 in Rodriguez, Mr. Reid is entitled to a bond hearing. As of the filing ofthis petition, the government has detained Mr. Reid pursuant to§ 1226 for nearly eight months, exceeding the six-month limitation established in Rodriguez. See Rodriguez, slip op. at *8. Mr. Reid is thus entitled to a bond hearing under this construction of§ 1226.
Mr. Reid also prevails under the fact-dependent reasonableness test. The inquiry begins by comparison of Mr. Reid's facts to those in Demore. See Diop, 656 F.3d at 234 (comparing length of detainee's detention to the "month and a half, and five months at maximum ... thresholds" in Demore); Bourguignon, 667 F. Supp. 2d at 182 (noting Demore majority's "repeat[ed]" references to "limited duration" of detention during pendency of immigration
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proceedings). The statistics in Demore refer to "an average time of 47 days and a median of 30 days" that Supreme Court stated were necessary for the government to process a case before the IJ and "the minority of cases in which the alien chooses to appeal," an average of an additional four months. Demore, 538 U.S. at 529-30. By comparison, Mr. Reid's proceedings before the IJ lasted 114 days, more than three times the median length of an 1J proceeding according to Demore. Moreover, Mr. Reid's appeal to the BIA will not be fully briefed until 98 days have elapsed from the entry of the IJ's decision, nearly carrying his detention during his appeal to the four month mark cited in Demore. Furthermore, unlike the petitioner in Demore, whose deportability the majority assumed was "uncontested," see Bourguignon, 667 F. Supp. 2d at 181, Mr. Reid is vigorously contesting his removal from the United States.7 By reference to Demore itself, Mr. Reid's detention is clearly prolonged and thus unreasonable.
Beyond direct comparison to Demore, district courts in the First Circuit have repeatedly looked to the anticipated length of further removal proceedings. These courts have held that actual removal was not foreseeable when either the petitioner or the government had appealed to the BIA and further appeals to the circuit court were anticipated. See e.g., Bourguignon, 667 F. Supp. 2d at 183-84 ("Reckoning the possibility of an appeal to the Second Circuit by whichever party may be unhappy with the eventual outcome ofthe appeal now pending before the BIA, whenever that happens, a final decision may be many months away"); Sengko, 670 F. Supp. 2d at 128-29 ("[Petitioner's] experience with the appellate process indicates that it could be many more months or even years before her case is fully resolved"); Ortega, 2011 WL 4103138, at *7 ("Here, although there will be an end point when the BIA renders a decision, it is unclear
7 Mr. Reid does not dispute that he has been convicted of an aggravated felony as defined in 8 U.S.C. § 110l(a)(43). Rather, he asserts that he cannot be removed because he is entitled to CAT relief. As in Bourguignon, "[t]his distinction does not affect the instant analysis, however, because it is the fact that [Mr. Reid's] claim casts doubt on the likelihood he can be deported to [Jamaica]-not the claim's specific underpinnings-that provides the basis for distinguishing this case fi·om Demore." Bourguignon, 667 F. Supp. 2d at 183 n.IO.
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whether or when that will take place. It is also unclear if petitioner will appeal the decision if unfavorable."). As in these cases, there is "no end in sight" to the resolution of Mr. Reid's

appeal to the BIA. Bourguignon. 667 F. Supp.2d at 184. Further, resolution of the BIA appeal is no guarantee of the end of Mr. Reid's
immigration case. Ifthe BIA remands the case to the IJ for further proceedings, those proceedings could stretch on even longer. Should the BIA affirm the IJ's adverse decision, Mr. Reid will have thirty days to file a Petition for Review ("PFR") with the Second Circuit. As of October 2012, there were "more than a thousand" Petitions for Review ofBIA orders pending in the Second Circuit. In re Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit, 702 F.3d 160, 160 (2d Cir. 20 12). Moreover, all immigration PFRs filed in the Second Circuit are currently subject to an automatic mandatory 90-day tolling order before a briefing schedule is even issued to the litigants. See id. at 162. Thus, while forecasting the precise length of future proceedings before the Second Circuit is not possible, it appears that, as in Sengkeo, resolution of Mr. Reid's entire case will require "many more months

or even years." Sengkeo, 670 F. Supp.2d at 128-29.

II.

AAPRBFOFSOELNROTDNIGANECGDOHDNIESMTTAIETNNUTITNIIODONINVAVIDILOUILNAATLTEIEZRSEPDTRHEBTEOANFTIDFIOHTNHEAOARMFI§NEGN12D,2MM6(RcE).NRTE. ID'S

Absent an interpretation of 8 U.S.C. § 1226(c) that avoids constitutional problems, Mr.

Reid's prolonged, no-bond detention violates his due process rights. The First Circuit has held

that "aliens are··· entitled to due process." Aguilar v. U.S. Customs and Enforcement Div. of

the Dep't of Homeland Sec., 510 F.3d I, 13 (lst Cir. 2007); see also Saakian v. INS, 252 F.3d

21, 24 (1st Cir. 2001) (same). Substantive due process prohibits government infringement upon

a fundamental liberty interest unless such infringement is "narrowly tailored to serve a

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compelling government interest." Reno v. Flores, 507 U.S. 292, 302 (1993). Freedom from physical restraint is one such fundamental liberty interest that falls within the ambit of substantive due process protection. See Zadvydas, 533 U.S. at 690.
Under Demore, the government's interest in prolonged no-bond detention is limited to the detention of a narrow group of noncitizens for a reasonable duration of time and where removal is not contested. See 538 U.S. at 526, 527. However, the government's interest in prolonged no-bond detention that was found acceptable in Demore does not authorize detention of an unreasonable duration where removal is not foreseeable. See Sengkeo, 670 F. Supp. 2d at 126 ("In light ofthe language in Demore [and] Justice Kennedy's concurrence ... the Court cannot accept the government's position that pre-removal detention is exempt from the bedrock due process principles relied upon in Zadvydas."). This is especially true of Mr. Reid, a longtime legal permanent resident honorably discharged from the U.S. Army Reserve, who is vigorously pursuing a meritorious claim for relief from removal, and who is experiencing acute mental health issues while detained. Although Mr. Reid has been detained for nearly eight months, he has not received an individualized bond hearing to determine whether he should be released from detention. Consequently, Mr. Reid's continued detention impermissibly infringes upon his fundamental substantive due process rights.
Furthermore, ifthe Court does not interpret 8 U.S.C. § 1226(c) to require that no-bond mandatory detention be only for a reasonable period of time, Mr. Reid's continued detention under this statute violates his right to procedural due process as well. In assessing a procedural due process challenge, this Court must consider the private and government interests at stake, and the risk of an erroneous deprivation of the private interest under the challenged procedures,
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together with the probable value, if any, of additional or substitute procedural safeguards. See Mathews v. Eldridge, 424 U.S. 319, 335 {1976).
Mr. Reid has a substantial and fundamental interest in his own liberty. Furthermore, because Mr. Reid is neither dangerous nor a flight risk, see infra, Section V, the risk of erroneous deprivation of liberty without the additional procedural safeguard of an individualized bond hearing is extremely high in his case. By contrast, the fiscal and administrative burden to the government in providing Mr. Reid with a bond hearing is slight. Citing EOIR statistics, the Supreme Court in Demore noted that in 85% of the cases in which persons are detained pursuant to § 1226(c), removal proceedings are completed in a median time of one month and an average time of less than two months. Demore, 538 U.S. at 529. In the remaining 15% of cases that are appealed to the BIA, proceedings are concluded in an average of four months. Jd. Mr. Reid's detention of nearly eight months falls within the minority of cases that involve detention for periods significantly longer than the 47-day period cited by the Demore court, and therefore courts will only infrequently have to expend resources in such instances, relative to the overall number of individuals subject to such detention. Moreover, bond hearings themselves are typically very brief events in Immigration Court, and any additional governmental cost in holding such hearings will likely be more than offset by government savings in the expense of detention for those respondents released on bond.
Because ofthis, Mr. Reid's fundamental interest in liberty greatly outweighs the slight burden to the government of holding bond hearings in the cases of those persons detained pursuant to 8 U.S.C. § 1226(c) past the "limited period" approved in Demore. In addition, the risk of erroneous deprivation of Mr. Reid's liberty interest without the additional procedural safeguard of a bond hearing is very high. Thus, continued detention under§ 1226(c) violates Mr.
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Reid's procedural due process rights absent a constitutional interpretation of the statute affording him an individualized bond hearing.
III. TO AVOID VIOLATING THE EIGHTH AMENDMENT,§ 1226(c) MUST BE CONSTRUED AS AUTHORIZING PROLONGED NO-BOND DETENTION ONLY TO ADVANCE A COMPELLING STATE INTEREST OTHER THAN PREVENTION OF FLIGHT.
This Court must interpret 8 U.S.C. § 1226(c) to avoid constitutional difficulties arising not only under the Due Process Clause, but under the Excessive Bail Clause ofthe Eighth Amendment as well. This clause prohibits the government from setting conditions of release or detention that are "'excessive' in light ofthe perceived evil." United States v. Salerno, 481 U.S. 739, 754 (1987); see U.S. Const. amend. VIII. To avoid conflict with the guarantees of the Eighth Amendment, § 1226(c) must be construed as authorizing no-bond detention only when there exists a compelling government interest other than the prevention of flight, and further, where such detention is limited in length and is preceded by sufficient procedural safeguards. Because the government has no compelling interest in the no-bond detention of Mr. Reid, his continued detention, without opportunity for an individualized bond hearing, is not authorized by 28 U.S.C. § 1226(c). See generally Bolante v. Keisler, 506 F.3d 618,619 (7th Cir. 2007) (Posner, J.) ("[T]he Supreme Court has suggested that the bail clause requires that the Government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil from releasing the person. Otherwise the government could circumvent the bail clause simply by refusing to release detainees on any condition.") (internal citations omitted).
To avoid Eighth Amendment Excessive Bail Clause concerns, 8 U.S.C. § 1226(c) must be construed to authorize mandatory no-bond detention only when the Government demonstrates a compelling interest other than the prevention of flight, and only pursuant to procedures comporting with minimum guarantees of fundamental fairness and due process. Because the
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government cannot make such a showing in Mr. Reid's case, it would violate the Eighth Amendment to construe§ 1226(c) as requiring mandatory no-bond detention.
The Excessive Bail Clause states that "excessive bail shall not be required." U.S. Canst. amend. VIII. The provision is fully applicable in removal proceedings. As the Supreme Court has explained, bail is implicated "when there is a direct government restraint on personal liberty, be it in a criminal case or in a civil deportation proceeding. The potential for governmental abuse which the Bail Clause guards against is present in both instances ...." Browning-Ferris Indus. ofVermont. Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 n.3 (1989); see also U.S. ex rei. Potash v. Dist. Dir. oflmmigration and Naturalization at Port ofNew York, 169 F.2d 747,751 (2d Cir. 1948) ("[T]he general spirit of our institutions make it improbable that Congress intended to give the Attorney General unlimited power over the admission to bail of aliens against whom deportation proceedings are brought"): U.S. ex rei. Klig v. Shaughnessy, 94 F. Supp. 157, 160 (S.D.N.Y. 1950) ("It is not unappropriate [sic] to refer here to the Eighth Amendment ... , which prohibits the imposition of excessive bail. Certainly, the principle inherent in that amendment applies to deportation proceedings, whether or not such proceedings technically fail [sic] within its scope."); see also Kayla Gassman, Unjustified Detention: The Excessive Bail Clause in Removal Proceedings, 4 Am. Univ. Crim. Law Brief35 (2009) (arguing that § 1226(c) violates Eighth Amendment because mandatory detention without individualized findings of dangerousness or risk of flight is "clearly unreasonable" means of advancing government interests in ensuring non-citizens appear for proceedings and protecting community from danger).
The Supreme Court has interpreted the Excessive Bail Clause as requiring that the government's proposed conditions of release or detention not be '"excessive' in light of the
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perceived evil." Salerno, 481 U.S. at 754. The Court held in Salerno that, "[t]o determine whether the Government's response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response." Id. Specifically, the Court concluded, "[t]hus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more." Id. (emphasis added). Only ''when Congress has mandated detention on the basis of a compelling interest other than prevention of flight ... [does] the Eighth Amendment ... not require release on bail." ld. at 754-55. Applying Salerno to the instant case,§ 1226(c) must be construed to require a compelling governmental interest in detention other than the prevention of flight.
Comparison between§ 1226(c) and the statute at issue in Salerno is instructive. In Salerno, the Supreme Court upheld the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., against an Eighth Amendment challenge only upon finding that the Act was narrowly focused on a particular set of circumstances in which the government's interests are "overwhelming," id. at 750, and moreover, that the statute's substantive reach was circumscribed by "numerous procedural safeguards," id. at 755. The Bail Reform Act authorizes pre-trial detention only if the government demonstrates by clear and convincing evidence at an adversary hearing that no conditions of release "will reasonably assure ... the safety of any other person and the community." 18 U.S.C. § 3142(e); Salerno, 481 U.S. at 741 (emphasis added). There is no comparable detention hearing, adversarial or otherwise, under 8 U.S.C. § 1226(c). 8
8 The hearing available to a noncitizen under Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999), is for the sole purpose of determining whether an individual is properly included within the class of individuals subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). See Demore, 538 U.S. at 532 (Kennedy, J., concurring) (citing Joseph). If an individual is found to be subject to mandatory detention, there is no further determination in the Joseph hearing of whether the individual may be released on bond. Therefore, the Joseph hearing is not the type of detention hearing contemplated in Salerno, in which the government must show that no conditions of release would reasonably assure the safety of any other person and the community. A few district courts have r~jected Eighth Amendment challenges to 8 U.S.C. §1226(c). but they typically have done so without careful examination of the crucial differences between the Bail Reform Act and 8 U.S.C. § 1226(c). See. e.g., Ozah v. Holder, No.3: 12-CV-
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The Bail Reform Act goes on to provide additional procedural protections. For instance, at the mandatory adversarial hearing, the defendant is accorded the right to counsel at government expense, to testifY and present witnesses and evidence, and to cross-examine the government's witnesses. 18 U.S.C. § 3 142(f); Salerno, 481 U.S. at 742. After evidence is presented, the court determines what pretrial conditions the court can order. 18 U.S.C. § 3142(a); Salerno, 481 U.S. at 742. Furthermore, the court may order no-bond detention only when it concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community or any other person." 18 U.S.C. § 3142(e); Salerno, 48 I U.S. at 742. In making this determination the court is obligated to consider, inter alia, the nature and seriousness of the charges, the substantiality of the government's evidence, the nature and seriousness ofthe danger posed by defendant's release, as
well as the defendant's "background and characteristics." 18 U.S.C. § 3142(g); Salerno, 481 U.S.
at 742-43. The court's findings must be supported by "clear and convincing evidence," 18 U.S.C. § 3 142(f), in the form of written findings of fact and a statement of reasons, 18 U.S.C. § 3142U); Salerno, 481 U.S. at 742.
The Bail Reform Act also contains statutory time limitations on the maximum length of pretrial detention. Salerno emphasized that "the maximum length of pretrial [no-bond] detention is limited by the stringent time limitations of the Speedy Trial Act." 481 U.S. at 747; see Speedy Trial Act, 18 U.S.C. § 3161 et seq. This statutory time limitation on the maximum length of permissible pretrial detention, which has no analogue in the immigration detention context, is yet another critical constraint on pretrial detention authorized by the Bail Reform Act, in addition to
337, 2013 WL 709192 (E.D. Va. Feb. 26, 2013); Martinez v. Aviles, No. 10-5083, 2010 WL 4064797, at *7 (D.N.J. Oct. 14, 2010); Arriola-Arenas v. Ridge, No. A. 04-1490,2004 WL 1175823, at* 1 (E.D.Pa. May 26, 2004); Avramenkov v.INS, 99 F.Supp.2d 210 (D. Conn. 2000); Marogi v. Jenifer, 126 F. Supp. 2d 1056 (E.D. Mich. 2000); Reyes v. Underdown, 73 F.Supp.2d 653 (W.O. La. 1999).
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. the narrow set of circumstances under which no-bond detention can be ordered under the Act
and the attendant procedural safeguards the Act requires.
The Supreme Court has not yet ruled on the conformity of8 U.S.C. § 1226(c) with the Eighth Amendment. 9 Nonetheless, in applying the constitutional reasoning of Salerno to the context of civil deportation proceedings, which equally deprive individuals of their fundamental liberty interests,~ Browning-Ferris Indus. of Vermont, 492 U.S. at 263 n.3, this Court should hold that the scope of mandatory no-bond detention authorized under § 1226(c) be constrained by similar constitutional requirements. This Court should thus interpret§ 1226(c) to provide for (1) an adversary detention hearing; (2) stringent time limitations; and (3) a narrowed class of persons rebuttably presumed dangerous. The canon of constitutional avoidance requires such an interpretation of§ 1226(c), as any interpretation to the contrary would raise serious Eighth Amendment concerns.
IV. MR. REID'S CONTINUED DETENTION, ABSENT A COMPELLING GOVERNMENT INTEREST OTHER THAN THE PREVENTION OF FLIGHT, VIOLATES THE EIGHTH AMENDMENT.
Absent a statutory construction of8 U.S.C. § 1226(c) requiring a compelling government interest in detention other than merely the prevention of flight, Mr. Reid's further detention under this statute violates the Eighth Amendment's Excessive Bail Clause. Salerno, 481 U.S. at 754. Mr. Reid's prolonged, no-bond detention violates the Eighth Amendment's protection against excessive bail because he has been detained for nearly eight months without being afforded an individualized bond hearing for determination of his potential flight risk and dangerousness to the community.
V. THIS COURT SHOULD ORDER MR. REID TO BE RELEASED ON BOND.
9 In Demore, the Supreme Court did not consider claims arising out of violations of the Eighth Amendment violations. See 538 U.S. at 522-23.
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In Flores-Powell, then-Chief Judge Wolf concluded that he had the authority to exercise equitable discretion to conduct a bond hearing after finding that a petitioner's prolonged, nobond detention under§ l226(c) was unreasonable. Reviewing the different remedies ordered by circuit and district courts in similar cases, the court found that "[t]he diversity in the remedies ordered suggests that, without articulating the rationale, judges have understood that they were exercising their equitable habeas power rather than responding to a statutory mandate." FloresPowell, 677 F.Supp.2d at 476. Flores-Powell found that the decision by this Court in Bourguignon to order an IJ to conduct a bond hearing, in which the detainee bears the burden of proof rather than the government, and the indication that the habeas court would conduct the hearing if the lJ failed to do so, supported the conclusion that courts understood themselves to be exercising their equitable habeas powers. Id. at 476-77.
To determine how to exercise its equitable power, the court in Flores-Powell looked to the reasoning of a Pennsylvania district court in Alii v. Decker, 644 F. Supp. 2d 535 (M.D. Pa. 2009). Alli described a series of factors that weigh in favor ofthe bail proceeding being conducted by the district court. These include consideration of the "circuitous and potentially lengthy" process that would result ifthe court ordered an IJ to conduct the bond hearing. As the Alii court reasoned, if it ordered a hearing before the IJ:
[A]n alien who has already demonstrated that his detention is no longer reasonable would remain detained pending an initial custody determination by the DHS district director, a hearing before an immigration judge, the IJ's decision, and a potential appeal to the BIA. In addition, ... the only recourse for an alien dissatisfied with the outcome of his bond hearing would be to return to court again and file another habeas action. Alii, 644 F. Supp. 2d at 541-42 (internal citations omitted). Alii also noted that a bond hearing conducted by the district court would serve the historic purpose ofthe writ, namely "to relieve detention by executive authorities without judicial trial," id. (citing Zadvydas, 533 U.S. at 699),
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and would "address[] Congress's concern that release decisions be based on traditional bail considerations such as risk of flight and danger to the community." M,_ at 541-42. In exercising its equitable discretion to conduct the bond hearing, the court in Flares-Powell determined that the potential for delay and the other Alii factors were "especially compelling" where proceedings in the Immigration Court had already been marked by "substantial and unnecessary delay." Flores-Powell, 677 F. Supp. 2d at 478.
In Mr. Reid's case, the Alii factors are also "especially compelling," given the refusal of executive branch officials to recognize this Court's opinion in Bourguignon and the published opinions by every other district court in Massachusetts to address the reasonableness of prolonged, no-bond detention under§ l226(c). While the government declined to appeal this Court's opinion in Bourguignon, ICE attorneys in Mr. Reid's case and other cases have returned to the Immigration Courts in Hartford and Boston to renew the argument rejected by this Court. In response, IJs, including IJ Verrillo in Mr. Reid's case, have refused to hold bond hearings. Where ICE attorneys and the IJ in this case have already been the cause of "substantial and unnecessary delay," and ordering the lJ to conduct a bond hearing would result in even more unnecessary delay, this Court should exercise its equitable discretion to conduct the bond hearing in Mr. Reid's case.
The government cannot meet its burden to prove that traditional bail considerations require Mr. Reid's continued detention. Rather, Mr. Reid, a lawful permanent resident and 30year-resident ofNew Haven, Connecticut, must be released on bail. Mr. Reid has significant community ties in New Haven, as well as a substantial support network. He has two U.S. citizen children, and his minor daughter lives in New Haven. As the mother of his daughter relates, Mark's children "love their father deeply, and would be devastated ifthey didn't have constant
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access to their father." Johnson Dec!., Exh. T. Mr. Reid has been offered housing in a sober
housing facility in the New Haven area if he is released. See llh, Exh. F. Rev. Pawelek, with
whom Mr. Reid has been in contact while in custody, has said that he "expect[s] to continue supporting Mr. Reid as he readjusts to life outside prison," including with financial support,
connections with social services providers, and spiritual support. .kL Exh. D. If released, Mr.
Reid plans to seek work in the mortgage industry, id., in which he worked prior to his incarceration. See id., Exh. A~ 51. Mr. Reid also plans to resume his paralegal studies to increase his options for gainful employment. Id., Exh. D.
Moreover, in addition to any conditions of supervision that this Court might place on him, Mr. Reid will remain under the supervision ofthe Connecticut Department of Pardons and Paroles for the foreseeable future. The State of Connecticut has stated its intention to place Mr. Reid in a "full parole program" with electronic monitoring. ld., Exh. G. Mr. Reid has accepted and will obey these conditions. Id.
In addition, while in custody, Mr. Reid has sought treatment for his mental health issues. Id., Exh. C. He has been diagnosed with PTSD, resulting from his traumatic experiences as a child in Jamaica, and depression. Id. Mr. Reid has begun treatment under the care of Dr. Baranoski ofthe Yale School ofMedicine, Department ofPsychiatry. Id. Dr. Baranoski has stated that Mr. Reid has expressed his willingness to seek treatment at the Connecticut Mental Health Center, if he is released, and "(h]is openness to accepting treatment provides a strong foundation for his successful return to the community." ld. Dr. Baranoski stated that Mr. Reid "appreciates his need to remain abstinent from substances," and has "expressed a genuine desire to lead a productive and law-abiding life, becoming a role model for his daughter." ld. Based on Dr. Baranoski's professional assessment ofMr. Reid, and that of Dr. Taiye Ogundipe, a
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psychiatrist and fellow in the Yale Law and Psychiatry Program, Dr. Baranoski believes that "Mr. Reid will not pose a danger to others if released from detention" and ''he does not present a current danger to himself." Id. Dr. Baranoski suggested that the current conditions of Mr. Reid's confinement have "greatly exacerbated his mental health issues," and, if released, he will benefit from access to high-quality mental health treatment and counseling free of charge at the Connecticut Mental Health Center. Id.
VI. MR. REID IS ENTITLED TO SUMMARY JUDGMENT ON HIS SHACKLING CLAIM. Mr. Reid challenges Defendants' blanket policy and practice of shackling him with metal
shackles about his wrists, ankles, and waist during his appearance in the Hartford Immigration Court, without an individualized showing of need. Forcing Mr. Reid to appear, confront witnesses, testify, and otherwise participate in the proceedings in chains violates his right to substantive and procedural due process under the Fifth Amendment. See Abadia-Peixoto v. U.S. Dep't. ofHomeland Sec., 277 F.R.D. 572 (N.D. Cal. 2011) (denying government motion to dismiss class action challenge to mandatory shackling of respondents in immigration proceedings). As detailed supra, Mr. Reid continues to be detained by DHS, his removal proceedings have not yet ended, and Mr. Reid seeks a bond hearing. At a minimum, if this Court grants Mr. Reid's habeas petition and orders a bond hearing in Immigration Court, Mr. Reid will be shackled by ICE before an immigration judge who disclaims all authority to order their removal. But see id. at 574-75 (rejecting government argument that challenge to shackling not ripe because immigration had not yet appeared for future hearing). Mr. Reid has suffered andunless the practice is enjoined-will continue to suffer physical and mental injuries, dignitary harms, and interference with his ability to participate fully and fairly in his potentially life-
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altering immigration proceedings. The facts of Mr. Reid's shackling are uncontestable. 10 for the reasons below, Mr. Reid is entitled to summary judgment in his favor.
Rule 56(a) provides that summary judgment shall be granted where "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Once the moving party has shown that no genuine issue of material fact exists, the non-movant must "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242,256 (1986). In so doing, the non-moving party "cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute." McCarthy v. Nw. Airlines. Inc.. 56 F.3d 313, 315 (1st Cir. 1995). A dispute is "genuine" if"the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party," and a fact is ''material" if"it is one that might affect the outcome of the suit under the governing law." Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150 (1st Cir. 2006) (quotation omitted).
At base, Defendants' indiscriminate shackling of Mr. Reid violates both procedural and substantive due process. Mr. Reid has an undeniable interest in freedom from physical restraint, such as that imposed by "shackles, chains, or barred cells," which has "always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Flores, 507 U.S. at 302. Defendants' shackling practice violated procedural due process because it deprived Mr. Reid of liberty without any individualized determination. Mr. Reid challenges Defendants' shackling practice on substantive due process grounds because his shackling, absent a showing that he posed a risk of escape or threat to security, is not "narrowly tailored to serve a compelling state interest." Id.
10 Mr. Reid has simultaneously filed a Motion for Summary Judgment containing a Statement of Undisputed Facts pursuant to L.R. 56.1.
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A. The Presumption Against Shackling During Criminal Trials Applies in the Immigration Court Context.
In the criminal context, it is well-settled that shackling a defendant during trial is a "severe remedy" warranted only for "extreme cases." Woodard v. Perrin, 692 F.2d 220,221 (1st Cir. 1982). Indeed, the Supreme Court has long held that ''no person should be tried while shackled ... except as a last resort." Illinois v. Allen. 397 U.S. 337, 344 (1970). More recently, the Supreme Court explained that shackling a defendant is inherently prejudicial because it implicates three "fundamental legal principles": I) the presumption of innocence, because shackles may prejudice the jury; 2) access to counsel, including the right to participate in one's defense and the right to testify; and 3) judicial responsibility for the dignity that preserves the judicial process. Deck v. Missouri. 544 U.S. 622, 630-31 (2005). Shackles and other physical restraints may be necessary in some circumstances for safety or to prevent escape, but "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination ... that they are justified by a state interest specific to a particular trial." Id. at 629 (emphasis added). In making such a determination, "a judge should consider less restrictive measures before deciding that a defendant should be shackled." Woodard, 692 F.2d at 221.
Shackling in the Immigration Court context also implicates these fundamental legal principles. The second and third Deck principles- access to counsel (including the right to participate in one's defense and to testify) and the dignity of the judicial process- are identical in immigration proceedings. Additionally, at least one U.S. Court of Appeals has acknowledged that the impact of restraints on the ability to fully participate in trial can be sufficiently prejudicial even absent jury exposure. In Gonzalez v. Pliler, the Ninth Circuit analyzed the use of a stun belt as a physical restraint on a criminal defendant and recognized that, even though the
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stun belt was not visible to the jury, it could have unconstitutionally prejudiced the defendant's ability to participate fully in his defense, communicate with counsel, and "concentrate adequately on his testimony because of the stress, confusion and frustration over wearing the belt." 341 F.3d 897, 903-05 (9th Cir. 2003). These reasons apply with equal force to the Immigration Court context.
Indeed, specifically in the Immigration Court context, at least one court has observed that the absence ofajury is not necessarily dispositive ofthe question ofwhether a blanket policy of shackling immigration detainees is justified. In denying the government's motion to dismiss in Abadia-Peixoto, a case which concerns precisely the same shackling allegations as Mr. Reid brings here, Judge Seeborg of the Northern District of California refused to adopt the government's position that a blanket shackling policy is automatically permissible when, as in Immigration Court, no jury is present. Relevant Ninth Circuit case law, Judge Seeborg held, "reveals that the permissibility of a blanket shackling policy turns on a number of factors, of which the absence of a jury is only one." Abadia-Peixoto, 277 F.R.D. at 576; see also United States v. Brandau, 578 F.3d I 064, I 065 (9th Cir. Cal. 2009) ("We have not, however, fully defined the parameters of a pretrial detainee's liberty interest in being free from shackles at his initial appearance, or the precise circumstances under which courts may legitimately infringe upon that interest in order to achieve other aims, such as courtroom safety.").
Here, the denial of counsel's request that Mr. Reid's shackles be removed during the June 17 hearing was in no way specific to Mr. Reid, nor did it have anything to do with the specific circumstances of his hearing. When undersigned counsel requested that IJ Verrillo have Mr. Reid's shackles removed, the IJ deferred to ICE. Rule 56.1 Statement ofUndisputed Facts
("Rule 56.1 Statement"), at 14. John P. Marley, DHS Counsel at the hearing, objected that the IJ
32

Case 3:13-cv-30125-MAP Document 2 Filed 07/01/13 Page 35 of 40
did not have the authority to direct the law enforcement officers accompanying Mr. Reid to remove his shackles, and refused to order them to do so himself. Id. at~ 5. Through Mr. Marley, ICE asserted that its decision whether or not to remove shackles is "discretionary" and refused to remove Mr. Reid's shackles. Id. at,, 6-7. As justification, ICE cited an alleged prior and unspecified security issue concerning another detainee- not Mr. Reid- stating that, "[a]pparently there was an incident recently somewhere in the building and the full detention procedures are going to stay in place for all people in ICE custody.... [I]t is an ERO policy. They are making it very clear that they're not going to change the policy for any particular case." Id. at,~ 7-8 (emphasis added). ICE had apparently adopted a policy or practice of mandating shackling for all detainees appearing in the Hartford Immigration Court because of this prior security issue: "it is ERO policy that all detainees who are detained will remain shackled while in the courtroom." Id. at~ 7 (emphasis added).
Such a policy harmed Mr. Reid and prejudiced his ability fully to participate in his own defense and his fundamental right to counsel. Mr. Reid was unable to read or write without great difficulty and physical strain while shackled; he was not able to bring his hands to counsel table to write, nor was he able to put his reading glasses on himself: Id. at~~ 9-1 0; Vogel Decl. at~[, 78.. In fact, because ofthe shackles, he required the assistance oftwo members ofhis legal team to put on and take off his reading glasses, just so that he could read legal papers supplied by his counsel. Id. at, 8. Such assistance not only greatly interferes with his ability to fully participate in his own defense and to adequately communicate with counsel, it is also thoroughly demeaning and dehumanizing for an otherwise capable adult to require such assistance merely to put on eyeglasses to read.
B. Mr. Reid's Shackling Violated Procedural Due Process.
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The balance of the familiar three-pronged Mathews v. Eldridge procedural due process analysis weighs heavily in favor of an individualized determination of risk before immigration detainees should be shackled in court. That analysis evaluates the individual's interests affected by the government action, the risk of an erroneous deprivation of those interests under the challenged procedures together with the probable value added by additional or alternative process, and the government's interest in its own procedures. Mathews, 424 U.S. at 335; see Starr v. Knierman, 474 Fed. App'x. 785,786 (1st Cir. 2012).
Mr. Reid has an undeniably strong liberty interest in being free from physical restraints, see Zadvydas, 533 U.S. at 690, and that interest is not diluted by the fact that he is currently in immigration detention. See Youngberg v. Romeo, 457 U.S. 307,321-23 (1982) (due process required for imposition of bodily restraints on person committed to mental institution). Second, Mr. Reid has strong interests in participating fully in his defense in his removal proceedings and in his access to counsel during those proceedings, interests severely limited by shackling, as detailed above.
The risk of erroneous deprivation of these interests under the challenged shackling practice is great, in part because ofthe complete lack of process, and this is evident in Mr. Reid's case. First, as detailed supra, Mr. Reid is detained pursuant to 8 U.S.C. § 1226(c) on account of non-violent drug convictions, and not because he has been determined to pose a danger or flight risk. Second, during the course of his prior immigration proceedings, spanning 20 hours over four days, Mr. Reid's shackles were removed so that he could participate in trial, testify, and communicate with counsel, and there were no incidents warranting reapplication of the shackles. Rule 56.1 Statement at~ 11. Third, two law enforcement officers accompanied Mr. Reid into the courtroom, stood near counsel table during the duration of the hearing, and escorted him out,
34

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thereby ensuring courtroom security. Id. at~ 2. At his June 17 hearing, however, none of this was considered; as explained by ICE, Mr. Reid was shackled under a blanket shackling policy, without regard to his circumstances or to less restrictive measures. ld., at~~ 7-8. Indeed, at the June 17, 2013 hearing, Mr. Reid was afforded no process whatsoever- he was not given an opportunity to be heard in support of his request, nor was he able to contest the government's denial of his request before a neutral decision maker. This lack of process only heightens the risk of erroneous deprivation.
These factors clearly outweigh the government's interest in its blanket shackling practice and any minimal burden imposed by additional procedures. While the government has a legitimate interest in maintaining courtroom safety, satisfaction of that interest does not require indiscriminate shackling without process. Particularly at the Hartford Immigration Court, the addition of individualized consideration and even minimal procedural safeguards prior to shackling during immigration proceedings would not burden the government, as there are only two Immigration Judges there, see http://www.justice.gov/eoir/sibpages/har/hannain.htm, minimizing the number of detainees in hearings at any given time.
Further, ICE's own 2011 Performance-Based National Detention Standards require detention facilities to employ an individualized "Custody Classification System." ICE is already making related individualized security assessments- adding procedures regarding shackling would not burden the agency. See ICE, 20 II Performance-Based National Detention Standards § 2.2, available at http://www.ice.gov/doclib/detention-standards/20 I llclassification system.pdf.
Consequently, due process requires at least some individualized procedure prior to the imposition of shackles during immigration court proceedings, and the denial of those procedures to Mr. Reid violated his due process rights.
35

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C. Mr. Reid's Shackling Violated Substantive Due Process. Mr. Reid also challenges his shackling on substantive due process grounds. Just as in the indefinite no-bond detention context, due process "forbids the government to infringe certain 'fundamental' interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno, 507 U.S. at 302 (original emphasis). Freedom from "physical restraint" is one of the interests that, the Supreme Court has held, "lies at the heart ofthe liberty that [the Due Process] Clause protects," Zadvydas, 533 U.S. at 690. Thus, shackling must be "narrowly tailored to serve a compelling state interest." Reno, 507 U.S. at 203; cf. Doe by Roe v. Gaughan, 617 F. Supp. 2d 1477, 1487 (D. Mass. 1985) (upholding use of shackling only because detainee found to be extremely assaultive). While ensuring courtroom safety and preventing flight are compelling state interests, per ICE's own explanation for its refusal to remove Mr. Reid's shackles, there was nothing narrowly tailored at all about Defendants' policy of blanket shackling that led to Mr. Reid being shackled during his June 17 hearing. Moreover, the Supreme Court has held that "government detention violates [the Due Process Clause] unless the detention is ordered in ... certain special and narrow nonpunitive circumstances, where a specialjustification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." Reno, 507 U.S. at 203 (internal citations and quotations omitted) (emphasis added). Thus, Defendants' interest in courtroom security notwithstanding, Defendants still need a "special justification" in order to shackle. There can be no such special justification in Mr. Reid's case; he has already demonstrated that he poses no security threat if he appears in immigration court unshackled. For these reasons, regardless of any process Defendants might use, Mr. Reid, who poses no threat of
36

Case 3:13-cv-30125-MAP Document 2 Filed 07/01/13 Page 39 of 40 dangerousness or escape, was arbitrarily deprived of his liberty in violation of substantive due process.
There can be no genuine dispute as to the material facts surrounding Mr. Reid's shackling at the June 17 hearing, nor can there be that such blanket shackling, without individualized consideration, violates both procedural and substantive due process. See Abadia-Peixoto, 277 F.R.D. at 576 (denying government motion to dismiss challenge to mandatory shackling policy in immigration court). If this Court grants Mr. Reid's habeas petition and orders the Immigration Court to hold a bond hearing, Mr. Reid's motion for summary judgment should also be granted, and his future shackling during his immigration proceedings should be enjoined absent an individualized showing of need.
37

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CONCLUSION Because his continued detention without an individualized bond hearing is not authorized by 8 U.S.C. § 1226(c) and violates the Due Process Clause ofthe Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment, Mr. Reid respectfully requests that this Court grant his petition for a writ of habeas corpus and order his release upon reasonable bond.
Date: July 1, 2013
Respectfully submitted,
Is/ Lauren Carasik
Lauren J. Carasik (Bar# 558918) Western New England University School of Law 1215 Wilbraham Road Springfield, MA 01119 Phone: (413) 782-1504 Linda Evarts, Law Graduate Intern Tassity Johnson, Law Graduate Intern Travis Silva, Law Graduate Intern MatthewS. Vogel, Law Graduate Intern Muneer I. Ahmad, Supervising Attorney* Michael J. Wishnie, Supervising Attorney* Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06511 Phone: (203) 432-4800 Fax: (203) 432-1426 Counsel for Mark A. Reid
*Motion for admission pro hac vice forthcoming
38

Case 3:13-cv-30125-MAP Document 2-1 Filed 07/01/13 Page 1 of 2
DECLARATION OF MATTHEW VOGEL
I, MatthewS. Vogel, under penalty ofperjury, declare as follows, pursuant to 28 U.S.C. § 1746:
1. I am a law graduate intern in the Worker and Immigrant Rights Advocacy Clinic at Yale Law School's Jerome N. Frank Legal Services Organization.
2. I am working on the case of Mr. Mark A. Reid under the supervision of Clinical Professors Muneer I. Ahmad and Michael J. Wishnie of Yale Law School.
3. On June 17, 2013, I was present at Mr. Reid's bond redetermination hearing before Immigration Judge Philip Verrillo at the Hartford Immigration Court.
4. When Mr. Reid entered the courtroom, he was escorted by two law enforcement officers and shackled at the hands, waist, and feet. His hands were shackled together and to his waist, and he shuffled slowly due to the feet restraints.
5. The law enforcement officers who escorted Mr. Reid into the courtroom remained standing near Mr. Reid, who was seated at counsel table, throughout the remainder of the hearing. They then escorted him from the courtroom after the hearing ended.
6. I was seated at counsel table next to Mr. Reid and witnessed first-hand the limitations imposed upon him by the shackles.
7. Due to those limitations, Mr. Reid's movement was severely restricted. I placed a yellow legal pad and pen on the table before Mr. Reid so that he could write notes to myself or to his counsel, Michael Wishnie, who sat on the other side of Mr. Reid. He was able to scribble only one sentence during the entire hearing, however, and then with great difficulty, as he was not able to move his hands up to counsel table because they were shackled to his waist.
8. So that he could read legal papers, I had to place Mr. Reid's reading glasses on his face after he struggled even to retrieve them from his pocket. When the hearing concluded, 1 removed Mr. Reid's glasses and observed Mr. Wishnie slide Mr. Reid's glasses back into a front pocket of his pants because Mr. Reid's shackles prevented him from doing so on his own.

Case 3:13-cv-30125-MAP Document 2-1 Filed 07/01/13 Page 2 of 2 9. I was also present for the more than 20 hours of CAT hearings spread out over 4 days
beginning Febmary 13, 2013 und concluding March 11, 2013, in the Hartford Immigration Court before Immigration Judge Verrillo. Upon request from counsel, ICE unshackled Mr. Reid for the duration of each of those hearings. There were no incidents which led ICE to reapply Mr. Reid's shackles during the hearings. I, Matthew S. Vogel, declare under the penalties and pains of perjury under the laws of the United States that the foregoing is tme and conect to the best of my knowledge. Executed on July 1, 2013
2

, ··-· ...... .. .

_,. ___ . . ... .

I

.. ,. ...........

Case 3:13-cv-30125-MAP Document 2-2 Filed 07/01/13 Page 1 of 32

DECLARATION OF MAUREEN FURTAK I, Maureen Furtak, under penalty ofperjury, declare as follows, pursuant to 28 U.S.C. § 1746:
1. I am a senior administrative assistant employed by the Jerome N. Frank Legal S~rvices
Organization at Yale Law School. 2. On Wednesday, June 26,2013, I received via· Federal Express a compact disc from the
Hartford Immigration Court. Also enclosed in the envelope was a letter from the Jerome N. Frank Legal Services Organization at Yale Law School, requesting the audio recording of Mark A. Reid's June 17, 2013 hearing at the Hartford Immigration Court. 3. I transcribed the audio filed to the best of my ability. The transcript I have prepared is
attached to this declaration. 4. The audio file I transcribed begins with the words, "Good Afternoon, this is Immigration
Judge Philip Verrillo presiding. Today is Monday, June 17, 2013. We are here before the Hartford Connecticut Immigration Court today in the custody redetermination proceedings for our respondent Mr. Mark Reid." 5. I retain the compact disc in my possession and am willing to make it available to the Court or the government upon request.

I, Maureen Furtak, declare States that the foregoin_g is

under the penalties true and correct to

and pains of perjury under the best of my knowledge.

the

laws

of

the

United

Lin~~~
Maureen Furtak

Executed on June 28,2013

1

. I

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Case 3:13-cy-30125-MAP Document 2-2 Filed 07/01/13 Page 2 of 32

i

I
I
EXHIBIT A

case 3:13-cv-30125-MAP Document 2-2 Filed 07/01/13 Page 3 of 32
COURT: Good Afternoon, this is Immigration Judge Philip Verrillo presiding. Today is 2 Monday, June 17, 2013. We are here before the Hartford Connecticut Immigration Court today 3 in the custody redetermination proceedings for our respondent Mr. Mark Reid. Our respondent is 4 physically present this afternoon with his counsel and representatives. On behalf of respondent 5 this afternoon, 6 WISHNIE: Good Afternoon Judge, Michael Wishnie. With me today are law student interns, 7 Tassity Johnson and Matt Vogel. I think actually they are now termed Law Graduates. 8 COURT: Great, Congratulations 9 WTSHNIE: Ms. Johnson will be handling today's hearing your honor. 10 COURT: Alright, and Good Afternoon everyone. 11 WISHNIE: Thank you 12 COURT: And on behalf ofDHS today, 13 MARLEY: John Marley 14 COURT: Very good and Mr. Reid, Good Afternoon. Alright, and so we received a request for a 15 custody redetermination in this case and I know, I wanted to just talk about preliminary matters 16 and preliminary issues up front and Mr. Marley I think one ofthe things you raised in your 17 request for continuance. You had asked for more time but I think I allowed your request to 18 continue but I granted a shorter time. I think one of the things you indicated was you didn't have 19 your file. 20 MARLEY: Our file was taken away from us by a file request from the National Records Center, 21 Judge. They're the office that responds to all FOIA requests. I understand that a FOIA request 22 was made in this matter very recently for the file and when we got the request for bond hearing 23 we put a request in for the file and we have not yet received our file.

case 3:13-cv-30125-MAP Document 2-2 Filed 07/01/13 Page 4 of 32
COURT: Okay, and Professor was that accurate. Was a FOIA made for DHS file? 2 WISHNIE: I believe so your honor. No your honor, I should say I do not know if that is the 3 request that triggered the procedure Mr. Marley has just described. 4 COURT: Alright, in any event 5 MARLEY: But there was a FOIA filing by the respondent? 6 WISHNIE: Yes I believe there was. 7 COURT: Alright, in any event, I did have a chance to read the motion for bond redetermination 8 and before we move forward with any hearing I think the first issue that we need to address is 9 this Court's authority to conduct a bond determination hearing because you, and please feel free 10 to jump in. My read of the motion is that you are now making the request to hold this hearing 11 pursuant to INA 236(a), just because ofthe amount of time and the way I interpreted the motion 12 was that at a certain point the respondent was held under INA 236(c) and that has now shifted 13 because ofthe length of time that has gone by and he is in custody and the likelihood that these 14 proceedings will not be completed in the near future and because ofthat you believe now things 15 transferred to INA section 236(a) and therefore the court would have authority. I know you cited 16 a number of cases. There were a number of circuit court cases. I think I did see a number of 17 Ninth Circuit cases. I believe I did see some District Court cases, some of the habeas cases that 18 were filed in the past giving, I believe granting authority to conduct a bond hearing. I want to 19 ask you was there, has this issue ever been addressed by the Second Circuit? 20 WISHNIE: Your honor before Ms. Johnson turns to that there are two other preliminary matters 21 that I wanted to address before we get even to the court's jurisdiction. 22 COURT: Okay 23 WISHNIE: First we would request that Mr. Reid be unshackled for the purpose of this hearing.
2

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COURT: And did you have an opportunity to talk with Mr. Marley on that request? 2 WISHNIE: I did your honor. 3 COURT: Mr. Marley? 4 MARLEY: My response was that although in past in the removal proceedings based on the 5 discretionary call by the individual detaining officers that that decision is completely 6 discretionary with the officers as to about whether they want him to remain shackled, they are 7 willing to release one hand for him to take notes during the hearing. That is a discretionary 8 decision solely for the officers who are here today. l would be glad to ask them and make a 9 request. 10 COURT: Alright, do you want an opportunity to consult with officers before, at this point? 11 MARLEY: Sure judge. 12 COURT: How much time do you need? 13 MARLEY: 37 seconds. 14 WISHNIE: Ok to be clear your honor the request is that both hands be unshackled. 15 COURT: Okay, l will let Mr. Marley consult with the officers. 16 WISHNIE: Thank you, 17 COURT: We will just go offthe record. 18 COURT: Okay 19 COURT: Mr. Marley have you had an opportunity to consult with the officers. 20 MARLEY: Yes Judge. If I could make an offer of proof, apparently it is ERO policy that all 21 detainees who are detained will remain shackled while in the courtroom. Apparently there was 22 an incident recently somewhere in the building and [end of track #1] the full detention 23 procedures are going to stay in place for all people in ICE custody.
3

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COURT: Okay so you are not inclined then to 2 MARLEY: it is not me Judge, ICE counsel, it is an ERO policy. They are making it very clear 3 that they're not going to change the policy for any particular case. 4 COURT: Alright, any response Professor? 5 WISHNIE: Your honor it is our position that this court has the authority over the people who 6 come before it and this court has the authority to order the unshackling if it chooses. The fact 7 that another respondent, or another individual may have had an incident in another matter on 8 another day we don't think should in any way limit the liberty of Mr. Reid to appear before you. 9 COURT: Let me ask you, I know you are making the argument that I have the authority. Do 10 you have any legal support for that proposition. 11 WISHNIE: No your honor, I don't have any citation for that. 12 COURT: Anything else, Mr. Marley on that issue 13 MARLEY: No sir, no sir. 14 COURT: Okay I am going to note both parties' position for the record but this court I don't 15 believe I have the authority and ifthere is nothing to reference my authority at this time I am just 16 going to find that I do not have the legal authority to order ERO, a DHS component ofDHS to 17 unshackle Mr. Reid at this point. So therefore the court will find that it just does not have the 18 legal authority to make that request on his behalf. But your position is noted. Reserve any rights 19 on behalf of the respondent. 20 WISHNIE: Thank you your honor. 21 WISHNIE: The second preliminary matter as the court knows from the telephone conversation 22 that the court conducted with myself and another attorney for ICE, who I think is here, Mr. 23 Walla. The position of respondent on DHS's request for a continuance to today was that in the
4

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ordinary course, as a matter of professional courtesy, that would have been granted, consented 2 to, I am sorry not granted, consented to by respondent. However, a position that Mr. Marley 3 took in an extension request in the direct appeal in this matter last week, apparently signaling an 4 intent by ICE to count days sought or acquiesced to by respondent, in what may be a 5 forthcoming habeas proceeding in this matter, against respondent, we had no choice but to 6 decline to consent against respondent. We had no choice but to decline to consent to that
7 request. 8 COURT: You are talking about the original the motion when you had filed the motion for a 9 custody determination. Mr. Marley put in a request to continue the proceeding. I think one was 10 that he was not available and I think another reason was the DHS file was not available. 11 WISHNIE: Right and as I had indicated on the phone, when your honor said we are not on the 12 record and I should make my record today, while ordinarily we would have consented to that 13 request, in light ofthe position apparently taken by Mr. Marley, respondent did not consent to 14 that request. We recognize that the court has allowed that request and here we are today. 15 COURT: And Mr. Marley any response. 16 MARLEY: Just confused. Not certain why not consenting to a continuance in removal 17 proceedings has anything to do with these bond proceedings. Although I will make my position 18 clear for the record if it wasn't made previously, is that prior to being served this bond motion 19 which makes it very clear that people are counting days and trying to make a determination that 20 based on how many days the respondent is detained certain triggers legal triggers come into play 21 changing people's detention and the authority of the District Court to intervene in his detention. I 22 was asked for my position on extending his detention by extending the briefing schedule, 23 unknowing that within days or hours later a motion to argue that his detention and the time of his
5

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detention was unconstitutional. So I was a little taken aback Judge when on the one hand one law 2 professor was trying to seek my assent to continue the case, drag this out, and keep this poor man 3 in custody, within hours 1 got a bond motion, by the way Mr. Marley, for every day this case gets 4 continued it is unlawful and unconstitutional detention. So, I was little taken aback by that so I 5 had to make my position that look I just can't consent to continuing the removal case for a 6 briefing schedule. I am not trying to be vindictive, not trying to be difficult, just trying to make 7 sure that we don't run afoul of any Ninth Circuit case law. 8 COURT: anything else Professor on that issue? 9 WISHNIE: I take Mr. Marley on his word, he says he is confused, I believe him. I think I have 10 made my record. 11 COURT: Alright, gentlemen given the circumstances I think we had received this motion for a 12 custody redetermination on June 11. The court I think initially in contacting the parties was 13 trying to schedule this for I believe did schedule this for June 13, to try and bring this case before 14 the court in expeditious fashion. But then we received your motion Mr. Marley, you indicated 15 that you are not available. I am aware that you were the trial counsel on this case. We spent a 16 number of days in total addressing Mr. [end oftrack #2] and I believe you were the primary 17 attorney involved on this case. Given the circumstances, particularly your unavailability, and the 18 court did in an exercise ofit's discretion grant your request and continued it till today for the 19 proceedings to move forward. I am going to note the parties' position, and Professor I indicated 20 as well that in scheduling this case that I would note your position for the record. It is so noted 21 but the court did exercise its discretion. I am going to stand by my prior decision. Anything else 22 on that issue. 23 WISHNIE: Nothing further your honor.
6

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MARLEY: Nothing from the government. 2 COUERT: Okay, so let's go back to the court's legal authority because I did take a look at your 3 motion for bond redetermination and I think I had asked you ifthere's any, I think number one 4 the court has to be, I want to discuss with the parties the court's authority to conduct this custody 5 redetermination hearing. Now I think the argument is that now the respondent is under the ambit 6 of236(a) ofthe INA because of the time frame he has been in detention. Has the Second Circuit 7 ever addressed this issue Ms. Johnson. 8 JOHNSON: No your honor, the Second Circuit hasn't had an opportunity to address the issue of 9 whether holding under 236(c) is unconstitutional due to the length of time that a person has been 10 detained. That question has not appeared before the Second Circuit. 11 COURT: Okay and what about the Board? Any Board cases that you saw or anything? 12 JOHNSON: Well your honor notwithstanding the BIA precedent, we believe particularly in light 13 ofthe Bourguignon case in the District of Massachusetts from 2009 I believe, where Judge 14 Straus who in this court said that he didn't have authority to hold a bond hearing for a person 15 detained under 236(c). In that instance the habeas court actually said that he did and ordered him
16 to hold a bond hearing. So we believe that based on that even that if Mr. Reid is not granted a
17 bond hearing today we will be pursuing the habeas option and in the same court we believe that 18 this court has the authority to make that decision rather than sort of waiting for the habeas court 19 to order it. 20 COURT: Mr. Marley let's hear your thoughts. 21 MARLEY: Fortune telling has never been one of my fortes, Judge, and I would strongly urge 22 the court not to engage in that practice trying to detennine what Judge Ponsor would or would 23 not do in the US District Court here in Springfield in this case, based on what might have
7

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happened in a similar case, similar not the same being the operative word. It really wouldn't 2 serve the court and wouldn't serve this particular case. There is no authority in the Second 3 Circuit and there is no authority in the BIA decisions to support that. 4 COURT: 1guess my question is if there's no authority in the Second Circuit on this issue and 5 there is not authority, Board authority, wouldn't that mean that the respondent would just be 6 under 236(c) and subject to mandatory detention Ms. Johnson? 7 JOHNSON: Again your honor based on the 2009 decision in Bourguignon which in that 8 particular case it was the Judge's decision, Judge Ponsor's decision in that case about whether to 9 grant a bond hearing was not factbound. It was rooted in the rooted in the way a number of cases 10 have addressed this question about whether detention under 236(c) is constitutional and in that
11 instance he was looking at whether removal proceedings were reasonably foreseeable and
12 whether the length oftime that the individual had been detained was reasonable. So that was not 13 a fact, the inquiry was, that was not a fortune telling basically question for you. That case makes 14 clear that if you decide to reach the merits of this case and following the way that Bourguignon, 15 following Bourguignon you would be looking at those two questions so that the foreseeableness 16 of removal proceedings and the unreasonableness of the length of time of detention. 17 MARLEY: Your honor if I could, I'm sorry I apologize Mike. What? 18 WISHNIE: Your honor if 1may clarify your question, the respondent's position has an 19 alternative. The analysis adopted by the Ninth Circuit in the most recent judicial decision on this 20 statute, as you indicated, held that after six months 236(c) custody essentially expires and it 21 shifts over to 236(a). That was the statutory analysis adopted by the Ninth Circuit. That is 22 respondent's first position. Were this court to reject that statutory interpretation and hold no, he 23 still is subject to 236(c), [end of track #3] then under all the other cases cited which interpreted
8

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236(c) as having a reasonableness limitation, Bourguignon and the other cases cited, and in fact 2 every court to consider this issue, the alternative argument would be if Mr. Reid remains under 3 236(c), that detention is still subject to a reasonableness requirement in light of the factors you 4 have indicated. 5 COURT: Okay and that is what I guess is there any cases with regard to the later 236(c) 6 unreasonableness where, say, if you have a respondent similarly situated goes over that 6 month 7 mark, where an lJ has gone forward and conducted a bond hearing. 8 WISHNIE: I have only handled one such case, your honor. 9 COURT: And I am saying without going for a habeas. 10 WISHNIE: Yes, where the lJ, this was an IJ in San Francisco in a case I handled there. Where
11 the IJ first conducted the bond hearing notwithstanding it was undisputed the respondent was
12 convicted of an aggravated felony and therefore subject to 236(c). 13 COURT: And let me ask you, I don't think that is disputed in this case. Is that accurate that the 14 respondent has been convicted of an aggravated felony. He has been held at 236(c) mandatory 15 detention at least that was the preliminary decision. 16 WTSHNIE: Yes your honor 17 MARLEY: What was the preliminary decision? 18 COURT: By DHS when they took him in. They held him at mandatory detention. 19 MARLEY: Where is that? I would like to see that piece ofpaper. I don't have my file but if 20 someone has a piece of paper that says he is being held at DHS decide he is mandatory detention. 21 COURT: Wasn't that the case in this case. I thought I saw the paperwork. 22 MARLEY: Well you were given some paperwork Judge but that paperwork doesn't' say what I 23 think the people want it to say.
9

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"
COURT: 1thought there was the 286 2 MARLEY: Let's go back to the 286 Judge. 3 COURT: 1 am talking the 286 Mr. Marley 4 MARLEY: l got it in front of me 5 COURT: And it says detained in the custody of the department 6 MARLEY: Is detained in their custody, right, and then there is a box under that says 7 there are two boxes that can be checked, the first one is you may request a review ofthis 8 determination by an immigration judge and the second box says you may not request review of
9 this determination judge because the immigration nationality act prohibits your release from 10 custody like for example you're being held in mandatory detention. So what I am trying to take 11 away from these documents is that when DHS checks a box that says you can ask the judge for 12 redetermination how is that evidence that he is being held pursuant to mandatory detention? 13 COURT: Well let me ask you point blank, in this case, how is he being held then? 14 MARLEY: Well hold on Judge, I am glad to answer that question. The respondent brought this 15 motion. 16 COURT: Yes 17 MARLEY: The respondent has the burden of proof in production. This document has been 18 given to the court and in fact just a moment ago the court said "Mr. Marley I think I remember 19 seeing a document that says he is mandatory detention." Where is the proof that with this 20 document this 286 that he is being held under mandatory detention? It doesn't say anything 21 about that. In fact I would argue that a better interpretation of this document would be is that 22 DHS says you need to apply for a bond hearing, you are eligible for a bond. 23 COURT: Okay, well and he has applied for a bond hearing so how is he being held?
10

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MARLEY: Well we will put it back on the respondent. He has the burden of proof. 2 WISHNIE: We are ready to proceed to a bond hearing Judge. 3 MARBLY: Judge, Judge, where the two, come on, I was given, I was given this motion and it 4 says in support of the motion is being held without bond under 236(c) and then attached is this
5 document. 6 COURT: I see what you are arguing. 7 MARLEY: How is this document Judge how does this document advance the proposition that 8 his detention is under 236(c)? Question. We will let the ball roll over to Mr. Wishnie to answer. 9 COURT: Professor any response? 10 WISHNIE: This is a ball that is way of bounds. It's a foul ball is alii can tell you. We don't 11 care on what basis we go forward. Mr. Reid would like to be heard for a bond hearing. If it is the 12 government's position, that he is not under 236(c), I would like to hear their objection to 13 proceeding to a bond hearing. 14 COURT: Okay and I 15 MARLEY: Okay that is fine Judge. 16 COURT: That is what I want to hear as well. 17 MARLEY: So when it comes to this 286 I don't want to tear it out of the package but we can 18 safely put this aside as not being of any evidentiary value as to what authority he is being 19 detained under. 20 COURT: Okay and so let's get to the big question before the court 21 MARLEY: Okay that is fine. Okay, now respondent claims he is being held under 236(c). 22 don't have any evidence or document in front of me mostly because I don't have my file, Judge 23 but since we are only addressing preliminary issues today what authority is that? Is it the fact
11

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that in his pleadings he conceded admitted removable for an aggravated felony? 1 don't quite 2 know. 1 don't think it is addressed in the brief. 3 WISHNIE: What authority is what? 4 MARLEY: The argument that he is currently being detained under 236(c). That is the argument
5 in the brief. 6 W1SHNIE: The argument is that he is being detained without bond by ICE and we have 7 requested the Immigration Court conduct a custody bond redetermination hearing. If you don't 8 think there is jurisdiction in this Court, we would like to hear the reason why. If there is 9 jurisdiction let's proceed. 10 COURT: That's the big question and so that is what I am trying to understand Mr. Marley. 11 guess at this point how is, I just want to know how is the respondent being [end of track #4] 12 Why is the respondent being held by the government? 13 MARLEY: Judge it says on November 13 ICE refused to determine Mr. Reid's bond on the 14 grounds that he had been convicted of an aggravated felony. Are we all in agreement that that is 15 not true? 16 COURT: I think Professor Wishnie you are saying that is not disputed that he has been
17 convicted of an aggravated felony under the INA.
18 WISHNIE: And I think it is not disputed that he is being held without bond according to the ICE 19 I-286 that is before the court. 20 MARLEY: Is being held without bond there is many people held without bond. 21 WISHNIE: And so he is here to ask for redetermination ofthat decision as many people do. 22 MARLEY: And the question becomes whether the IJ has jurisdiction to determine bond. 23 WISHNIE: And on what basis would the lJ lack that jurisdiction?
12

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MARLEY: Many bases, it could be a final order of removal. He may be subject
2 WISHNIE: Is that your position today?
3 MARLEY: I haven't been asked for my position on that yet, Mr. Wishnie.
4 COURT: Alright well I would like to know your position because 1 am going to have to make a 5 decision I think right up front as to the authority of this court. 1think that is when I read this 6 motion that was one of the big issues that jumped out to me just seeing that you are citing a lot of 7 Ninth Circuit cases, some District Court cases and I think preliminarily I have to decide whether 8 I have the authority to do what you are asking me to do. If I agree with you, then we move 9 forward with a bond hearing and we get into all the bond factors as articulated in the cases. If 10 not then I would have to make a ruling and certainly, you certainly would have a right to go from 11 there as far as any appellate process. Mr. Marley. 12 MARLEY: Judge the only thing because we don't have a file in front of us alii got is a copy of 13 the respondent's motion blank legal pad that I have been scribbling on and my telephone. 1 14 don't have the pleadings in front of me for example did the respondent admit and concede that he 15 was an aggravated felon during a certain time period. 16 COURT: Professor I don't have my file either because as we know this case is on appeal so we 17 are trying to move forward with the request. 18 WISHNIE: Yes and the bond packet we submitted to the court and served on ICE, we indicated, 19 we included as exhibit D the Notice to Appear and the pleadings entered by Mr. Reid on 20 December 3, 2012, in which he conceded all the allegations and the grounds of removability. 21 MARLEY: I'm sorry as part ofthis motion is a copy ofthe NTA and 22 WISHNIE: Exhibit D 23 (muffled voice- Matt Vogel)
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MARLEY: Something else came in Friday.

2 (muffled voice- Matt Vogel) 3 MARLEY: How did that come by mail or did you drop it off at the office.

4 (muffled voice- Matt Vogel) 5 MARLEY: And Judge we have a Fed Express receipt for Friday.

6 (muffled voice- Matt Vogel)

7 VOGEL:

-- got one on my computer

8 MARLEY: Because here is what happened Judge. On Thursday afternoon apparently this

9 motion that I got before me dated June 10 was mailed out to us on June 10 but then 1 understand 10 on June 11 a hand-delivered motion came up in the elevator past the 41h floor made it to the

11 EOIR window so that when you got a copy of this motion I didn't get a copy of this motion until

12 Thursday afternoon when FedEx delivered approximately around 2 in the afternoon.

13 COURT: Well in any event we all have the motions now and 14 MARLEY: Well yeah but now I am understanding that there is another exhibit here that was

15 sent out when and was delivered to us when? 16 WISHNIE: First of alii don't agree with Mr. Marley's recitation of service. We served the 17 court and the government together. We FedEx'd a supplemental packet to the court and to ICE 18 on Thursday that was delivered Friday morning to both. I can't explain ICE's mail system. In 19 fact the supplemental packet which has exhibit C through I was sent by the same mode of 20 delivery to both the court and ICE Thursday evening for Friday morning delivery. 21 COURT: Okay but let's get back. I think the question was do you have a copy ofNTA? I don't 22 have my file as well. Do you have a complete copy of the NTA? I see with the charges. I think

23 that is what

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MARLEY: Judge did you get this filing. 2 COURT: I received a filing the initial bond motion on June 11 and then we received a filing on
3 June 14 with tabs C through I, I believe C through I.
4 WISHNIE: Yes 5 COURT: And that was some of the factors I think 6 MARLEY: So sometime on Friday you received something? 7 COURT: We received something on June 14. There was filing made at approximately I 0:34am. 8 That is according to the date stamp. 9 MARLEY: Was that hand delivered or by mail? 10 WISHNIE: That was by Fed Ex, the same mode of delivery to ICE, Friday morning as I have 11 just stated. 12 COURT: In any event 1think a lot of the documents for the filing on Friday were what you 13 wanted the Court to consider in the bond motion should we go forward. 14 WISHNIE: Yes 15 COURT: But I am not sure we are going to get there. We have to address the jurisdictional 16 issue first. Ifwe get past that hurdle then we may get to those documents. 17 MARLEY: But the supplemental filing may help you with that Judge, right? [end oftrack 5] 18 COURT: The supplemental filing, I think if you want to take a look or do you have another 19 copy for Mr. Marley. 20 WISHNIE: Yes I will deliver another copy to Mr. Marley. 21 COURT: I think my take on it was that it was more going to the factors as to why he merits the 22 court's discretion and a release on bond.
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WlSHNIE: In, that's true your honor. However we had not anticipated that Mr. Marley seems 2 uncertain of whether Mr. Reid has conceded he has been convicted of an aggravated felony or 3 not. 4 COURT: I have a copy of your pleadings. You conceded all the charges on the case. 5 WISHNIE: Thank you your honor. 6 MARLEY: Judge, just so we are clear again. I don't have my file~ And the reason I don't have 7 my file I can reasonably 8 COURT: Yes I understand 9 MARLEY: I can reasonably explain as it was FOTA'd by the respondent. And I am sure it was I0 not FOIA'djust so I wouldn't have my file for today because that is not how the Clinic works. 11 Alright but I don't have my file to answer certain questions. 12 COURT: Okay but 13 MARLEY: I am not trying to obstruct anything. 14 COURT: No, and my question is, do we have a complete copy, does anyone have a copy ofthe 15 charging document. 16 WISHNIE: Exhibit D in the packet in front of you and then in the packet I have just given to Mr. 17 Marley. 18 COURT: Okay and does it have the charges identified on the, Okay we have it 19 WISHNIE: It has the NTA as well as the written pleadings behind it your honor, conceding the 20 charges and the allegations 21 COURT: Alright Mr. Marley they are right there. The charges that were conceded. 22 MARLEY: Alright on page 19 of that exhibit all charges of removability were conceded. So he 23 is conceding that
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WISHNIE: You have been convicted of an aggravated felony as defined in section 2 10l(a)(43)(B) etc., that is the first charge. 3 MARLEY: And that is for the 2010 as well as the 2002-2004 convictions? 4 WISHNIE: He conceded the charges as it was written. I have just read you the part of the first 5 charge. 6 MARLEY: Well maybe I have to bring it back to the court as respect to the- Is he an 7 aggravated felon because of allegation 4, allegation 5 or allegation 6, allegation 7 or all of the 8 above or any one of those? I just want to understand 9 COURT: I think everything been conceded. All the allegations are conceded. 10 MARLEY: This is not a factual issue Judge. Whether he is an aggravated felon based on those 11 factual concessions may be effected by operation of law for example the most recent US 12 Supreme Court case in Moncrieffe. What I want to hear from the respondent is he alleging he is 13 aggravated felon and subject to mandatory detention based on allegation 4, 5, 6, or 7 or all of 14 those or any of those? 15 WISHNIE: As I stated several times, I think the court understands, and the respondent is still 16 waiting for the position here. We are here today because ICE determined to hold respondent on 17 no bond and we requested a bond redetermination hearing. The court has inquired into its own 18 jurisdiction. You have our position. We believe the court does have jurisdiction. I am still not 19 sure whether we have heard ICE's position on that or not. I look at these oftenses, the first one is 20 a possessory offense not a sale offense. I don't know that it matters whether 1, 2 or 3 others are 21 aggravated felons or not. The pleadings state we concede the charges of removability. The tirst 22 charge of removability is conviction of an aggravated felon. That is an uncontested fact. But it is
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not what brings us here today. What brings us here today is ICE is determined to hold him on no 2 bond. We have requested a bond hearing. 3 COURT: Okay and you have conceded that he has an offense relating to the illicit trafficking of 4 a controlled substance as defined under the Controlled Substances Act and also with regard to 5 the second charge. 6 WISHNIE: Yes your honor. 7 COURT: Alright. 8 MARLEY: So he is an aggravated felon. In other words Judge, if you were to write a decision 9 right now saying the court does not have jurisdiction because the respondent is an aggravated I0 felon by virtue of, fill in the blank, Mr. Wishnie does not want to give you the fill in the blank. 11 He just wants to tell you look he is being held under 236(c) and he has pleaded that he is an I2 aggravated felon but not all aggravated felons are subject to 236(c) and so ifwe were in an 13 Article 1 court you might want a bill of specificity or something but I am just trying to
14 understand if Mr. Wishnie is saying look he is held under 236(c) and here is why we want the
15 bond hearing. I am just trying to understand from his pleadings and this is the first time I have 16 seen this today, what which one ofthese offenses makes him an aggravated felon and subject to 17 mandatory detention. It should be a very simple answer and then the judge can say, you know 18 what Mr. Wishnie, I agree with you in fact this 2004 sale of hallucinogenic narcotic makes him 19 an aggravated felon [end oftrack 6] mandatory detention he is being held in 236(c), and then you 20 make a decision whether to apply these Ninth Circuit cases or to simply say he doesn't get a 21 bond hearing I am deprived ofjurisdiction. I don't really think it too much to ask though for 22 either the court to determine or Mr. Wishnie to assist you in that determination.
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COURT: Well what about you determining? You are holding him custody. What about the 2 government making, telling us why you are holding him? 3 MARLEY: He is in custody. Are you asking? It is not for us to explain why he is being 4 detained. 5 COURT: Really? 6 MARLEY: Yes 7 COURT: You are just going to hold people and not explain why they are being detained? 8 MARLEY: That is why we have a bond hearing 9 COURT: And that is why I am asking 10 MARLEY: Judge, what document do I have in front of me that tells me what section of law he 11 is being held under right now? What do I have in front of me? The answer is nothing. I have a 12 blank legal pad
13 COURT: But Mr. Marley your agency is holding him.
14 MARLEY: Well ifyou want me to get my file Judge and go through the file and see ifthere is 15 any document in there okay to go ahead and answer that question. 1 can. But I don't have my file 16 and that is why I have asked for a continuance. My file was taken away from me. Because by 17 law we have to respond to FOIA requests and those files are handled FOIA request at the NRC 18 not here at my office. I have no document in front of me other than the document Mr. Wishnie 19 provided us today to explain that he was subject to 236(c). That document doesn't do that. 20 COURT: I guess I am just trying to understand is the government's position that right now I 21 guess bottom line you agree with Professor Wishnie's argument that he is now under the ambit 22 of236(a) and entitled to the full bond hearing before this court? Or do you still believe that he is 23 subject to 236(c) mandatory detention and if that's the case then.
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MARLEY: Judge there are different arguments why he is under 236(a). 2 COURT: I understand 3 MARLEY: The first one being that we are going to import Ninth Circuit case law or Judge 4 Ponsor's decision in an unrelated case. 5 COURT: Right and you 6 MARLEY: And we don't assent to that. 7 COURT: Well that is what I am trying to understand. I am trying to understand if you agree 8 with the argument that he is now under 236(a) and it sounds like you don't 9 MARLEY: No 10 COURT: You said you don't assent. I guess ifyou don't agree with the argument that he is 11 under 236(a) 12 MARLEY: By virtue ofNinth Circuit case law and Judge Ponsor's decision in a separate case 13 that is our position. 14 COURT: Okay that he doesn't fall within the ambit of236(a) 15 MARLEY: Because of those reasons 16 COURT: Because ofthose reasons. And there is no authority for this court to proceed under 17 those reasons, right? 18 MARLEY: Absolutely, but I am just trying to Judge, asking the proponent of a motion who has 19 the burden of proof and the burden of production to say that you have jurisdiction or you don't 20 have jurisdiction I don't think it is too much to ask. I mean, Judge if you going to give a motion 21 today you know you have to say magic words. And the magic words are going to be, I don't 22 have jurisdiction today because of he has been convicted of an aggravated felony, and then there
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are 4 ofthem possibly here which one or any one or any of them I don't know why respondent so 2 cagey about coming forward and saying real straight forward (inaudible) 236(c). 3 COURT: But does it matter if you, I guess I am just trying to understand if all4 allegations, 4 particularly 4 through 7 are all admitted and both charges are admitted and there is, you think 5 that is not enough or 6 MARLEY: lfthat is Mr. Wishnie's position that those 4 allegations are aggravated felonies and 7 he has conceded the allegations and conceded he is an aggravated felon 8 COURT: Well I think (inaudible) 9 MARLEY: Well I think it is hard to argue anything different 10 COURT: I guess 1am just trying to understand if Professor Wishnie and the representatives are 11 conceding that he has been convicted of an aggravated felony illicit trafficking offense. Am I 12 hearing it wrong or 13 WISHNIE: It has been our position since December 3, 2012 your honor. 14 MARLEY: Let me put my defense hat on for a second, not that I agree with any of these 15 arguments, alright, what if this gentleman was not taken into custody. Immediately after being 16 released by the state law enforcement agencies. You are familiar with the argument, Judge, that 17 to be subject to mandatory detention you have to have been taken into custody immediately upon 18 being released by the state authorities. 19 COURT: Uh huh 20 MARLEY: OK, you have heard that argument made here in Immigration Court before. This is 21 not a mandatory, I know it is an aggravated felony Judge, I know it is drug trafficking, but 22 because my client was not immediately taken into custody by immigration authorities upon his 23 release from custody for this offense is not an aggravated felon. Well? Do we have those facts
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here? See, the considered thought here is I'm going to give the Judge as little as I possibly can, 2 Okay, I am going to say look, there are 4 aggravated felonies there and we have conceded that he 3 is guilty of an aggravated felony. [end of track 7] Now when we get to the Board or to the 4 District Court suddenly the argument is somewhat more nuanced and refined. Suddenly, why 5 yes we conceded he was convicted of those factual matters. Why yes we agreed that he was an 6 aggravated felon but we did not agree and you will find nowhere on Judge Verrillo's record that 7 we conceded that for example allegation number, let's say 6, is in fact that he is subject to 8 mandatory detention and then suddenly new documents suddenly appear, you know what those 9 new documents show, Judge? Those new documents show that in fact their client wasn't taken 10 into custody immediately after being released and is therefore not subject to 236(c). I am not 11 trying to be obstructionist here 12 COURT: OK 13 MARLEY: Judge, I am just trying zoom in here a little bit, stop generalizing and let's figure out 14 which one of these is in fact really an aggravated felony subject to mandatory detention and let's 15 put the respondent here feet to the fire. You say 236(c) and I am going to take an order from you 16 saying it's 236(c) no bond jurisdiction I am going to go waltzing into Judge Ponsor with that 17 whenever, that's great. Okay that is fine. But let's go ahead and made the record here. Which 18 one of these is the aggravated felony such that you don't have jurisdiction? I just want to hear 19 that. Understand that I don't want to find out later on when new facts are disclosed that in fact 20 the charge and the allegation you were relying on to make your decision, finds out in fact he 21 wasn't subject to mandatory detention. 22 COURT: Well let's hear from Professor Wishnie, he's heard your thought process here.
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WISHNIE: Judge, I understand the court to have put a single question to both sides: do J have 2 jurisdiction here today to rule on this request for a custody redetermination? You know our 3 position is that you do, notwithstanding the concession to a conviction of an aggravated felony, 4 in our view first under the reasoning ofthe Ninth Circuit in Rodriguez because the detention has 5 exceeded six months Mr. Reid is now under 236(a). And in the alternative find the reasoning of 6 every other court of appeals and stacks of District Courts, not only in Massachusetts but 7 elsewhere, that if one is still under 236(c) even after six months, that is subject to a 8 reasonableness requirement. We don't dispute the pleadings. We are not seeking to revisit 9 those. I understand the court to have begun this hearing with a simple question. I still haven't I 0 heard the position of the government. 11 MARLEY: And that is exactly why we need a Matter of Joseph hearing Judge. If there is a 12 question about whether this man is an aggravated felon subject to mandatory detention then I 13 think we probably need to go down that road. 14 COURT: Professor? 15 WISHNIE: (laughter) I mean, I guess Mr. Marley has a question whether the respondent is 16 convicted of an aggravated felony. We are not here before you seeking to contest the pleadings 17 that were submitted on December 3, 2012. 18 COURT: You are not contesting the pleadings? 19 MARLEY: (Laughter) It still doesn't answer the mail Judge. Which is a simple question. 20 Which of one ofthese aggravated felonies allegations 4 through 7, which one ofthese is an 21 aggravated felony that they have conceded makes him ineligible for bond under 236(c) deprives 22 you ofjurisdiction? No? 23 WISHNIE: As your honor knows, in our view, none ofthem deprive you ofjurisdiction.
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MARLEY: Well under the 236(a) argument I got it 2 WISHNIE: Or under the reasonableness requirement of236(c), as that statute been interpreted 3 by every federal court to consider it. 4 MARLEY: That was a graceful side step Judge. 5 WISHNIE: I still haven't heard Mr. Marley's answer to your very first question, Judge. 6 COURT: OK 7 MARLEY: Maybe when I get my file and we have a Matter of Joseph hearing I will be able to 8 form a better opinion. Look into the factual circumstances of each and every one ofthese 9 allegations. 10 COURT: Well, I guess Professor Wishnie you are saying none of them. Is that your answer to 11 Mr. Marley's question. 12 WISHNIE: No, no, that would be to revisit the pleadings. We are not revisiting the pleadings. 13 Now we are saying, notwithstanding his conviction of at least one aggravated felony, he is 14 eligible for bond redetermination. That is why we have come before this court. Ifthe 15 government thinks that is incorrect for any reason, I would like to hear it, and ifthey agree, then 16 I would like to proceed to the bond hearing that this court rescheduled at the government request 17 to this afternoon. 18 MARLEY: Maybe I am not listening carefully enough to Professor Wishnie. What is being 19 conceded is that at least one of these allegations 4 through 7, at least one of them, without 20 specifying, is an aggravated felony that they have admitted and conceded that would subject him 21 to mandatory under 236(c) as the government interpreted. 22 WlSHNIE: Correct. That is consistent with our pleadings.
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COURT: That's correct and that was from the get go. From the time he was taken into custody. 2 Does that answer your question? 3 MARLEY: I think so, maybe 4 COURT: (laughter). OK 5 MARLEY: Maybe we were passing each other at high speed Professor Wishnie or maybe in my 6 case at low speed. But so [end of track #8] conceded without any more specificity, is at least 7 one of these allegations is an aggravated felony as defined by the INA that would subject him to 8 236(c), and then once that is conceded then we go to these arguments about proportionality. 9 COURT: No I don't think proportionality is an argument in this one 10 WISHNIE: The arguments are how INA 236(a) and (c) should be interpreted as a matter of 11 statutory construction. 12 MARLEY: Okay, that is fine. Well I guess he is being held under 236 then. 13 COURT: That is what I wanted to know Mr. Marley (laughter) that's what I wanted to know. 14 MARLEY: From what Professor Wishnie tells me and from the charging document and the 15 pleadings appear to say 16 COURT: OK, because you clearly said that the government did not assent to the arguments that 17 he now falls under the ambit of236(a). 18 MARLEY: Well he is not 236(a), he is not being held by the government at 236(a) because of 19 some Ninth Circuit case or what because of Judge Ponsor's interpretation in an unrelated case. 20 Right. Whether or not he is, you know Judge, we gave a hypothetical legal and factual possibility 21 where one of these in fact is not an aggravated is not subject to mandatory detention not that it is 22 an aggravated felony but not subject to mandatory detention. 23 COURT: Understood
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MARLEY: Alright 2 COURT: But I think based on the comments we have and based on your statement. Is there 3 anything else from the parties at this time? Anything else Professor at this time with regard to 4 the jurisdictional arguments? Ms. Johnson, Mr. Vogel? 5 JOHNSON: No your honor 6 COURT: Professor Wishnie? 7 MARLEY: Nothing from the government your honor, no 8 COURT: I think, I think, I think that in assessing this motion that was the first thing that came to 9 mind is whether or not I had the authority to address your request. I think given, and I know you 10 are presenting compelling arguments on behalf of the respondent but without legal authority by 11 the Second Circuit I think on this point, I think I have no choice at this time just to find that the 12 respondent, given the admission and concessions that we have, is subject to mandatory detention 13 at this time under INA 236(c). So given what I have before me, 1think at this time 236(c) 14 applies. I will find that that is the case and therefore I think that I have no choice but to deny the 15 request for a custody redetermination hearing at this time. lam certainly, I am not sure I need to 16 go any further than that at this point. I think that this is frequently is the case in a lot of the cases 17 that we see certainly you have heard the court's thoughts on the respondent's case, I think at this 18 time and unless I am directed otherwise or by a reviewing body or by another court, the court 19 will find that he is subject to INA 236(c) mandatory detention. And Mr. Reid I just don't believe 20 at this time I can legally go forward with your request for a custody redetermination hearing 21 despite the, you know, the arguments that are presented by your counsel and representatives. So 22 under the law you would certainly would have the authority and the right to appeal any decision 23 made by this court to a higher court. Any appeals to the Board of Immigration Appeals must be
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made within 30 days and that would be on or before the close of business on July 17, 20 13 and 2 Professor Wishnie on behalf of the respondent does Mr. Reid wish to reserve his right to appeal? 3 WISHNIE: He does your honor. 4 COURT: And Mr. Marley anything else at this time? 5 MARLEY: We also reserve the right to appeal. 6 COURT: Very good and so the government reserves the right to appeal as well to both parties. 7 Both parties have 30 days to file an appeal any appeal must be received by the Board of 8 Immigration Appeals on or before the close ofbusiness on July 17, 2013. Professor? 9 WISHNIE: Yes your honor I do want to observe, while respecting your ruling, that I do think 10 this application puts the court and the government in a difficult situation, as Ms. Johnson stated. 11 We acknowledge the Second Circuit has not ruled on this matter and this court is bound by it. 12 And of course this court was not a party to the habeas proceeding in Bourguignon which Ms. 13 Johnson mentioned. 14 COURT: Uh huh 15 WISHNIE: However, the government was a party there and the government advanced the 16 arguments that Mr. Marley has alluded to today. And those arguments were rejected by the 17 habeas court as a matter of statutory construction in the case before Judge Straus. The 18 government there chose not to appeal that ruling, they acquiesced to it and in fact they paid 19 attorney's fees to the habeas petitioner's counsel [end of track #9] based on our application 20 under EAJA that the government position was not substantially justified. And the government 21 paid $20,000 in attorney's fees. For the government to advance arguments to the habeas court, 22 lose, decline to appeal and then to return to pay attorney's fees for its loss and then return to this 23 court to renew the same arguments before a different judge I think puts the government in a bit
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of a difficult position. As I have said, unlike this court, the government was a party to that 2 habeas, and while 1respect that this court feels that in the absence of Second Circuit authority it 3 cannot proceed, I do think it is an unusual situation and one in which 1 do hope that this court 4 will, as at least one other immigration judge before whom I have appeared, will come to interpret 5 the statute as it is empowered to do, and that the government will either pursue appeals or abide 6 by the ruling rather than force respondents to go to the burden of filing habeas petitions and the 7 litigation burdens that follow from that. 8 MARLEY: Judge ifl could just respond briefly. 1fMr. Wishnie could help me out again here. I 9 know he will have this offthe top of his head. How many months Mr. Bourguignon was 10 detained prior to filing ofthe habeas? 11 WISHNIE: I don't recall offthe top of my head. 12 MARLEY: I will recall for him. It was about 3 times as much time as in this case. This 13 respondent has been detained approximately how many months Professor Wishnie? It has been 14 about seven or eight months? 15 WISHNIE: It is approximately seven months 16 MARLEY: Seven months detention Judge. Just so 1 am clear because this was raised. These 17 cases Judge are not the same two cases. This gentleman has been retained approximately seven 18 months. Now Professor Wishnie wanted to wait twenty-two months perhaps he would have an 19 analogous case to the one previously addressed by Judge Ponsor. I think if we go back to read 20 Judge Ponsor's decision I imagine that at some point the length of detention by Mr. Bourguignon 21 was a factor in his making his reasonableness decision about detention. So these cases are not 22 the same and with respect to or whether or not the Department of Justice makes a decision 23 because they represent us in U.S. District Courts, whether or not the Department of Justice seeks
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review by the Circuit Court of Appeals is a decision, and again Professor Wishnie can probably 2 help me with this, I believe was made by the Solicitor General and it is not a decision that 3 Immigration and Customs Enforcement makes. We as an agency, we argue the existing Board 4 precedent, we argue the existing Second Circuit precedent, and as I understand it and again I 5 would demur to my brother that District Court decisions while certainly informative alright 6 COURT: Are not binding 7 MARLEY: Are not binding 8 COURT: Are not binding on this court 9 MARLEY: And that is something the Immigration Court does. So when presented with the 10 exact same fact pattern I think Professor Wishnie makes a very good point. But I don't think that 11 is what we got here today. 12 COURT: And I understand Professor you are arguing as well that the likelihood for the 13 respondent staying in custody, just given the nature of these proceedings and the appellate 14 process and how long it could take in the future, but I think just given the admissions and I 5 concessions that we have, the lack of precedent by the Second Circuit, by the Board, I think the 16 court, in the Court's view, I just have to find that 236(c) would apply and that the respondent is 17 subject to mandatory detention, but certainly both parties have preserved their rights to appeal as 18 both parties know if an appeal is not received by the Board of Immigration Appeals by the 19 deadline indicated on or before the business on July 17, 20 13, then either party could lose their 20 right to appeal. Is there anything else that we need to address, and again number one, was I think 21 before any court goes forward with any matter, is the court's authority to conduct the requested 22 hearing and whether the court has jurisdiction or not, and given the admissions and concessions, 23 given the fact that this has not been addressed in this circuit, then the court would find that it just
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doesn't have the authority to move forward with the respondent's request. If another court tells 2 me to do so I would be more than happy to move forward with a full hearing in connection with 3 custody redetermination for Mr. Reid. 4 MARLEY: Will there be a written bond decision for 5 COURT: I am just going to fill out an order. I have an order here. I will give that to the parties 6 and the parties can appeal. I think this is pretty straightforward as far as the court's ruling and 7 everything is on the record. 8 WISHNIE: Thank you your honor 9 MARLEY: Thank you judge 10 COURT: And I will let both ofyou, ifyou do appeal, make legal arguments, and again if 11 another court tells me to move forward with a court [end oftrack #10] or gives me any type of 12 legal authority that I believe existi I certainly am happy to do that and move forward. Anything 13 else for today? 14 JOHNSON: No your honor. Thank you 15 COURT: Anything else Mr. Marley? 16 MARLEY: No sir 17 COURT: Okay we are [end of track #11].
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 </s> Case 3:13-cv-30125-PBS Document 421 Filed 10/24/18 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Mark Anthony REID; Robert WILLIAMS; )

and Leo Felix CHARLES, on behalf of )

themselves and others similarly situated, )

)

Petitioners-Plaintiffs,

)

)

v.

)

)

Christopher DONELAN, Sheriff,

)

Franklin County, Mass.; Lori STREETER, )

Superintendent, Franklin County Jail & )

House of Correction; Kirstjen M.

)

NIELSEN, Secretary of the

)

Department of Homeland Security;

)

Thomas D. HOMAN, Acting Director of )

Immigration and Customs Enforcement; )

Rebecca J. ADDUCCI, Interim Director, )

Immigration and Customs Enforcement )

Boston Field Office; Thomas HODGSON, )

Sheriff, Bristol County, Mass.; Joseph

)

McDONALD, Jr., Sheriff, Plymouth

)

County, Mass.; Steven TOMPKINS,

)

Sheriff, Suffolk County, Mass.;

)

David DUBOIS, Sheriff, Strafford County, )

N.H.; Christopher BRACKETT,

)

Superintendent, Strafford County House of )

Corrections; Jefferson B. SESSIONS, III, )

Attorney General of the United

)

States; James McHENRY, Director of the )

Executive Office for Immigration Review; )

and THE EXECUTIVE OFFICE FOR

)

IMMIGRATION REVIEW,

)

)

Defendants-Respondents.

)

Case No. 3:13-cv-30125-PBS Dated: October 24, 2018

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION This class action challenges the government’s unconstitutional practice of detaining individuals in immigration proceedings for more than six months without a bond hearing, under 8 U.S.C. § 1226(c). The government incarcerates people for six months, and sometimes far longer, without any individualized inquiry into whether their detention serves its purpose of preventing flight risk or danger to the community. Even individuals who pose no such risk and have meritorious challenges to removal remain imprisoned without any opportunity even to ask for release on bond. The government’s practices separate Plaintiffs from their families, obstruct their ability to seek immigration relief, and impose significant psychological and physical harm from poor detention conditions. Plaintiffs originally filed this action in 2012, a time when Immigration & Customs Enforcement (“ICE”) held all or nearly all Section 1226(c) detainees who were within the administrative jurisdiction of the ICE Boston Field Office at four county jails in the Commonwealth of Massachusetts. Plaintiffs sought, and Judge Ponsor granted, certification of a class of such individuals and granted summary judgment, interpreting Section 1226(c), in light of the Due Process Clause, to require bond hearings for class members. The First Circuit reversed in part and remanded, but then stayed its decision pending the Supreme Court’s resolution of Jennings v. Rodriguez, 138 S. Ct. 830 (2018). After Jennings, the First Circuit vacated its prior opinion and remanded anew. Plaintiffs’ amended complaint includes new class representatives and expands the class to include detainees at a fifth county jail in New Hampshire, where the ICE Boston Field Office now also holds Section 1226(c) detainees whose cases are decided in Boston Immigration Court.
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Staff of the New Hampshire jail also regularly detain these putative class members within Massachusetts, when transporting the detainees to and from Boston Immigration Court or ICE offices in Massachusetts and when providing courthouse security. Plaintiffs also seek an alternative form of relief under the original causes of action.
The original lead Plaintiff in this case was Mark Anthony Reid. He is a lawful permanent resident and veteran of the U.S. Army Reserve who moved to the United States at the age of fourteen and has lived here since that time, for forty years. He has been in removal proceedings continuously since November 13, 2012, and his immigration case remains pending. On the government’s view of this case he should have been detained for all of it—five years and seven months—despite the immigration judge’s determination that he presents no danger or flight risk. Mr. Reid was released from ICE custody under Section 1226(c) after 469 days, following an individualized bond hearing that Judge Ponsor ordered. Mr. Reid is now seeking relief in the form of cancellation of removal, asylum and withholding of removal, and relief from removal under the Convention Against Torture (“CAT”).
Additional named representatives Robert Williams and Leo Felix Charles are among the most recent victims of the government’s refusal to provide long-term detainees with a bond hearing. Mr. Williams, a lawful permanent resident who has lived in the United States for over a decade, has been held in immigration detention since December 6, 2017 without an individualized bond hearing. No court has ever determined whether Mr. Williams is a danger or a flight risk. If Mr. Williams were released, he would live with his sister, nephew, and niece—all of whom are U.S. citizens—and return to his job as a pastry chef. Similarly, Mr. Charles, a painter who has lived in the United States for more than 35 years, has been in ICE custody since February 2, 2018 without a bond hearing; while in detention, he has been unable to access
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critical medical care. He is pursuing relief from removal under CAT and would reside in Bridgeport, Connecticut, if released.
As with Mr. Reid, the prolonged, no-bond detention of Mr. Williams and Mr. Charles violates their rights under the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. On behalf of themselves and others similarly situated, Petitioners seek from this Court an order declaring prolonged no-bond detention unconstitutional, a writ of habeas corpus requiring their release absent the provision of bond hearings consistent with constitutional requirements, and related injunctive relief to remedy the harms caused by the government’s practice.
JURISDICTION AND VENUE 1. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343, 1361, 2201– 02, and 2241, and Article III of the United States Constitution. 2. Venue is proper in the District of Massachusetts. Mr. Reid, Mr. Williams and Mr. Charles have all been incarcerated under ICE Custody in detention facilities in Massachusetts.
PARTIES 3. Petitioners Mark Anthony Reid, Robert Williams, and Leo Felix Charles are representatives of a class of all individuals currently held for more than six months in mandatory ICE custody in Massachusetts or New Hampshire under 8 U.S.C. § 1226(c), and all individuals in Massachusetts or New Hampshire in future mandatory immigration custody for more than six months pursuant to Section 1226(c). 4. Mr. Reid is a citizen of Jamaica and a Lawful Permanent Resident (“LPR”) of the United States. He was previously detained by ICE at the Franklin County Jail and House of
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Correction in Greenfield, Massachusetts, until his release on bond pursuant to Judge Ponsor’s grant of his petition for habeas corpus and a subsequent individualized bond determination.
5. Mr. Williams is a citizen of Jamaica and an LPR of the United States. He has been detained at the Franklin County Jail in Greenfield, Massachusetts and is currently detained by ICE at Strafford County House of Corrections in Dover, New Hampshire.
6. Mr. Charles is a citizen of Haiti. He is currently detained by ICE at the Bristol County House of Corrections in North Dartmouth, Massachusetts.
7. Defendant-Respondent Christopher Donelan is the Sheriff of Franklin County, Massachusetts. Sheriff Donelan has custody of Mr. Williams, Mr. Charles, and other members of the class. He is sued in his official capacity.
8. Defendant-Respondent Lori Streeter is the Superintendent of Franklin County Jail and House of Correction. Superintendent Streeter has custody of Mr. Williams, Mr. Charles, and other members of the class. She is sued in her official capacity.
9. Defendant-Respondent Kirstjen M. Nielsen is the Secretary of Homeland Security. ICE is a unit of the Department of Homeland Security (“DHS”). Secretary Nielsen has custody of Mr. Williams, Mr. Charles, and other members of the class. She is sued in her official capacity.
10. Defendant-Respondent Thomas D. Homan is the Acting Director of ICE. Acting Director Homan has custody of Mr. Williams, Mr. Charles, and other members of the class. He is sued in his official capacity.
11. Defendant-Respondent Rebecca J. Adducci is the Interim District Director of ICE’s Boston Field office. Interim District Director Adducci has custody of Mr. Williams, Mr. Charles, and other members of the class. She is sued in her official capacity.
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12. Defendant-Respondent Thomas Hodgson is the sheriff of Bristol County, Massachusetts. Sheriff Hodgson has custody of members of the class. He is sued in his official capacity.
13. Defendant-Respondent Joseph McDonald, Jr. is the sheriff of Plymouth County, Massachusetts. Sheriff McDonald has custody of members of the class. He is sued in his official capacity.
14. Defendant-Respondent Steven Tompkins is the sheriff of Suffolk County, Massachusetts. Sheriff Tompkins has custody of members of the class. He is sued in his official capacity.
15. Defendant-Respondent David Dubois is the sheriff of Strafford County, New Hampshire. Sheriff Dubois has custody of members of the class. He is sued in his official capacity.
16. Defendant-Respondent Christopher Brackett is the superintendent of the Strafford County House of Corrections. Superintendent Brackett has custody of members of the class. He is sued in his official capacity.
17. Defendant-Respondent Jefferson B. Sessions, III, is the Attorney General of the United States. The Attorney General oversees the operation of the Executive Office for Immigration Review (“EOIR”). Attorney General Sessions shares responsibility for the implementation and enforcement of the immigration laws with the Secretary of Homeland Security. He is sued in his official capacity.
18. Defendant-Respondent Executive Office for Immigration Review is an agency within the U.S. Department of Justice with the primary mission of adjudicating immigration cases, including cases involving detained immigrants. One of EOIR’s immigration courts is the
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Hartford Immigration Court, located at 450 Main Street in Hartford, Connecticut. Another is the Boston Immigration Court, located at 15 New Sudbury Street in Boston, Massachusetts. All the Immigration Judges in Boston and Hartford are members and employees of EOIR.
19. Defendant-Respondent James McHenry is the Director of EOIR and is responsible for EOIR’s policies, practices, and procedures. Director McHenry is sued in his official capacity.
FACTS AND PROCEDURAL BACKGROUND Named Plaintiff Mark Anthony Reid 20. Mr. Reid was born in Jamaica on April 7, 1964. He came to the United States in 1987 as an LPR, at the age of fourteen. Mr. Reid served in the U.S. Army Reserve after enlisting at age twenty out of a desire to serve his country. Upon his honorable discharge six years later, he believed that he had become a U.S. citizen. 21. Following his honorable discharge, Mr. Reid pursued post-secondary education and held several jobs. He has taken courses in business administration, paralegal skills, and criminalistics. He earned a certificate as a loan originator from Walter and Associates, a financial services firm in New Haven. He has worked in mortgage services, construction, and asbestos removal. 22. Between 1986 and 2010, Mr. Reid received a number of convictions, including a conviction in 2010 for one count of sale of an illegal drug, one count of third-degree burglary, and one count of failure to appear. Following that conviction, Mr. Reid served approximately two years and was paroled by the Connecticut Department of Corrections on November 13, 2012 to ICE custody. Mr. Reid first became aware that he was not a U.S. citizen when he learned that he was subject to an ICE detainer.
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23. ICE charged Mr. Reid with two grounds of removability, as a noncitizen convicted of an aggravated felony and a controlled substance violation. Upon taking custody of Mr. Reid, ICE refused to set any bond for him.
24. Mr. Reid has litigated his removal proceedings since 2012. While he conceded the factual allegations and charges, he has sought relief from removal under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied Mr. Reid CAT relief three times, and the Board of Immigration Appeals (“BIA”) reversed that denial each time, remanding to the IJ.
25. After the last of those three reversals, Mr. Reid moved to terminate his removal proceedings in light of the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), a case concerning how to classify state criminal convictions for immigration law purposes. The IJ denied the motion for termination but concluded that none of the convictions are aggravated felonies under Mathis. Mr. Reid is therefore now eligible for asylum, withholding of removal, and cancellation of removal for LPRs. Mr. Reid intends to apply for each of those forms of relief, in addition to continuing to pursue his application for CAT relief. His individual hearing on those claims is scheduled for November 7, 2018.
26. On September 18, 2018, Mr. Reid filed a Motion to Reconsider the IJ’s decision regarding Mr. Reid’s removability in light of new legal authority and evidence. His next master calendar hearing on this issue is scheduled for October 29, 2018.
27. In Mr. Reid’s initial bond proceeding, the IJ refused to consider whether Mr. Reid was a danger or a flight risk, and instead held that he lacked jurisdiction to determine whether Mr. Reid was entitled to a bond hearing under Section 1226(c).
28. On January 9, 2014, Judge Ponsor granted Mr. Reid’s individual habeas petition and ordered DHS to provide a bond hearing. See Reid v. Donelan (Reid I), 991 F. Supp. 2d 275
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(D. Mass. 2014), aff’d in relevant part, No. 14-1270 (1st Cir. May 11, 2018). On February 3, 2014, the Immigration Judge set bond for Mr. Reid in the amount of $25,000. Mr. Reid posted bond shortly thereafter and was released.
29. Notwithstanding Mr. Reid’s requests, made through counsel and before an IJ, that ICE release Mr. Reid or agree to set bond for him, ICE continuously held Mr. Reid in mandatory, no-bond detention from November 13, 2012, until Mr. Reid posted bond following the hearing that resulted from the grant of his habeas petition, 469 days later.
Named Plaintiff Robert Williams 30. Mr. Williams was born in Jamaica and came to the United States in 2005. He is an LPR. 31. Prior to his incarceration, Mr. Williams lived in Bridgeport, Connecticut, where he has close family ties. His sister, niece, and nephew, who are all U.S. citizens, live nearby. In addition to his sister and her children, Mr. Williams has several relatives who are U.S. citizens or LPRs, including his grandmother, who is a citizen, and his parents, who are both LPRs. 32. Mr. Williams worked as a pastry chef in Bridgeport. In his free time, he volunteered with an organization that helps the elderly. Prior to being detained, he helped provide financial support to his sister and his niece and nephew, who are six and nine, respectively. 33. Mr. Williams has been held in immigration detention since December 6, 2017. For the majority of his immigration detention, he was detained at Franklin County Jail and House of Correction in Greenfield, Massachusetts. ICE recently transferred him to Strafford County House of Corrections in Dover, New Hampshire. He is detained pursuant to Section 1226(c).
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34. An IJ ordered Mr. Williams removed on February 13, 2018. He appealed to the BIA on March 9, 2018, and his appeal was dismissed on August 2, 2018. His Petition for Review is currently pending before the First Circuit.
35. ICE charged Mr. Williams with removability under INA 237(a)(2)(C) for unlawful possession of a firearm, because he pled guilty to violation of Conn. Gen. Stat. 2935(a). He served one year for this conviction and was immediately transferred into ICE custody following the completion of his sentence.
36. Mr. Williams had a bond hearing scheduled for June 14, 2018, but the IJ denied his bond request for lack of jurisdiction.
37. Mr. Williams’s detention has harmed him and his relatives. He is worried and experiencing stress about his family—in particular, his sister and her two children. His sister is a single mother, and before Mr. Williams was detained, she and her children received financial support from him. He worries about whether she can pay her bills, take care of her children, and make ends meet. Mr. Williams has also suffered psychological harm in detention, and is often frustrated and sad.
38. No family members have been able to visit Mr. Williams in detention. Mr. Williams especially misses his niece and nephew. When he speaks with his niece on the phone and she asks when he is coming home, he has no answer for her.
39. Mr. Williams’s detention has also harmed his ability to challenge his removal. He has difficulty communicating with his lawyer, who has to travel from New Haven, Connecticut, to Greenfield, Massachusetts, to visit him. Phone calls are also difficult: sometimes for days at a time, Mr. Williams is unable to call his lawyer, and even when he has been permitted to make calls, those calls have sometimes been limited to 15 minutes.
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40. Mr. Williams can no longer bear prolonged detention. After ten months of incarceration with no end in sight, Mr. Williams has acquiesced to ICE’s desire to remove him. Rather than remain detained while he fights his immigration case, Mr. Williams is scheduled to be removed to Jamaica on or around October 25, 2018 and will continue fighting his immigration case out of incarceration and from abroad.
Named Plaintiff Leo Felix Charles 41. Mr. Charles was born in Haiti and came to the United States in May 1982 as a nonimmigrant visitor. 42. Prior to his incarceration, Mr. Charles worked as a painter and resided in Bridgeport, Connecticut, near people with whom he is very close and whom he considers family. 43. In 1998, Mr. Charles was convicted of the sale of illegal drugs in violation of Conn. Gen. Stat. 21a-278(a)(b). He was released from incarceration for this conviction in 2009. 44. On February 18, 1999, Mr. Charles received an NTA from the Immigration and Naturalization Service charging him with two grounds of removability, for presence without admission or parole and drug trafficking. 45. An immigration judge granted Mr. Charles relief under CAT on January 9, 2003. 46. In 2013, Mr. Charles was convicted of first-degree assault under Conn. Gen. Stat. 53a-59. After serving a five-year sentence, he was directly transferred into ICE custody at the Franklin County Jail and House of Correction on February 2, 2018. He has been detained by ICE since that date. 47. Mr. Charles suffers from a number of medical issues, which detention at the Franklin County Jail has exacerbated due to lack of access to adequate medical care. In 2017, Mr. Charles underwent a spinal fusion procedure, and he is currently confined to a wheelchair.
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He also suffers from diabetes, high blood pressure, and digestive issues. His spinal fusion procedure requires ongoing follow-up care, but he has been unable to access the necessary treatment while detained. Mr. Charles is also awaiting knee replacement surgery. No date has been set for the surgery.
48. DHS filed a motion to reopen Mr. Charles’s case to reconsider whether to terminate the grant of relief from removal under CAT. On February 22, 2018, an IJ terminated Mr. Charles’s relief under CAT and ordered him removed.
49. Mr. Charles filed an appeal and motion for stay of removal on February 23, 2018. His appeal to the BIA was dismissed on October 3, 2018. Mr. Charles filed a Petition for Review before the Second Circuit on October 19, 2018.
Class Member Jovanny Pichardo Gomez 50. Other members of the Plaintiff class are similarly separated from their family members and community, restricted in their ability to litigate their removal cases, and subjected to psychological or physical harm in detention. 51. For example, class member Jovanny Pichardo Gomez is a lawful permanent resident and has lived in the United States for approximately twenty years. He has a U.S.-citizen son who is eight years old. Before being imprisoned, he worked delivering wholesale meat to grocery stores and was an active volunteer in the community and member of a church. 52. ICE has detained Mr. Pichardo Gomez for over six months without a bond hearing, in Bristol, Massachusetts. Because the facility is so far from New York City, his family has been unable to visit him there, and he has not seen his son in over a year. Since telephone calls are expensive, he is also unable to speak regularly with his son or other family members.
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53. An IJ ordered Mr. Pichardo Gomez removed to the Dominican Republic, which Mr. Pichardo Gomez believes was due to a conviction under Conn. Gen. Stat. § 21a-277(b). He filed an appeal to the BIA, which was received on February 26, 2018, and was dismissed on July 12, 2018.
CLASS AND REPRESENTATIVE HABEAS ACTION ALLEGATIONS 54. Defendants-Respondents have a pattern and practice, custom, and policy of holding individuals in mandatory, prolonged, no-bond detention pursuant to Section 1226(c). 55. Many of the individuals held by ICE in prolonged no-bond detention pursuant to Section 1226(c) are lawfully present in the United States, including LPRs such as Mr. Reid and Mr. Williams. 56. Many individuals subjected to prolonged no-bond detention under Section 1226(c) are indigent, have limited English proficiency, and/or have a limited understanding of the U.S. judicial system. Members of the class lack the ability to obtain the assistance of counsel in challenging their detention under Section 1226(c), even if they are able to determine that such detention is susceptible to legal challenge. 57. ICE routinely detains individuals pursuant to Section 1226(c) for periods longer than six months, including when those detained are in the process of challenging the grounds of their removability. 58. Petitioners Mr. Reid, Mr. Williams, and Mr. Charles seek either certification of a class under Federal Rule of Civil Procedure 23 or certification of a representative habeas, see United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974); see also Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009), to challenge ICE’s practice of subjecting individuals to prolonged no-bond detention under Section 1226(c).
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59. Mr. Reid, Mr. Williams, and Mr. Charles seek certification of a class consisting of all individuals (1) detained by ICE within the Commonwealth of Massachusetts or the state of New Hampshire and (2) who are or will be mandatorily detained for longer than six months pursuant to Section 1226(c).
60. All class members are detained under the authority of the ICE Boston Field Office, and all undergo removal proceedings at either the Boston Immigration Court in Boston, Massachusetts, or the Hartford Immigration Court in Hartford, Connecticut. In Massachusetts, ICE incarcerates detainees at jails in Franklin County, Bristol County, Plymouth County, and Suffolk County. In New Hampshire, the Strafford County Department of Corrections (“Strafford”), located in Dover, New Hampshire, houses as many as 130 immigration detainees whose cases are heard at Boston Immigration Court.
61. ICE often transfers individuals between New Hampshire and Massachusetts detention facilities as they approach six months in detention.
62. The New Hampshire defendants also regularly transport detained individuals from Strafford to the ICE facility in Burlington, Massachusetts and from Strafford to and from the Boston Immigration Court. The New Hampshire defendants detain class members in Massachusetts during these periods, accompanying them in and out of immigration court and providing courtroom security.
63. The representative class is sufficiently numerous as to make joinder impracticable. There are more than forty class members, including an unknown number of future class members who will continue to join the class so long as ICE persists in subjecting them to prolonged mandatory detention.
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64. The representative class presents common questions of law and fact, including (1) whether the government has a policy or general practice of detaining non-citizens in removal proceedings for longer than six months under Section 1226(c) without providing an adequate hearing to determine whether such prolonged detention is justified; (2) whether this detention policy or practice violates the Due Process Clause; and (3) whether this detention policy or practice violates the Excessive Bail Clause.
65. The claims of Mr. Reid, Mr. Williams, and Mr. Charles are typical of the class they seek to represent. Like all class members, Mr. Reid, Mr. Williams, and Mr. Charles are currently in removal proceedings. Mr. Williams and Mr. Charles have been detained pursuant to Section 1226(c) for over six months without being afforded a bond hearing and, absent relief from this Court, will be held in detention for the pendency of their removal cases. Mr. Reid was in the same position until this Court granted his petition for habeas corpus and ordered that DHS afford him a bond hearing.
66. Mr. Reid, Mr. Williams, and Mr. Charles are able to fairly and adequately protect the interests of the representative class. Attorneys and law student interns of the Jerome N. Frank Legal Services Organization at Yale Law School, the ACLU Immigrants’ Rights Project, and Anant Saraswat of Wolf Greenfield have extensive experience in litigating complex civil cases and habeas corpus actions involving immigration law, civil rights, and constitutional claims, and will vigorously prosecute the claim on behalf of all members of the class.
67. Defendants-Respondents have “acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2). Moreover, because members of the class will seek bond hearings, final relief is “appropriate respecting the class as a whole,” id., to ensure that members of the class are subject to a consistent government policy concerning their detention.
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68. Petitioners and members of the class seek a writ of habeas corpus to remedy their illegal and unconstitutional prolonged no-bond detention; declaratory and injunctive relief; reasonable costs and attorney’s fees; and any further relief that the Court deems appropriate.
CAUSES OF ACTION
COUNT ONE (VIOLATION OF FIFTH AMENDMENT SUBSTANTIVE DUE PROCESS) 69. The allegations contained in paragraphs 1 through 68 above are repeated and realleged as though fully set forth herein. 70. Substantive due process principles forbid the infringement of fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling government interest. 71. Freedom from physical restraint is a liberty interest protected by substantive due process. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The liberty interests of Mr. Reid, Mr. Williams, and Mr. Charles after over six months of detention is a fundamental liberty interest. 72. The prolonged no-bond detention of an individual who, like Mr. Reid, Mr. Williams or Mr. Charles does not pose a danger to the community or a flight risk is not narrowly tailored to serve a compelling government interest. Continued detention without a bond hearing under Section 1226(c) violates their substantive due process rights. 73. Mr. Reid, Mr. Williams, and Mr. Charles bring this cause of action on behalf of themselves and the class.
COUNT TWO (VIOLATION OF FIFTH AMENDMENT PROCEDURAL DUE PROCESS) 74. The allegations contained in paragraphs 1 through 73 above are repeated and realleged as though fully set forth herein.
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75. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of “liberty” interests protected under the Due Process Clause of the Fifth Amendment. Certain procedures constraining governmental action may be required after a consideration of the following three factors: the private interest affected by official action; the risk of erroneous deprivation of that interest and the probable value, if any, of additional or substitute procedural safeguards; and the government’s interest, including the function involved and the fiscal and administrative burdens that additional procedural requirements would entail.
76. The private liberty interest of Mr. Reid, Mr. Williams, and Mr. Charles and that of other members of the class is substantial. The risk that they and other members of the class have been erroneously deprived of liberty is high due to the failure of the IJ to provide them with individualized bond hearings, in which they could present evidence that demonstrates that they are neither flight risks nor dangers to the community.
77. The government’s interest in the continued detention of Mr. Reid, Mr. Williams, Mr. Charles, and other members of the class without an individualized bond hearing is slight since the government has not shown by clear and convincing evidence that they and other members of the class are neither flight risks nor dangers to the community.
78. Continued detention of Mr. Reid, Mr. Williams, Mr. Charles, and other members of the class under Section 1226(c) without an individualized bond hearing violates procedural due process.
79. Mr. Reid, Mr. Williams, and Mr. Charles bring this cause of action on behalf of themselves and the class.
COUNT THREE (VIOLATION OF EIGHTH AMENDMENT EXCESSIVE BAIL CLAUSE)
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80. The allegations contained in paragraphs 1 through 79 above are repeated and realleged as though fully set forth herein.
81. The Excessive Bail Clause of the Eighth Amendment prevents prolonged detention without a bond hearing when there is no compelling government interest other than the prevention of flight.
82. Prolonged no-bond detention under Section 1226(c) violates the requirements of the Excessive Bail Clause of the Eighth Amendment.
83. The more than six-month-long, no-bond detention of Mr. Reid, Mr. Williams, and Mr. Charles, none of whom pose a danger to the community or is a flight risk, serves no compelling government interest.
84. The government has no compelling interest in denying all class members any opportunity to receive a meaningful bond hearing before a neutral decision-maker.
85. Petitioners’ continued detention violates the Excessive Bail Clause of the Eighth Amendment.
86. Mr. Reid, Mr. Williams, and Mr. Charles bring this cause of action on behalf of themselves and the class.
PRAYER FOR RELIEF WHEREFORE, Petitioners ask this Court to grant the following relief:
(1) Certify this case either as a class under Rule 23 or a representative habeas class; (2) Enter a judgment declaring that Defendants-Respondents’ prolonged no-bond detention
of the named representatives and other members of the class is unconstitutional; (3) Issue a writ of habeas corpus requiring Defendants-Respondents to release Petitioners
immediately unless they are provided constitutionally valid individualized hearings,
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Case 3:13-cv-30125-PBS Document 421 Filed 10/24/18 Page 19 of 21 either in the form of individualized bond hearings where the government must prove danger and flight risk by clear and convincing evidence, or alternatively, individualized reasonableness hearings where the government must prove by clear and convincing evidence that no-bond detention remains reasonable, followed by hearings on danger and flight risk where the government fails to show that no-bond detention remains reasonable; (4) Issue an injunction ordering Defendants-Respondents not to detain Petitioners under 8 U.S.C. § 1226(c) without conducting an individualized bond hearing; or, in the alternative, issue an injunction ordering Defendants-Respondents not to detain Petitioners unless an immigration judge conducts a reasonableness hearing for all class members and an individualized bond hearing for any class member whose no-bond detention is found unreasonable by the IJ; (5) Award Petitioners reasonable costs and attorney’s fees; and (6) Grant any other relief that this Court may deem fit and proper.
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Case 3:13-cv-30125-PBS Document 421 Filed 10/24/18 Page 20 of 21

Date: October 24, 2018
Respectfully submitted,
/s/ Marisol Orihuela
Erin Drake, Law Student Intern Clare Kane, Law Student Intern Aseem Mehta, Law Student Intern* Amber Qureshi, Law Student Intern Marisol Orihuela† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Svcs. Org. P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 Fax: (203) 432-1426 marisol.orihuela@ylsclinics.org michael.wishnie@ylsclinics.org
Ahilan T. Arulanantham† ACLU Immigrants’ Rights Project 1313 West 8th Street Los Angeles, CA 90017 213-977-5211 aarulanantham@aclusocal.org

Anant K. Saraswat (BBO# 676048) Wolf, Greenfield & Sacks, P.C. 600 Atlantic Avenue Boston, MA 02210 Tel: 617-646-8000 Fax: 617-646-8646 anant.saraswat@wolfgreenfield.com
Michael K.T. Tan† ACLU Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 212-519-7848 (p) 212-549-2654 (f) mtan@aclu.org
Counsel for Plaintiffs
* Law student appearance forthcoming. † Admitted pro hac vice.

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Case 3:13-cv-30125-PBS Document 421 Filed 10/24/18 Page 21 of 21

CERTIFICATE OF SERVICE
I hereby certify that, on October 24, 2018, a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system.

Date: October 24, 2018

Respectfully submitted,

_/s/ Michael J. Wishnie________ Michael J. Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 P: (203) 432-4800 F: (203) 432-1426

21

 </s>          819  F.3d  486  (2016)  
Mark  Anthony  REID,  Petitioner,  Appellee/Cross-­Appellant,   v.  
Christopher  DONELAN,  Sheriff,  Franklin  County,  Massachusetts;;  David   A.  Lanoie,  Superintendent,  Franklin  County  Jail  and  House  of   Correction;;  Thomas  M.  Hodgson,  Sheriff,  Bristol  County,  
Massachusetts;;  Joseph  D.  McDonald,  Jr.,  Sheriff,  Plymouth  County,   Massachusetts;;  Steven  W.  Tompkins,  Sheriff,  Suffolk  County,  
Massachusetts;;  Jeh  Charles  Johnson,  United  States  Secretary  of   Homeland  Security;;  Dorothy  Herrera-­Niles,  Director,  Immigration  and   Customs  Enforcement,  Boston  Field  Office;;  John  T.  Morton,  Director  of   Immigration  and  Customs  Enforcement;;  Eric  H.  Holder,  Jr.,  Attorney   General;;  Juan  Osuna,  Director  of  the  Executive  Office  for  Immigration  
Review;;  Executive  Office  for  Immigration  Review,  Respondents,   Appellants/Cross-­Appellees.  
Nos.  14-­1270,  14-­1803,  14-­1823.  
United  States  Court  of  Appeals,  First  Circuit.  
April  13,  2016.  
490*490  Appeals  from  the  United  States  District  Court  for  the  District  of  Massachusetts,   [Hon.  Michael  A.  Ponsor,  U.S.  District  Judge].  
Elianis  N.  Perez,  Senior  Litigation  Counsel,  with  whom  Joyce  Branda,  Acting  Assistant   Attorney  General,  Civil  Division,  William  C.  Peachey,  Director,  Office  of  Immigration   Litigation,  District  Court  Section,  Colin  A.  Kisor,  Deputy  Director,  and  Regan  Hildebrand,   Senior  Litigation  Counsel,  Officer  of  Immigration  Litigation,  District  Court  Section,  were  on   brief,  for  appellant.  
Anant  K.  Saraswat  and  Swapna  C.  Reddy,  Law  Student  Intern,  with  whom  Mark  C.  Fleming,   Wilmer  Cutler  Pickering  Hale  and  Dorr  LLP,  Ahilan  T.  Arulanantham,  Michael  Tan,  ACLU   Immigrants'  Rights  Project,  Nicole  Hallett,  Supervising  Attorney,  Michael  Wishnie,   Supervising  Attorney,  Conchita  Cruz,  Law  Student  Intern,  Grace  Kao,  Law  Student  Intern,   Lunar  Mai,  Law  Student  Intern,  My  Khanh  Ngo,  Law  Student  Intern,  Ruth  Swift,  Law   Student  Intern,  and  Jerome  N.  Frank  Legal  Services,  were  on  brief,  for  appellee.  
491*491  Before  HOWARD,  Chief  Judge,  SELYA  and  STAHL,  Circuit  Judges.  

STAHL,  Circuit  Judge.  
Under  8  U.S.C.  §  1226(c),  aliens  who  have  committed  certain  criminal  offenses  are  subject   to  mandatory  detention  after  serving  their  criminal  sentence  and  pending  their  removal   proceedings.  Petitioner,  a  lawful  permanent  resident,  committed  such  offenses,  served  his   sentence,  and  then  was  held  under  §  1226(c)  without  an  individualized  showing  that  he   posed  a  flight  risk  or  danger  to  society  and  without  an  opportunity  to  seek  release  on  bond.   After  eight  months,  Petitioner  challenged  his  continuing  detention  and  filed  a  class  action  on   behalf  of  himself  and  similarly  situated  noncitizens  held  for  over  six  months.  
The  district  court  held  that  detention  pursuant  to  §  1226(c)  for  over  six  months  was   presumptively  unreasonable  and  granted  summary  judgment  to  the  class,  thereby  entitling   each  class  member  to  a  bond  hearing.  With  respect  to  Petitioner,  the  court  also  held,  in  the   alternative,  that  the  individualized  circumstances  of  his  case  rendered  his  detention   unreasonable.  Finally,  the  court  declined  to  mandate  certain  procedural  protections  for  the   class  members'  bond  hearings.  We  affirm  the  judgment  with  respect  to  Petitioner,  vacate   the  judgment  with  respect  to  the  class  members,  and  remand  the  class  action  for   reconsideration  of  the  district  court's  class  certification.  
I.  Facts  &  Background  
The  U.S.  Department  of  Homeland  Security  ("DHS")  generally  has  the  discretionary   authority  to  detain  an  alien  during  removal  proceedings.  8  U.S.C.  §  1226(a).  An  alien  that   U.S.  Immigration  and  Customs  Enforcement  ("ICE")  decides  to  detain  under  §  1226(a)  may   seek  a  bond  hearing  before  an  immigration  judge  ("IJ")  to  show  that  he  or  she  is  not  a  flight   risk  or  a  danger.  8  C.F.R.  §  236.1(c)(8).  For  aliens  who  have  committed  certain  criminal  or   terrorist  offenses,  however,  Congress  made  detention  during  removal  proceedings   mandatory,  except  for  witness  protection  purposes.  8  U.S.C.  §  1226(c).  
Mark  Anthony  Reid  ("Reid"  or  "Petitioner")  came  to  the  United  States  in  1978  as  a  lawful   permanent  resident.  Between  1978  and  1986,  Reid  served  in  the  U.S.  Army,  pursued  post-­ secondary  education,  was  employed  as  a  loan  originator,  worked  in  construction,  and   owned  and  rented  several  properties.  Following  a  conviction  for  narcotics  possession  in   1986,  however,  Reid  amassed  an  extensive  criminal  record,  including  larceny,  assault,  drug   and  weapon  possession,  failure  to  appear,  interfering  with  an  officer,  driving  on  a   suspended  license,  selling  drugs,  violation  of  probation,  and  burglary.  
After  being  released  from  criminal  custody  on  November  13,  2012,  Reid  was  detained  by   ICE  under  §  1226(c)  without  bond  pending  immigration  removal  proceedings.  Reid   conceded  the  factual  allegations  underlying  his  removability  charges,  but  sought  relief  from   removal  on  two  grounds:  (1)  that  the  Convention  Against  Torture  ("CAT")  applied,  and  (2)   that  removal  was  a  disproportionate  punishment  for  his  crimes.  
At  several  IJ  hearings  held  between  February  13,  2013  and  March  11,  2013,  Reid   presented  evidence  in  support  of  his  application  for  relief  from  removal.  On  April  5,  2013,   the  IJ  denied  Reid's  application  and  ordered  him  removed  to  Jamaica.  Reid  filed  a  notice  of   appeal  to  the  Board  of  Immigration  Appeals  ("BIA")  on  May  5,  2013.  On  October  23,  2013,   nearly  half  a  year  after  the  IJ's  decision  and  nearly  a  full  year  after  Reid's  detention  began,  

the  BIA  reversed  and  remanded  the  case  for  492*492  further  proceedings  related  to  Reid's   CAT  claim.  On  December  17,  2013,  the  IJ  again  denied  Reid's  CAT  claim.  Reid  appealed   again  and,  on  December  29,  2014,  the  BIA  found  error  and  remanded  the  case  once  more.  
Between  his  first  appeal  and  the  BIA's  first  remand,  Reid  filed  the  present  habeas  corpus   petition  along  with  a  class-­action  complaint  in  the  United  States  District  Court  for  the  District   of  Massachusetts.  Reid  contends  that  he  and  other  similarly  situated  noncitizens  cannot  be   held  under  §  1226(c)  in  prolonged  detention  without  an  individualized  bond  hearing  to   ascertain  individual  flight  or  safety  risk.  Reid  argues  that  §  1226(c)  contains  an  implicit   "reasonableness"  requirement  and  should  be  read  to  authorize  mandatory  detention  only  up   to  six  months,  at  which  time  the  government  must  provide  a  bond  hearing.  At  the  bond   hearing,  Reid  argues,  the  government  must  bear  the  burden  of  presenting  clear  and   convincing  evidence  that  detention  remains  necessary.  What  is  more,  Reid  contends  that   the  government  must  employ  the  least  restrictive  means  available  to  prevent  the  alien's   flight  or  danger  to  the  community.  
On  January  9,  2014,  the  district  court  granted  Reid's  habeas  petition  and  held  that  §   1226(c)  only  authorizes  mandatory  detention  for  a  reasonable  period  of  time.  Reid  v.   Donelan  (Reid  I),  991  F.Supp.2d  275,  278-­79  (D.Mass.2014).  The  court  further  held  that   detention  over  six  months  was  presumptively  unreasonable  absent  individualized   justification.  Id.  at  279-­81.  The  court  also  noted  that  even  if  no  such  presumption  applied,   the  individualized  circumstances  of  Reid's  case  rendered  his  continued  detention   unreasonable.  Id.  at  281-­82.  The  court  ordered  the  government  to  set  a  hearing  and  to   determine  whether  conditions  could  be  placed  upon  Reid's  release  to  reasonably  account   for  any  flight  or  safety  risks.  Id.at  282.  On  February  25,  2014,  Reid  posted  bond  and  was   released  after  400  days  of  civil  detention,  subject  to  electronic  monitoring,  monthly   reporting,  and  other  conditions.  
On  May  27,  2014,  the  district  court  granted  summary  judgment  in  the  related  class  action   and  ordered  bond  hearings  for  all  class  members.  Reid  v.  Donelan  (Reid  II),22  F.Supp.3d   84,  93-­94  (D.Mass.2014).  The  court  reiterated  its  holding  that  §  1226(c)  only  justifies   mandatory  detention  for  a  period  of  six  months,  at  which  time  the  detention  becomes   presumptively  unreasonable  absent  an  individualized  showing  at  a  bond  hearing.  Id.  at  88.   However,  the  court  declined  to  adopt  any  specific  procedural  protections  for  the  bond   hearings  themselves.  Id.  at  92-­93.  The  court  observed  that  aliens  detained  under  §  1226(a)   bore  the  burden  of  proof  at  their  bond  hearings,  and  "individuals  who  committed  a  §  1226(c)   predicate  offense  should  not  receive  more  protections  than  §  1226(a)  detainees."  Id.  at  92.  
The  government  appeals  the  lower  court's  determination  that  §  1226(c)  contains  an  implicit   reasonableness  requirement,  that  any  detention  under  §  1226(c)  is  presumptively   unreasonable  after  six  months,  and  that  Reid's  specific  detention  had  become   unreasonable.  Reid  cross-­appeals  the  lower  court's  class  determination  that  bond  hearings   for  aliens  held  pursuant  to  §  1226(c)  do  not  require  specific  procedural  protections.  
II.  Analysis  
Until  the  late  1980s,  the  Attorney  General  had  broad  authority  to  take  aliens  into  custody   during  their  removal  proceedings  and  to  release  those  aliens  in  his  discretion.  See  Demore  

v.  Kim,  538  U.S.  510,  519,  123  S.Ct.  1708,  155  L.Ed.2d  724  (2003)  (citing  8  U.S.C.  §   1252(a)  (1982)).  Over  time,  Congress  became  concerned  that  493*493  criminal  aliens  too   often  obtained  release  and  were  thereby  able  to  evade  removal  and  continue  committing   crimes.  See  id.  at  518-­21,  123  S.Ct.  1708.  In  response,  "Congress  limited  the  Attorney   General's  discretion  over  custody  determinations  with  respect  to  deportable  aliens  who  had   been  convicted  of  aggravated  felonies"  and  then  expanded  the  definition  of  "aggravated   felonies"  in  subsequent  legislation  to  subject  more  criminal  aliens  to  mandatory   detention.  Id.  at  520-­21,  123  S.Ct.  1708.  "At  the  same  time,  however,  Congress  ...   authorize[d]  the  Attorney  General  to  release  permanent  resident  aliens  during  their   deportation  proceedings  where  such  aliens  were  found  not  to  constitute  a  flight  risk  or  threat   to  the  community."  Id.  at  521,  123  S.Ct.  1708.  
The  current  take  on  this  mandatory  detention  theme  can  be  found  in  8  U.S.C.  §  1226(c),   which  requires  the  Attorney  General[1]  to  take  criminal  aliens  into  custody  "when   released"[2]  from  criminal  custody  and  only  permits  the  release  of  such  aliens  for  limited   witness  protection  purposes.  See  8  U.S.C.  §  1226(c).  Whatever  the  merits  of  this  approach   may  be  as  a  matter  of  policy,  we  must  ensure  that  the  statute  falls  within  constitutional   limits.  
The  constitutionality  of  the  categorical  detention  scheme  embodied  in  §  1226(c)  was  first   put  to  the  test  in  Demore.  In  Demore,  the  petitioner  launched  a  broad  attack  on  the  statute,   arguing  "that  his  detention  under  §  1226(c)  violated  due  process  because  the  [government]   had  made  no  determination  that  he  posed  either  a  danger  to  society  or  a  flight  risk."  538   U.S.  at  514,  123  S.Ct.  1708.  In  other  words,  the  petitioner  argued  that  his  detention  was   unconstitutional  from  the  outsetdue  to  the  categorical  nature  of  the  mandatory  detention   regime.  
The  Supreme  Court  rejected  the  challenge  and  upheld  the  statute  in  a  narrowly  framed   ruling.  The  Court  recognized  the  constitutional  pressures  at  play,  calling  it  "well  established   that  the  Fifth  Amendment  entitles  aliens  to  due  process  of  law  in  deportation   proceedings."  Id.  at  523,  123  S.Ct.  1708  (quoting  Reno  v.  Flores,  507  U.S.  292,  306,  113   S.Ct.  1439,  123  L.Ed.2d  1  (1993)).  Yet,  the  Court  also  noted  that  "[d]etention  is  necessarily   a  part  of  [the]  deportation  procedure,"  id.  at  524,  123  S.Ct.  1708  (alteration  in  original)   (quoting  Carlson  v.  Landon,  342  U.S.  524,  538,  72  S.Ct.  525,  96  L.Ed.  547  (1952)),  and  that   Congress  may  employ  "reasonable  presumptions  and  generic  rules"  when  legislating  with   respect  to  aliens,  id.  at  526,  123  S.Ct.  1708  (quoting  Flores,  507  U.S.  at  313,  113  S.Ct.   1439).  Accordingly,  the  Court  left  a  limited  degree  of  constitutional  space  to  Congress'   categorical  judgment  that,  "even  with  individualized  screening,  releasing  deportable  criminal   aliens  on  bond  would  lead  to  an  unacceptable  rate  of  flight."  Id.at  520,  123  S.Ct.  1708.  
The  "limited"  scope  of  this  categorical  sanction,  however,  was  plainly  evident.  The  Court   made  the  brevity  of  the  detention  central  to  its  holding:  "We  hold  that  Congress,  justifiably   concerned  that  deportable  criminal  aliens  who  are  not  detained  continue  to  engage  in  crime   and  fail  494*494  to  appear  for  their  removal  hearings  in  large  numbers,  may  require  that   persons  such  as  respondent  be  detained  for  the  brief  period  necessary  for  their  removal   proceedings."  Id.  at  513,  123  S.Ct.  1708  (emphasis  added).  This  was  no  passing   remark.  See  id.  at  526,  123  S.Ct.  1708  ("[T]he  Government  may  constitutionally  detain   deportable  aliens  during  the  limited  period  necessary  for  their  removal  proceedings."  

(emphasis  added)).  Indeed,  the  Court  took  pains  to  point  out  the  specific  durations  that  it   envisioned  were  encompassed  by  its  holding:  "[T]he  detention  at  stake  under  §  1226(c)   lasts  roughly  a  month  and  a  half  in  the  vast  majority  of  cases  in  which  it  is  invoked,  and   about  five  months  in  the  minority  of  cases  in  which  the  alien  chooses  to  appeal."  Id.  at  530,   123  S.Ct.  1708.  
In  a  concurring  opinion,  Justice  Kennedy  drove  the  point  of  temporal  limitations  home,   noting  that  an  alien  "could  be  entitled  to  an  individualized  determination  as  to  his  risk  of   flight  and  dangerousness  if  the  continued  detention  became  unreasonable  or   unjustified."  Id.  at  532,  123  S.Ct.  1708  (Kennedy,  J.,  concurring).  "Were  there  to  be  an   unreasonable  delay  by  the  [government]  in  pursuing  and  completing  deportation   proceedings,  it  could  become  necessary  then  to  inquire  whether  the  detention  is  not  to   facilitate  deportation,  or  to  protect  against  risk  of  flight  or  dangerousness,  but  to  incarcerate   for  other  reasons."  Id.  at  532-­33,  123  S.Ct.  1708.  
The  case  before  us  tests  the  assumption  upon  which  Demore  was  based,  and  asks  whether   Congress  may  employ  categorical,  mandatory  detention  for  "the  period  necessary  for   removal  proceedings"  when  that  period  turns  out  not  to  be  so  "brief"  after  all.  
The  concept  of  a  categorical,  mandatory,  and  indeterminate  detention  raises  severe   constitutional  concerns.  "Freedom  from  imprisonment  —  from  government  custody,   detention,  or  other  forms  of  physical  restraint  —  lies  at  the  heart  of  the  liberty  that  [the  Due   Process]  Clause  protects."  Zadvydas  v.  Davis,  533  U.S.  678,  690,  121  S.Ct.  2491,  150   L.Ed.2d  653  (2001).  Because  of  the  limited  nature  of  the  holding  in  Demore,  every  federal   court  of  appeals  to  examine  §  1226(c)  has  recognized  that  the  Due  Process  Clause   imposes  some  form  of  "reasonableness"  limitation  upon  the  duration  of  detention  that  can   be  considered  justifiable  under  that  statute.  See  Lora  v.  Shanahan,  804  F.3d  601,  606  (2d   Cir.2015);;  Rodriguez  v.  Robbins  (Rodriguez  I),  715  F.3d  1127,  1138  (9th  Cir.  2013);;  Diop  v.   ICE/Homeland  Sec.,  656  F.3d  221,  232-­33  (3d  Cir.2011);;  Ly  v.  Hansen,  351  F.3d  263,  269-­ 70  (6th  Cir.2003).  And,  each  circuit  has  found  it  necessary  to  read  an  implicit   reasonableness  requirement  into  the  statute  itself,  generally  based  on  the  doctrine  of   constitutional  avoidance.  See  Lora,  804  F.3d  at  614;;  Rodriguez  I,  715  F.3d  at   1138;;  Diop,  656  F.3d  at  235;;  Ly,  351  F.3d  at  270.  
This  is  not,  as  the  government  contends,  contrary  to  congressional  intent.  "[C]ourts  interpret   statutes  with  the  presumption  that  Congress  does  not  intend  to  pass  unconstitutional   laws."  Diop,  656  F.3d  at  231.  In  this  case,  "while  Congress  did  express  a  desire  to  have   certain  criminal  aliens  incarcerated  during  removal  proceedings,  it  also  made  clear  that   such  proceedings  were  to  proceed  quickly."  Ly,  351  F.3d  at  269;;  see  also  Diop,  656  F.3d  at   235  ("We  do  not  believe  that  Congress  intended  to  authorize  prolonged,  unreasonable[  ]   detention  without  a  bond  hearing.").  This  reading  similarly  accords  with  Demore's   authorization  of  only  a  "brief"  or  "limited"  detention,  538  U.S.  at  513,  526,  123  S.Ct.   1708,  and  Justice  Kennedy's  stipulation  that  an  individualized  determination  would  become   necessary  "if  the  continued  495*495  detention  became  unreasonable  or  unjustified,"  id.at   532,  123  S.Ct.  1708  (Kennedy,  J.,  concurring).  
Yet,  the  courts  of  appeals  have  split  on  the  method  for  enforcing  this  statutory   reasonableness  requirement.  The  Third  and  Sixth  Circuits  have  held  that  individualized  

review  is  necessary  in  order  to  determine  whether  the  detention  has  become   unreasonable.  See  Diop,  656  F.3d  at  233  (noting  that  the  inquiry  into  whether  detention  has   become  unreasonable  "will  necessarily  be  a  fact-­dependent  inquiry  that  will  vary  depending   on  individual  circumstances"  and  "declin[ing]  to  establish  a  universal  point  at  which   detention  will  always  be  considered  unreasonable");;  Ly,  351  F.3d  at  271  ("A  bright-­line  time   limitation...  would  not  be  appropriate....  [C]ourts  must  examine  the  facts  of  each  case[  ]  to   determine  whether  there  has  been  unreasonable  delay  in  concluding  removal   proceedings.").  "Under  this  approach,  every  detainee  must  file  a  habeas  petition  challenging   detention,  and  the  district  courts  must  then  adjudicate  the  petition  to  determine  whether  the   individual's  detention  has  crossed  the  `reasonableness'  threshold,  thus  entitling  him  to  a  bail   hearing."  Lora,  804  F.3d  at  614;;  see  also  Ly,  351  F.3d  at  272.  
The  Second  and  Ninth  Circuits,  on  the  other  hand,  have  "appl[ied]  a  bright-­line  rule  to  cases   of  mandatory  detention"  and  have  held  that  "the  government's  `statutory  mandatory   detention  authority  under  Section  1226(c)  ...  [is]  limited  to  a  six-­month  period,  subject  to  a   finding  of  flight  risk  or  dangerousness.'"  Lora,  804  F.3d  at  614(alterations  in  original)   (quoting  Rodriguez  I,  715  F.3d  at  1133).  Under  this  interpretation,  every  alien  held  pursuant   to  §  1226(c)  must  be  provided  a  bond  hearing  once  his  or  her  detention  reaches  the  six-­ month  mark,  because  any  categorical  and  mandatory  detention  beyond  that  timeframe  is   presumptively  unreasonable.  Id.  at  616.  The  detainee  may  continue  to  be  held  if  an  IJ   determines  that  the  individual  does,  in  fact,  pose  a  flight  risk  or  danger  to  society,  but  the   categorical  nature  of  the  detention  expires.  Id.  
In  this  circuit  split,  we  sense  a  tension  between  legal  justifications  and  practical   considerations.  From  a  strictly  legal  perspective,  we  think  that  the  Third  and  Sixth  Circuits   have  the  better  of  the  argument.  This  view  is  informed  by  our  analysis  regarding  the  source   of  the  six-­month  rule,  the  nature  of  the  reasonableness  inquiry  itself,  and  the  circumstances   surrounding  the  Supreme  Court's  Demoredecision.  
To  justify  employing  a  six-­month  presumption,  the  Second  and  Ninth  Circuits  point  to  the   Supreme  Court's  decision  in  Zadvydas.  There,  the  Court  was  faced  with  a  particularly   thorny  problem.  Aliens  who  had  been  deemed  unlawfully  present,  had  completed  removal   proceedings,  and  had  a  final  removal  order  entered  against  them  were  subject  to  detention   during  a  90-­day  statutory  "removal  period"  while  the  government  secured  their  physical   removal  from  the  country.  533  U.S.  at  682,  121  S.Ct.  2491.  If  the  government  failed  to   remove  the  alien  from  the  country  during  this  time  period,  the  government  could  continue  to   detain  them  for  successive  periods  so  long  as  they  posed  a  risk  to  the  community  or  were   unlikely  to  comply  with  the  order  of  removal  when  such  physical  removal  became   possible.  Id.  The  trouble  arose  when,  for  one  reason  or  another,  there  was  simply  no   country  willing  to  accept  the  alien  and  no  reasonably  foreseeable  point  at  which  the   detained  individual  would  ever  be  released  from  this  theoretically  interim  detention.  Id.  at   684-­86,  121  S.Ct.  2491.  The  question  thus  became  "whether  [the]  post-­removal-­period   statute  authorize[d]  the  Attorney  General  to  detain  a  removable   alien  indefinitely  496*496  beyond  the  removal  period  or  only  for  a  period  reasonably   necessary  to  secure  the  alien's  removal."  Id.  at  682,  121  S.Ct.  2491.  
There,  as  here,  the  solution  was  to  read  an  implicit  reasonableness  limitation  into  the   statute  to  avoid  constitutional  conflict.  Id.  at  689,  121  S.Ct.  2491.  The  Court  held  that  "if  

removal  is  not  reasonably  foreseeable,"  then  "continued  detention  ...  [is]  no  longer   authorized  by  [the]  statute."  Id.  at  699-­700,  121  S.Ct.  2491.  The  Court  then  went  one  step   further  and  adopted  a  six-­month  presumption:  "After  [a]  [six]-­month  period,  once  the  alien   provides  good  reason  to  believe  that  there  is  no  significant  likelihood  of  removal  in  the   reasonably  foreseeable  future,  the  Government  must  respond  with  evidence  sufficient  to   rebut  that  showing."  Id.  at  701,  121  S.Ct.  2491.  
Although  it  is  tempting  to  transplant  this  presumption  into  §  1226(c)  based  on  the  superficial   similarities  of  the  problems  posed,  such  a  presumption  has  no  place  here.  Unlike  the  "post-­ removal-­period  detention"  at  issue  in  Zadvydas,  which  had  "no  obvious  termination  point,"  a   "detention  pending  a  determination  of  removability"  under  §  1226(c)  has  "a  definite   termination  point."  Demore,  538  U.S.  at  529,  123  S.Ct.  1708  (quoting  Zadvydas,  533  U.S.  at   697,  121  S.Ct.  2491).  Just  because  the  conclusion  of  removal  proceedings  may  not  be   imminent  does  not  mean  the  conclusion  is  not  reasonably  foreseeable.  Why  does  this   distinction  matter?  Because  the  six-­month  presumption  developed  in  Zadvydas  would  never   be  triggered  under  the  circumstances  found  here.  
In  adopting  a  bright-­line  six-­month  rule,  the  Second  and  Ninth  Circuits  have  looked  past  the   primary  lesson  of  Zadvydas  and  fixated  on  a  secondary,  backup  rule.  In  Zadvydas,  the   Court  read  an  implicit  reasonableness  limitation  into  the  statute  and  then  noted  that  judges   evaluating  such  cases  "should  measure  reasonableness  primarily  in  terms  of  the  statute's   basic  purpose."  533  U.S.  at  699,  121  S.Ct.  2491.  When  faced  with  a  detention  with  no   reasonably  foreseeable  end,  the  statute's  purpose  —  "namely,  assuring  the  alien's   presence  at  the  moment  of  removal"  —  was  drawn  into  doubt,  making  continued  detention   "unreasonable  and  no  longer  authorized  by  [the]  statute."  Id.  at  699-­700,  121  S.Ct.  2491.  
This  primary  holding  was  then  buttressed  by  a  secondary  bright-­line  six-­month  rule.  The   Court  pointed  out  that  not  every  alien  to  be  removed  would  be  released  after  six  months.   "To  the  contrary,  an  alien  may  be  held  in  confinement  until  it  has  been  determined  that   there  is  no  significant  likelihood  of  removal  in  the  reasonably  foreseeable  future."  Id.  at  701,   121  S.Ct.  2491.  If  six  months  had  passed  and  the  alien  had  demonstrated  "no  significant   likelihood  of  removal  in  the  reasonably  foreseeable  future,"  then  the  government  was   required  to  "respond  with  evidence  sufficient  to  rebut  that  showing."  Id.  If  the  government   could  demonstrate  a  reasonably  foreseeable  termination  point,  the  detention  continued.  
Thus,  the  secondary  six-­month  rule  was  predicated  on  there  being  no  foreseeable  hope  of   removal.  Unlike  in  this  case,  the  confinement  at  issue  in  Zadvydas  was  "potentially   permanent."  Id.  at  691,  121  S.Ct.  2491.  Because  the  detention  in  such  cases  had  to  stop   at  some  point,  and  there  were  simply  no  metrics  by  which  to  judge  just  how  much  longer   towards  eternity  could  be  considered  "reasonable,"  a  bright-­line  rule  was  warranted.  That  is   why  we  think  it  inappropriate  to  import  the  six-­month  presumption  from  Zadvydas  into  a   statute  where  individualized  reasonableness  review  remains  feasible.  
497*497  This  brings  us  to  the  character  of  the  "reasonableness"  inquiry  itself.  As   the  Diop  court  pointed  out,  "[r]easonableness,  by  its  very  nature,  is  a  fact-­dependent  inquiry   requiring  an  assessment  of  all  of  the  circumstances  of  any  given  case."  656  F.3d  at  234.   The  reasonableness  of  continued  detention  under  §  1226(c)  must  be  measured  "primarily  in   terms  of  the  statute's  basic  purpose."  Zadvydas,  533  U.S.  at  699,  121  S.Ct.  2491.  Although  

the  statute's  purpose  at  first  glance  is  to  protect  public  safety  and  ensure  that  aliens  appear   for  their  removal  proceedings,  we  think  the  purpose  is  a  bit  more  nuanced  than  that.  If  an   individualized  determination  of  flight  and  safety  risk  were  sufficient,  for  example,  there   would  be  little  reason  to  pass  §  1226(c)  at  all.  
Instead,  the  statute  was  passed  "against  a  backdrop  of  wholesale  failure  by  the  INS  to  deal   with  increasing  rates  of  criminal  activity  by  aliens"  and  "near-­total  inability  to  remove   deportable  criminal  aliens"  due  to  "the  agency's  failure  to  detain  [such]  aliens  during  their   deportation  proceedings."  Demore,  538  U.S.  at  518-­19,  123  S.Ct.  1708.  Thus,  the   animating  force  behind  §  1226(c)  is  its  categorical  and  mandatory  treatment  of  a  certain   class  of  criminal  aliens.  Measuring  reasonableness  by  this  basic  purpose  requires  a   different  inquiry  than  the  flight-­and-­safety-­risk  evaluation  conducted  in  an  individualized   bond  hearing.  Therefore,  arguing  that  aliens  receive  the  equivalent  of  an  individualized   "reasonableness"  review  at  their  bond  hearings  entails  a  certain  judicial  sleight-­of-­ hand.  See  Rodriguez  I,  715  F.3d  at  1139.  It  is  a  supposed  finding  of  "unreasonableness"   under  the  implicit  statutory  limitation  that  entitles  the  alien  to  a  bond  hearing  in  the  first   place.  In  other  words,  while  the  Second  and  Ninth  Circuits  claim  to  have  read  an  implicit   "reasonableness  limitation"  into  §  1226(c),  we  think  it  more  accurate  to  say  that  they  have   simply  read  an  implicit  "six-­month  expiration"  into  §  1226(c).  
Finally,  we  view  Demore  as  implicitly  foreclosing  our  ability  to  adopt  a  firm  six-­month  rule.   In  Demore,  the  Supreme  Court  declined  to  state  any  specific  time  limit  in  a  case  involving  a   detainee  who  had  already  been  held  for  approximately  six  months.  See  538  U.S.  at  530-­31,   123  S.Ct.  1708  (noting  that  most  removal  proceedings  usually  require  one  to  five  months,   and  that  the  respondent  had  been  "detained  for  somewhat  longer  than  the  average  —   spending  six  months  in  INS  custody  prior  to  the  ...  habeas  relief");;  Ly,  351  F.3d  at   271  (noting  that  Demore"specifically  authorized  such  detention  in  the  circumstances  there").   The  DemoreCourt  also  briefly  discussed  facts  specific  to  the  detainee,  such  as  his  request   for  a  continuance  of  his  removal  hearing.  538  U.S.  at  531  &  n.  15,  123  S.Ct.  1708.  Taken   together,  Zadvydas,  Demore,  and  the  inherent  nature  of  the  "reasonableness"  inquiry  weigh   heavily  against  adopting  a  six-­month  presumption  of  unreasonableness.  
From  a  more  practical  standpoint,  however,  the  approach  employed  by  the  Third  and  Sixth   Circuits  has  little  to  recommend  it.  Reid  and  his  amici  point  to  a  plethora  of  problems  raised   by  the  method.  First,  the  approach  has  resulted  in  wildly  inconsistent   determinations.  See  Lora,  804  F.3d  at  615  (collecting  cases  and  noting  that  "the  pervasive   inconsistency  and  confusion  exhibited  by  district  courts  ...  when  asked  to  apply  a   reasonableness  test  on  a  case-­by-­case  basis  weighs,  in  our  view,  in  favor  of  adopting  an   approach  that  affords  more  certainty  and  predictability").  
Second,  the  failure  to  adopt  a  bright-­line  rule  may  have  the  perverse  effect  of  increasing   detention  times  for  those  least  likely  to  actually  be  removed  at  the  conclusion  of  their   proceedings.  See  Rodriguez  498*498  v.  Robbins  (Rodriguez  II),  804  F.3d  1060,  1072  (9th   Cir.2015)  ("Non-­citizens  who  vigorously  pursue  claims  for  relief  from  removal  face   substantially  longer  detention  periods  than  those  who  concede  removability.").  Moreover,   federal  habeas  litigation  itself  is  both  complicated  and  time-­consuming,  especially  for  aliens   who  may  not  be  represented  by  counsel.  See  Lora,  804  F.3d  at  615  ("[A  six-­month]  rule   avoids  the  random  outcomes  resulting  from  individual  habeas  litigation  in  which  some  

detainees  are  represented  by  counsel  and  some  are  not,  and  some  habeas  petitions  are   adjudicated  in  months  and  others  are  not  adjudicated  for  years.").  
Third,  even  courts  that  have  adopted  the  individualized  habeas  approach  have  questioned   the  federal  courts'  "institutional  competence"  to  adjudicate  these  issues  and  the   consequences  of  such  an  interpretation.  See  Ly,  351  F.3d  at  272  (noting  that  the  habeas   approach  raises  "a  question  of  institutional  competence"  since  "federal  courts  are  obviously   less  well  situated  to  know  how  much  time  is  required  to  bring  a  removal  proceeding  to   conclusion").  As  the  Third  Circuit  has  lamented,  federal  courts  are  faced  with  a  "moving   target"  in  such  cases  because  petitioners  presumably  cannot  challenge  their  detention  until   it  becomes  unreasonable,  but,  even  if  the  petitioner  prematurely  lodges  a  challenge,  the   detention  may  become  unreasonable  during  the  pendency  of  the  claim.  See  Diop,  656  F.3d   at  227.  
Moreover,  the  federal  courts'  involvement  is  wastefully  duplicative.  Not  only  may  "the   underlying  removal  proceedings  justifying  detention  ...  be  nearing  resolution  by  the  time  a   federal  court  of  appeals  is  prepared  to  consider  them,"  id.,  but  it  is  also  likely  that  the   evidence  and  arguments  presented  in  a  "reasonableness"  hearing  before  a  federal  court   are  likely  to  overlap  at  the  margins  with  the  evidence  and  arguments  presented  at  a  bond   hearing  before  an  immigration  court.  This  inefficient  use  of  time,  effort,  and  resources  could   be  especially  burdensome  in  jurisdictions  with  large  immigration  dockets.  See  Lora,  804   F.3d  at  615-­16.  
Finally,  Reid  and  his  amici  stress  the  harms  suffered  by  detainees  and  their  families  when   detainees  are  held  in  prolonged  detention.  While  perhaps  beyond  our  judicial  cognizance,   we  do  not  mean  to  diminish  the  real,  human  consequences  of  being  held  for  prolonged   periods  of  time  in  civil  confinement  away  from  family,  friends,  and  loved  ones.  
Despite  the  practical  advantages  of  the  Second  and  Ninth  Circuits'  approach,  however,  we   have  surveyed  the  legal  landscape  and  consider  ourselves  duty-­bound  to  follow  the  trail  set   out  by  the  Third  and  Sixth  Circuits.  A  brightline  rule  may  offer  significant  benefits,  but  these   are  persuasive  justifications  for  legislative  or  administrative[3]  intervention,  not  judicial   decree.  In  the  end,  we  think  the  Third  and  Sixth  Circuits'  individualized  approach  adheres   more  closely  to  legal  precedent  than  the  extraordinary  intervention  requested  by  Petitioner.  
In  conducting  this  individualized  reasonableness  inquiry,  the  district  court  must  evaluate   whether  the  alien's  continued  499*499  detention  sufficiently  serves  the  categorical  purpose   of  the  statute.  This  is  not,  as  the  government  contends,  simply  a  question  of  asking   "whether  there  are  significant,  unjustifiable  delays  in  the  proceedings  ordered  at  the   government's  request  or  other  evidence  demonstrating  that  the  government  is  not  actively   engaged  in  prosecution  of  the  removal  case."  
The  government's  view  of  reasonableness  fails  for  two  reasons.  First,  while   the  Demore  Court  did  not  find  any  specific  duration  dispositive,  the  holding  was  premised   on  the  notion  that  proceedings  would  be  resolved  within  a  matter  of  months,  including  any   time  taken  for  appeal  by  the  detainee.  See  538  U.S.  at  529,  123  S.Ct.  1708.  The  majority   emphasized  that  "[t]he  very  limited  time  of  the  detention  at  stake  under  §  1226(c)  [was]  not   missed  by  the  dissent,"  which  referred  to  proceedings  taking  "several  months."  Id.  at  529  n.  

12,  123  S.Ct.  1708.  The  majority  then  employed  a  "but  see"  citation  with  respect  to  the   dissent's  warning  that  §  1226(c)  could  result  in  a  "potentially  lengthy  detention."  Id.  Thus,   the  Demore  majority  disclaimed  any  suggestion  that  its  decision  somehow  sanctioned   categorical  custody  beyond  a  matter  of  months.  
The  Third  Circuit's  Diop  decision  provides  a  clear  example  of  why  the  government's  reading   must  fail.  In  that  case,  "[t]he  Government  doggedly  pursued  Diop's  detention  and  removal   for  three  years."  Diop,  656  F.3d  at  228.  The  government  did  not  "delay"  proceedings,  and   yet  the  detention  still  reached  an  unreasonable  duration.  As  that  court  noted,  "individual   actions  by  various  actors  in  the  immigration  system,  each  of  which  takes  only  a  reasonable   amount  of  time  to  accomplish,  can  nevertheless  result  in  the  detention  of  a  removable  alien   for  an  unreasonable...  period  of  time."  Id.  at  223.  Total  duration  matters  to  a  person  held  in   civil  confinement,  and  due  process  demands  a  better  answer  than  "we  haven't  gotten   around  to  it  yet."  
The  second  problem  with  the  government's  suggested  reading  is  its  failure  to  focus  on   the  categorical  nature  of  the  detention.  While  detention  under  §  1226(c)  undoubtedly   prevents  flight  and  protects  the  public,  this  argument  involves  the  same  stratagem  used  by   the  Ninth  Circuit  in  finding  bond  hearings  sufficient  to  satisfy  the  implicit  reasonableness   requirement.  The  basic  purpose  of  §  1226(c)  is  not  merely  flight  and  danger  prevention.   After  all,  an  alien  who,  at  a  bond  hearing,  is  found  likely  to  abscond  or  harm  society  could   clearly  remain  in  detention.  The  specific  purpose  of  §  1226(c)  is  to  categorically  deny  bond   hearings  to  a  class  of  aliens  who  may  pose  these  threats.  An  inquiry  into  the   reasonableness  of  categorical  detention  must,  therefore,  be  measured  by  reference  to   Congress'  use  of  "reasonable  presumptions  and  generic  rules"  about  danger  and  flight   risk.  Demore,  538  U.S.  at  526,  123  S.Ct.  1708  (quoting  Flores,  507  U.S.  at  313,  113  S.Ct.   1439).  
Categorical  detention  is  only  permitted  for  a  short  time  as  "a  constitutionally  valid  aspect   of  the  deportation  process."  Id.  at  523,  123  S.Ct.  1708  (emphasis  added).  As  Justice   Kennedy  noted  in  his  Demore  concurrence,  the  government's  categorical  denial  of  bond   hearings  is  premised  upon  the  alien's  presumeddeportability  and  the   government's  presumed  ability  to  reach  the  removal  decision  within  a  brief  period  of   time.  See  id.  at  531,  123  S.Ct.  1708  (Kennedy,  J.,  concurring)  ("While  the  justification  for  8   U.S.C.  §  1226(c)  is  based  upon  the  Government's  concerns  over  the  risks  of  flight  and   danger  to  the  community,  the  ultimate  purpose  behind  the  detention  is  premised  upon  the   alien's  deportability."  (citation  500*500  omitted));;  see  also  Ly,  351  F.3d  at  271-­72  ("The   actual  removability  of  a  criminal  alien  ...  has  bearing  on  the  reasonableness  of  his  detention   prior  to  removal  proceedings.").  In  other  words,  there  is  a  difference  between  the   "foreseeability"  of  proceedings  ending  and  the  "foreseeability"  of  proceedings   ending  adversely.  As  the  likelihood  of  an  imminent  removal  order  diminishes,  so  too  does   the  government's  interest  in  detention  without  a  bond  hearing.  
Thus,  a  court  looking  to  measure  the  reasonableness  of  continued  categorical  detention   must  examine  the  presumptions  upon  which  that  categorical  treatment  was  based  (such  as   brevity  and  removability).  As  the  actualization  of  these  presumptions  grows  weaker  or  more   attenuated,  the  categorical  nature  of  the  detention  will  become  increasingly  unreasonable.   For  example,  a  court  might  examine,  inter  alia,  the  total  length  of  the  detention;;  the  

foreseeability  of  proceedings  concluding  in  the  near  future  (or  the  likely  duration  of  future   detention);;  the  period  of  the  detention  compared  to  the  criminal  sentence;;  the  promptness   (or  delay)  of  the  immigration  authorities  or  the  detainee;;  and  the  likelihood  that  the   proceedings  will  culminate  in  a  final  removal  order.[4]  
501*501  There  may  be  other  factors  that  bear  on  the  reasonableness  of  categorical   detention,  but  we  need  not  strain  to  develop  an  exhaustive  taxonomy  here.  We  note  these   factors  only  to  help  resolve  the  case  before  us  and  to  provide  guideposts  for  other  courts   conducting  such  a  reasonableness  review.  
Applying  the  rule  we  have  adopted  today  to  the  case  at  bar,  we  affirm  the  district  court's   individualized  holding  with  respect  to  Reid's  particular  habeas  petition.  In  its  alternative   holding,  the  district  court  weighed  "the  length  of  detention;;  the  period  of  detention  compared   to  the  criminal  sentence;;  the  foreseeability  of  removal;;  the  prompt  action  of  immigration   authorities;;  and  whether  the  petitioner  engaged  in  any  dilatory  tactics."  Reid  I,  991   F.Supp.2d  at  281.  The  court  also  noted  that  Reid  had  been  detained  for  fourteen  months,   which  was  "well  beyond  the  brief  detainment  contemplated  in  Demore."  Id.  These  factors   aptly  anticipated  those  articulated  above,  and  we  agree  with  the  district  court's  holding  that   Reid's  detention  had  become  unreasonable  under  §  1226(c).  
Moreover,  Reid's  case  had  already  been  through  one  round  of  appeals  and  was  pending   another  round  at  the  time  of  the  lower  court's  decision,  making  final  resolution  "certainly  far   enough  out  to  implicate  due  process  concerns."  Id.  at  282.  None  of  these  appeals  involved   "dilatory  tactics."  Id.  Rather,  Reid  "raised  a  colorable  claim  against  deportation  and  ...   vigorously  contest[ed]  removal."  Id.Finally,  it  should  be  noted  that  although  the  IJ's  initial   order  was  adverse  to  Reid,  the  BIA's  first  decision,  rendered  almost  a  year  after  detention   began,  reversed  and  remanded  the  IJ's  determination,  drawing  into  question  Reid's   presumed  deportability.  
With  respect  to  the  class  claims,  however,  we  must  vacate  the  district  court's  summary   judgment  decision.  The  district  court  certified  a  class  consisting  of  "[a]ll  individuals  who  are   or  will  be  detained  within  the  Commonwealth  of  Massachusetts  pursuant  to  8  U.S.C.  §   1226(c)  for  over  six  months  and  have  not  been  afforded  an  individualized  bond   hearing."  Reid  v.  Donelan,  297  F.R.D.  185,  194  (D.Mass.  2014).  The  court  subsequently   granted  summary  judgment  to  this  class  on  the  basis  of  its  previous  decisions  adopting  the   six-­month  bright-­line  rule.  See  Reid  II,22  F.Supp.3d  at  88-­89.  It  then  examined  the   appropriate  relief,  which  included  a  request  by  Reid  that  the  court  mandate  certain   procedural  protections  at  bond  hearings  —  protections  that  exceed  those  currently   contemplated  by  regulations  implementing  bond  hearings  under  8  U.S.C.  §  1226(a).  The   court  declined  to  impose  these  additional  procedural  protections,  concluding  that  due   process  did  not  require  them.  See  id.  at  92-­93.  Reid  cross-­appeals  this  conclusion,  offering   a  bevy  of  weighty  constitutional  arguments.  
Yet,  Reid's  personal  situation  does  not  warrant  adjudication  of  these  constitutional   questions.  Reid  received  a  bond  hearing  pursuant  to  the  district  court's  order  and  was   granted  bond.  He  has  thus  suffered  no  cognizable  harm  attributable  to  the  challenged   procedures,  and  the  claim  persists  only  with  respect  to  the  class  that  Reid  represents.  The   problem,  however,  is  that  the  district  court's  adoption  of  the  bright-­line  rule  was  an  essential  

predicate  to  class  certification.  Our  ruling  today,  requiring  an  individualized  approach,   removes  that  predicate.  The  class  is  thus  substantially  overbroad  in  light  of  our  disposition.  
When  a  class  representative  lacks  a  live  claim,  and  changes  in  the  law  —  whether  through   legislative  enactment,  see  502*502  Kremens  v.  Bartley,  431  U.S.  119,  130,  97  S.Ct.  1709,   52  L.Ed.2d  184  (1977),  or  judicial  decision,  see  Hartman  v.  Duffey,  19  F.3d  1459,  1470,   1474-­75  (D.C.Cir.1994)  —  cast  substantial  doubt  on  the  composition  of  the  class,  it  is   appropriate  to  remand  for  reconsideration  of  the  class  certification.  This  prudential   procedure  recognizes  that  serious  concerns  about  premature  adjudication  of  constitutional   questions  arise  where  the  legitimacy  of  a  class  is  called  into  question  by  changes  in  the   law.  See  Kremens,  431  U.S.  at  128,  136-­37,  97  S.Ct.  1709;;  Smook  v.  Minnehaha   County,  457  F.3d  806,  815  (8th  Cir.2006).  Those  concerns  are  heightened  where,  as  here,   we  lack  information  about  the  status  of  the  unnamed  class  members,  including  whether  they   have  been  afforded  bond  hearings,  whether  any  of  them  have  been  denied  bond  under  the   challenged  procedures,  and  the  justification  for  those  denials.  Remand  (rather  than   dismissal)  is  also  fairer  to  the  class  members,  especially  since  the  government  has  not   appealed  the  class  certification  order,  and  we  have  no  briefing  from  the  parties  about  the   impact  our  case-­by-­case  rule  has  on  the  class  as  a  whole.  
On  remand,  the  district  court  may  consider  whether  it  is  feasible  to  redefine  the  class,   excluding  those  class  members  with  moot  claims  and  substituting  class  representatives  with   live  claims  as  appropriate.  See  Fed.R.Civ.P.  23;;  Kremens,431  U.S.  at  134-­35,  97  S.Ct.   1709;;  Hartman,  19  F.3d  at  1474.  It  may  well  be  that  no  suitable  class  can  be  formed,  and   that  the  due  process  concerns  presented  by  the  bond  procedures  must  be  raised  by  an   individual  denied  bond  under  these  standards,  in  which  case  decertification  of  the  present   class  is  the  appropriate  course.  See  Smook,  457  F.3d  at  815.  
In  concluding,  we  wish  to  emphasize  that  our  decision  to  read  an  implicit  reasonableness   requirement  into  §  1226(c)  cannot  be  read  so  broadly  as  to  unwind  §  1226(c)'s  mandatory   detention  requirement.  There  is  no  doubt  that  a  challenge  like  Demore's  would  still  fail   today.  Categorical  and  mandatory  detention  for  a  brief,  reasonable  duration  remains   constitutional,  and  any  challenge  to  such  detention  at  the  outset  or  early  stages  of   categorical  custody  must  be  dismissed  without  hesitation.  As  long  as  the  statute  remains  in   effect,  Demore  so  requires.  
Yet,  at  a  certain  point  the  constitutional  imperatives  of  the  Due  Process  Clause  begin  to   eclipse  the  claimed  justifications  for  such  bridling  custodial  power.  When  the  duration  of  this   categorical  custody  exceeds  reasonable  bounds,  the  implicit  terms  of  the  statute  disclaim   any  pretense  to  bolster  the  state's  unconstitutional  bidding.[5]  
III.  Conclusion  
For  the  foregoing  reasons,  the  judgment  is  AFFIRMED  as  to  Reid  and  VACATED  as  to  the   class  members.  Because  we  503*503  reject  the  six-­month  presumption  underlying  the  class   certification  and  judgment,  the  class  action  is  REMANDED  for  reconsideration  of  the   certification  order  in  a  manner  consistent  with  this  decision.  

[1]  Although  the  relevant  statutory  sections  refer  to  the  Attorney  General,  the  Homeland  Security  Act  of  2002,  Pub.L.   No.  107-­296,  116  Stat.  2135  (2002),  transferred  all  immigration  enforcement  and  administration  functions  vested  in   the  Attorney  General,  with  few  exceptions,  to  the  Secretary  of  Homeland  Security.  
[2]  The  instant  case  asks  what  §  1226(c)  requires  after  a  criminal  alien  has  been  brought  into  custody.  This  case   does  not  touch  upon  what  the  statute  requires  at  the  commencement  of  such  detention.  This  circuit  recently   considered  the  meaning  of  the  statute's  "when  ...  released"  provision  in  Castañeda  v.  Souza,  810  F.3d  15  (1st   Cir.2015)  (en  banc).  
[3]  To  be  clear,  it  is  quite  possible  that  the  government  is  less  captive  to  §  1226(c)'s  categorical  command  than  it   believes.  Because  we  read  an  implicit  reasonableness  limitation  into  the  statute  itself,  the  statute  authorizes  a  bond   hearing  as  soon  as  continued,  mandatory  detention  has  reached  the  point  of  being  constitutionally  unreasonable.   Whether  (and  how)  the  government  may  rely  upon  this  implicit  component  of  the  statute  to  streamline  its  detention   procedures  for  aliens  who  have  been  detained  under  §  1226(c)  for  a  prolonged  period  of  time  poses  a  question  for   another  day.  
[4]  These  non-­exhaustive  factors  are  similar  to  those  advanced  by  the  Ly  court.  See  Flores-­Powell  v.   Chadbourne,  677  F.Supp.2d  455,  471  (D.Mass.2010)  (summarizing  the  factors  from  Ly,  351  F.3d  at  271-­72,  that  are   suggestive  of  unreasonable  delay:  "(1)  the  overall  length  of  detention;;  (2)  whether  the  civil  detention  is  for  a  longer   period  than  the  criminal  sentence  for  the  crimes  resulting  in  the  deportable  status;;  (3)  whether  actual  removal  is   reasonably  foreseeable;;  (4)  whether  the  immigration  authority  acted  promptly  to  advance  its  interests;;  and  (5)   whether  the  petitioner  engaged  in  dilatory  tactics  in  the  Immigration  Court").  
Two  clarifications  are  worth  noting  here.  First,  there  is  a  difference  between  "dilatory  tactics"  and  the  exercise  of  an   alien's  rights  to  appeal.  As  the  Ly  court  noted:  
[A]ppeals  and  petitions  for  relief  are  to  be  expected  as  a  natural  part  of  the  process.  An  alien  who  would  not  normally   be  subject  to  indefinite  detention  cannot  be  so  detained  merely  because  he  seeks  to  explore  avenues  of  relief  that  the   law  makes  available  to  him.  Further,  although  an  alien  may  be  responsible  for  seeking  relief,  he  is  not  responsible  for   the  amount  of  time  that  such  determinations  may  take.  The  mere  fact  that  an  alien  has  sought  relief  from  deportation   does  not  authorize  the  INS  to  drag  its  heels  indefinitely  in  making  a  decision.  The  entire  process,  not  merely  the   original  deportation  hearing,  is  subject  to  the  constitutional  requirement  of  reasonability.  
351  F.3d  at  272.  In  Demore,  the  Supreme  Court  held  that  detention  for  a  number  of  months  remains  appropriate  "in   the  minority  of  cases  in  which  the  alien  chooses  to  appeal."  538  U.S.  at  530,  123  S.Ct.  1708  (emphasis  added).   When  an  alien  appeals,  and  the  appeal  occurs  within  this  limited  timeframe,  a  presumption  of  removability  remains   and  a  presumption  of  promptness  remains.  Although  there  may  come  a  time  when  promptness  lapses,  aliens  may  be   detained  for  "several  months"  before  this  point  is  reached.  Id.  at  529  n.  12,  123  S.Ct.  1708.  Of  course,  the  same  logic   would  not  apply  if  a  detainee  prevails  before  an  IJ  and  the  government  appeals.  In  such  cases,  the  presumption  of   ultimate  removability  is  weakened,  rendering  the  alien's  continued  categorical  detention  far  less  reasonable.  (Of   course,  an  IJ  might  still  find  such  an  alien  too  risky  to  release  at  an  individualized  bond  hearing.)  
Second,  we  think  it  worth  noting  that  the  Ninth  Circuit,  in  Rodriguez  II,  recently  rejected  a  proposal  that  an  IJ  consider   "the  likely  duration  of  future  detention  and  the  likelihood  of  eventual  removal"  at  bond  hearings  because  consideration   of  those  factors  "would  require  legal  and  political  analyses  beyond  what  would  otherwise  be  considered  at  a  bond   hearing."  804  F.3d  at  1089.  While  we  agree  that  these  factors  are  not  relevant  at  a  bond  hearing,  where  the  focus  is   on  the  alien's  flight  and  safety  risk,  these  factors  are  relevant  when  a  federal  court  is  conducting  a  reasonableness   inquiry  and  determining  whether  a  bond  hearing  needs  to  be  held  in  the  first  place.  
[5]  Because  our  affirmance  in  this  case  is  limited  to  the  particular  facts  presented  by  Reid's  petition,  we  have  no   occasion  to  consider  here  whether  another  petitioner  might  be  able  to  challenge  the  individualized  reasonableness  of   his  continued  categorical  detention  before  the  immigration  courts  rather  than  the  federal  courts.  The  regulatory  and   statutory  regime  does  not  explicitly  address  the  propriety  of  such  an  approach,  and  the  parties  before  us  have  not   fully  briefed  or  argued  the  issue.  Given  the  shortcomings  of  case-­by-­case  habeas  review  identified  above,  however,  it   would  be  appropriate  for  the  executive  (or  the  legislature,  as  the  case  may  be)  to  consider  explicitly  permitting   detainees  in  the  position  of  the  petitioner  to  seek  a  reasonableness  review  before  a  federal  court  orbefore  an  IJ  more   familiar  with  the  intricacies  of  the  case  and  the  particulars  of  the  underlying  removal  proceedings.  
  

 </s> Reid  v.  Donelan,  Not  Reported  in  Fed.  Rptr.  (2018)   2018  WL  4000993  
  
2018 WL 4000993 Only the Westlaw citation is currently available.
United States Court of Appeals, First Circuit.
Mark Anthony REID, Petitioner, Appellee/Cross-Appellant, v.
Christopher DONELAN, Sheriff, Franklin County, Massachusetts; David A. Lanoie, Superintendent,
Franklin County Jail and House of Correction; Thomas M. Hodgson, Sheriff, Bristol County, Massachusetts; Joseph D. McDonald, Jr., Sheriff, Plymouth County, Massachusetts; Steven W. Tompkins, Sheriff, Suffolk County, Massachusetts; Jeh Charles Johnson, United States Secretary of Homeland Security; Dorothy Herrera-Niles, Director, Immigration and Customs Enforcement, Boston Field Office; John T. Morton, Director of Immigration and Customs Enforcement; Eric H. Holder, Jr., Attorney General; Juan Osuna, Director of the Executive Office for Immigration Review; Executive Office for Immigration Review,
Respondents, Appellants/Cross-Appellees.
Nos. 14-1270, 14-1803, 14-1823 |
Entered: May 11, 2018
Attorneys and Law Firms
Muneer I. Ahmad, Miriam Hinman, Kendall Hoechst, Grace Kao, Lunar Mai, My Khanh Ngo, Elizabeth Song, Michael J. Wishnie, Mary Yanik, Yale Law School, New Haven, CT, Ahilan Arulanantham, American Civil Liberties Union of Southern California, Los Angeles, CA, Lauren J. Carasik, Western New England University School of Law, Springfield, MA, Rebecca Fabian Izzo, WilmerHale LLP, Anant Kumar Saraswat, Wolf
  
  
  

  

Greenfield & Sacks PC, Boston, MA, Michael King Thomas Tan, American Civil Liberties Union Foundation, New York, NY, for Appellee/Cross-Appellant.

Joyce R. Branda, Stuart F. Delery, US Dept. of Justice,

Yamileth G. Davila, Colin A. Kisor, William Charles

Peachey, Elianis N. Perez, J. Max Weintraub, US Dept. of

Justice Office of Immigration Litigation, Washington, DC,

Dina Michael Chaitowitz, US Attorney’s Office, Boston,

MA, Karen L. Goodwin, US Attorney’s Office,

Springfield,

MA,

for

Respondents,

Appellants/Cross-Appellees.

Before Howard, Chief Judge, Selya and Stahl, Circuit Judges.

JUDGMENT
*1 In light of the Supreme Court’s opinion in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), we withdraw our opinion of April 13, 2016 and vacate the judgment of the same date. The district court’s judgment is affirmed in part as to Mark Anthony Reid and vacated as to the class members, and the class action matter is remanded for reconsideration of the certification order.
All Citations
Not Reported in Fed. Rptr., 2018 WL 4000993
  
  

  

1  

  

 </s> Case 3:13-cv-30125-PBS Document 481 Filed 07/09/19 Page 1 of 48

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARK ANTHONY REID; ROBERT

)

WILLIAMS; and LEO FELIX CHARLES, )

on behalf of themselves and others )

similarly situated,

)

)

Plaintiffs/Petitioners, )

)

v.

)

)

CHRISTOPHER DONELAN, Sheriff,

)

Franklin County, et al.,

)

)

Defendants/Respondents. )

___________________________________)

Civil Action No. 13-30125-PBS

MEMORANDUM AND ORDER July 9, 2019
Saris, C.J. INTRODUCTION
In this class action, Plaintiffs challenge the constitutionality of mandatory detention of noncitizens with certain criminal convictions who have been detained for more than six months during removal proceedings without the opportunity for a bond hearing pursuant to 8 U.S.C. § 1226(c). Plaintiffs represent a class of “[a]ll individuals who are or will be detained within the Commonwealth of Massachusetts or the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond or

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reasonableness hearing.” Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *8 (D. Mass. Oct. 23, 2018). Both Plaintiffs and the Government have moved for summary judgment on whether mandatory detention of the class members under 8 U.S.C. § 1226(c) for over six months violates the Fifth Amendment Due Process Clause or the Eighth Amendment Excessive Bail Clause. After hearing, the Court ALLOWS IN PART and DENIES IN PART Plaintiffs’ motion for summary judgment (Docket No. 453) and ALLOWS IN PART and DENIES IN PART the Government’s motion for summary judgment (Docket No. 455).
In summary, the Court holds and declares as follows: First, as the Government agrees, mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) violates due process when an noncitizen’s individual circumstances render the detention unreasonably prolonged in relation to its purpose in ensuring the removal of deportable noncitizens with criminal records. Second, the determination of whether mandatory detention without a bond hearing has become unreasonably prolonged is a factspecific analysis. The most important factor in determining whether detention has become unreasonably prolonged is the length of the detention. The Court rejects Plaintiffs’ request that the Court impose a bright-line six-month rule on the ground that it is unsupported by the record and the caselaw. Third, in the unusual instances when mandatory, categorical detention
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lasts for more than one year during agency removal proceedings, excluding any dilatory tactics attributable to the noncitizen, the delay is likely to be unreasonable. This one-year period reflects the Government’s own regulations and policies, which aim to complete removal proceedings in no more than nine months, and statistics showing that most removal proceedings take less than one year. However, detention of under a year may be unreasonably prolonged if the matter just lingers on the immigration court or Board of Immigration Appeals (“BIA”) docket.
Fourth, a noncitizen subject to mandatory detention without a bond hearing under § 1226(c) must bring a habeas petition in federal court to challenge his detention as unreasonably prolonged. If the court agrees, the individual is entitled to a bond hearing before an immigration judge at which the Government bears the burden of proving that he is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence. If the Government demonstrates that the individual is dangerous or a risk of flight, for example if he has a serious criminal record, he is not entitled to release. Fifth, in making its release determination, the immigration court may not impose excessive bail, must evaluate the individual’s ability to pay in setting bond, and must consider alternative conditions of release such as GPS monitoring that
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reasonably assure the safety of the community and the individual’s future appearances.
PROCEDURAL HISTORY The Court assumes familiarity with the complex procedural posture of this case from its October 23, 2018 memorandum and order and only briefly summarizes the relevant background. See Reid, 2018 WL 5269992, at *1-3. On July 1, 2013, Plaintiff Mark Anthony Reid filed a petition for writ of habeas corpus and complaint for injunctive relief that raised statutory and constitutional claims challenging mandatory detention under § 1226(c). On January 9, 2014, the court (Ponsor, J.) granted Reid’s individual habeas petition. Reid v. Donelan, 991 F. Supp. 2d 275, 282 (D. Mass. 2014), aff’d, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11, 2018). Following its earlier decision in Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009), the court held that § 1226(c) “include[d] a ‘reasonableness’ limit on the length of time an individual can be detained without an individualized bond hearing” to avoid due process concerns with indefinite detention, Reid, 991 F. Supp. 2d at 279. The court evaluated two approaches to implementing this reasonableness requirement: an automatic bond hearing once mandatory detention exceeds six months (“six-month rule”) or a bond hearing only when mandatory detention has become unreasonable as analyzed on
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a case-by-case basis (“individualized reasonableness rule”). See id. at 279-82. The court determined that Reid was entitled to a bond hearing under either approach but suggested it would adopt the six-month rule. See id. at 279.
On February 10, 2014, the court (Ponsor, J.) certified the following class under Federal Rule of Civil Procedure 23(b)(2): “All individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing.” Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014). Three months later, the court (Ponsor, J.) awarded summary judgment and a permanent injunction to the class on the basis of its holding that § 1226(c) includes a requirement for a bond hearing after six months of mandatory detention. See Reid v. Donelan, 22 F. Supp. 3d 84, 88-89, 93-94 (D. Mass. 2014), vacated, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11, 2018). The court also held that due process did not require that the Government bear the burden of proof at the class members’ bond hearings, let alone by clear and convincing evidence. Id. at 92-93.
On appeal, the First Circuit agreed that “categorical, mandatory, and indeterminate detention raises severe constitutional concerns” and that the canon of constitutional avoidance necessitated reading a bond hearing requirement into
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§ 1226(c). Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016), withdrawn, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11, 2018). Disagreeing with the district court, however, the First Circuit held that Supreme Court precedent required it to adopt the individualized reasonableness rule. See id. at 495-98. It instructed district courts evaluating the reasonableness of § 1226(c) detention without a bond hearing to “examine the presumptions upon which [mandatory detention] was based (such as brevity and removability)” and consider “the total length of the detention; the foreseeability of proceedings concluding in the near future . . .; the period of the detention compared to the criminal sentence; the promptness (or delay) of the immigration authorities or the detainee; and the likelihood that the proceedings will culminate in a final removal order.” Id. at 500. Based on this holding, the First Circuit vacated the grant of summary judgment to Plaintiffs on the class claims. Id. at 501. Since its decision raised questions as to the continued propriety of class certification, the court declined to address Plaintiffs’ cross-appeal challenging the district court’s holding that due process does not require the Government to bear the burden of proof at a bond hearing. See id. The court noted, however, that Plaintiffs raised “a bevy of weighty constitutional arguments” concerning the procedural protections required at a bond hearing. Id.
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Two months later, the Supreme Court granted certiorari in Jennings v. Rodriguez, a class action in the Ninth Circuit also challenging mandatory detention under § 1226(c). See 136 S. Ct. 2489 (2016) (mem.). The First Circuit stayed this lawsuit pending resolution of Jennings. On February 27, 2018, the Supreme Court held that the explicit language in § 1226(c) requiring mandatory detention during removal proceedings barred courts from invoking the canon of constitutional avoidance to read an implicit requirement for bond hearings into the statute. Jennings v. Rodriguez, 138 S. Ct. 830, 846-47 (2018). Because the Ninth Circuit did not decide if such mandatory detention is constitutional, the Court declined to rule on that question. See id. at 851.
Shortly thereafter, the First Circuit withdrew its previous opinion in this case. See Reid, 2018 WL 4000993, at *1. In a summary decision, it affirmed the district court’s judgment for Reid individually, vacated the judgment for the class, and remanded the case for reconsideration of the certification order. Id. After the case was reassigned on remand, this Court determined that continued certification of the class was proper. See Reid, 2018 WL 5269992, at *8. While adoption of the individualized reasonableness rule would require an analysis of the circumstances of each class member’s detention, the class still raised the common question of “whether the Due Process
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Clause or Excessive Bail Clause requires that they at least have the chance to plead their case after six months at an individualized bond or reasonableness hearing.” Id. at *5. The Court declined to address whether 8 U.S.C. § 1252(f)(1) would bar a classwide permanent injunction because it could, at a minimum, issue a declaratory judgment establishing class members’ right to a bond or reasonableness hearing. Id. at *6. After an opportunity for discovery, both Plaintiffs and the Government now move for summary judgment.
STATISTICAL BACKGROUND ON § 1226(c) DETENTION The Court allowed for limited discovery concerning the average and median detention times for individuals subject to mandatory detention under 8 U.S.C. § 1226(c). The parties did not submit any deposition testimony but present dueling statistics about § 1226(c) detention. Plaintiffs state that the median length of detention for released or removed class members (whose detention has ended and who, per the class definition, were detained for at least 180 days) was 363.5 days, with 25% detained for fewer than 253 days and 25% detained for more than 561.5 days. Dkt. No. 460-1 ¶ 8. The two longest periods of detention were 1,541 and 1,291 days. Id. Non-class members detained under § 1226(c) (i.e., for less than 180 days) were held for a median of 98 days, with 25% detained for 60 days or fewer. Id. ¶ 11. Plaintiffs do not provide information on the
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average period of § 1226(c) detention overall. They do add, however, that 27% of class members detained under § 1226(c) before implementation of Judge Ponsor’s 2014 injunction obtained relief from removal or termination of their removal proceedings. Dkt. No. 387-5 ¶ 9.
The Government provided the Court with data on the duration of removal proceedings in the Boston and Hartford Immigration Courts for individuals detained under § 1226(c) over the past twenty years. Dkt. No. 415-1 at 9-14. The Government emphasizes that immigration court proceedings for only 3.8% of aliens lasted more than a year, but this figure does not account for the duration of an appeal to the BIA. From the Government’s charts, the Court has calculated that removal proceedings, including any appeal to the BIA, but not including any petition for review to the circuit court, lasted longer than one year for 5.8% of aliens detained under § 1226(c) over the past five years.1 See id. The median completion time for removal
1 I added together the “total cases not appealed” (second column of Charts 1 and 2) and the “total appeals” (second column of Charts 5 and 6). This figure (1302) is the total number of § 1226(c) removal cases over the past five years in the Boston and Hartford Immigration Courts. I then added together the number of cases that took more than twelve months at the immigration court level where there was no appeal (fourth column of Charts 1 and 2) and the number of cases that took more than twelve months in total where there was an appeal (fourth column of Charts 5 and 6). This figure (75) represents the number of § 1226(c) removal cases over the past five years that lasted longer than a year within the agency. 75 is 5.8% of 1302.
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proceedings at the immigration court level over the past five years was around 40 days in non-appealed cases and three months in cases that were ultimately appealed to the BIA. Id. ¶ 18. In 2018, the median pendency of an appeal to the BIA was around four months. Id. ¶ 24. Nearly 90% of non-appealed cases were completed within six months. Id. ¶ 18. Only 22% of § 1226(c) detainees were granted relief or had their removal proceedings terminated in 2018 in the Boston Immigration Court. Id. ¶ 20.
The parties agree that close to half of the class members that received a bond hearing pursuant to Judge Ponsor’s 2014 injunction were given an opportunity for release. Immigration judges set bond for 37 of the 104 class members (36%) and released 13 others under orders of supervision or recognizance (13%). See Dkt. No. 460-1 ¶¶ 14-15; Dkt. No. 467 ¶¶ 5-6.
The Government has also submitted the criminal histories of all of the members of the class. This information reveals that the class is comprised of immigrants with a wide range of criminal backgrounds. Some class members have only one conviction for a nonviolent offense. See, e.g., Dkt. No. 459-1 at 33 (gambling); id. (identity theft). A number have been convicted of drug offenses. See, e.g., id. at 21 (two convictions for drug possession); id. at 22 (one conviction for selling marijuana). Others have lengthy criminal histories with a number of convictions for violent crimes. See, e.g., id. at 10
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(multiple convictions for burglary and aggravated assault); id. at 23-24 (two convictions for assault and one for kidnapping).
Mark Reid, the original class representative, was convicted in 2002 and 2010 of drug trafficking and possession and conspiracy to commit burglary. U.S. Immigration and Customs Enforcement (“ICE”) detained him on November 13, 2012 and initiated removal proceedings. At the bond hearing Judge Ponsor ordered for him in January 2014, an immigration judge released him on bond. Reid’s removal proceedings are still ongoing, as the BIA has remanded his case back to the immigration judge three times. The immigration judge determined that Reid has not committed an aggravated felony, and Reid is currently challenging whether his convictions are crimes involving moral turpitude and is claiming eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. In March and April 2019, Reid was charged in two separate incidents with, inter alia, threatening, breach of the peace, and possession of cocaine.
Robert Williams, another class representative, pled guilty to drug possession and weapons charges. ICE served Williams with a Notice to Appear and took him into custody on December 6, 2017. An immigration judge ordered him removed and denied his application for cancellation of removal, and the BIA dismissed his appeal. He was removed on October 25, 2018 while his
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petition for review of the BIA order was pending at the Second Circuit.
Leo Felix Charles, the final class representative, was convicted of drug trafficking and first-degree assault. After completing his term of imprisonment, he was detained by ICE on February 2, 2018. An immigration judge terminated his deferral of removal under the Convention Against Torture, which he had received in 2003, and the BIA dismissed his appeal. Charles filed a petition for review of the BIA dismissal, and the Second Circuit stayed his removal on December 11, 2018 pending resolution of his petition. ICE released Charles from custody on February 14, 2019.
DISCUSSION I. Statutory Background
8 U.S.C. § 1226 governs the detention of aliens2 during removal proceedings. Jennings, 138 S. Ct. at 837. The Government may generally release an alien on bond or conditional parole pending a decision on his removability. 8 U.S.C. § 1226(a). However, 8 U.S.C. § 1226(c) “carves out a statutory category of aliens who may not be released.” Jennings, 138 S. Ct. at 837.
2 In light of the Supreme Court and First Circuit’s use of the terms “aliens” for noncitizens and “criminal aliens” for noncitizens with criminal convictions that serve as predicates for mandatory detention under § 1226(c), the Court uses these terms.
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Under § 1226(c), the Government “shall take into custody any alien” who is inadmissible or deportable based on a conviction for “certain crimes of moral turpitude, controlled substance offenses, aggravated felonies, firearm offenses, or acts associated with terrorism.” 8 U.S.C. § 1226(c)(1) (emphasis added); Gordon v. Lynch, 842 F.3d 66, 67 n.1 (1st Cir. 2016). The crimes that serve as predicates for mandatory detention under § 1226(c) vary widely from simple drug possession, 8 U.S.C. § 1227(a)(2)(B)(i), to violent crimes such as rape and murder, 8 U.S.C. § 1101(a)(43)(A).
A criminal alien is subject to mandatory detention whether or not he is taken into immigration custody as soon as he is released from criminal custody for his underlying offense. See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019).3 The Government may release such an alien only for witness protection purposes and only if the alien shows he is not a danger to the community or a risk of flight. 8 U.S.C. § 1226(c)(2). The statute does not provide a right to a bond hearing, but an alien who believes he does not have the requisite criminal conviction to qualify for mandatory detention may challenge his classification in Joseph
3 In Preap, the Supreme Court held that the language of § 1226(c) does not require that the Government take the alien into immigration custody immediately upon release from criminal custody to trigger mandatory detention. 139 S. Ct. at 965. The Court did not address whether this interpretation of § 1226(c) renders the statute unconstitutional. See id. at 972.
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hearings. Preap, 139 S. Ct. at 971 n.8 (citing Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999)).
Congress enacted § 1226(c) in the 1990s in response to the difficulty the Government faced in removing deportable criminal aliens. See Demore v. Kim, 538 U.S. 510, 521 (2003). Congress had evidence that the Government was unable to remove deportable criminal aliens in large part because of its “broad discretion” to release aliens on bond during removal proceedings and the “severe limitations on funding and detention space, which . . . affected its release determinations.” Id. at 519. Between onein-five and one-in-four aliens with criminal records released on bond failed to appear at their removal hearings. See id. at 51920. In enacting § 1226(c), Congress determined that “detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal.” Id. at 521.
The Supreme Court has decided two cases concerning § 1226(c) that are relevant to Plaintiffs’ constitutional claims. First, in Demore v. Kim, the Court rejected an alien’s facial due process challenge to mandatory detention under § 1226(c). 538 U.S. at 522-23, 530. The Court emphasized that “[d]etention during removal proceedings is a constitutionally permissible part of that process” and Congress may detain aliens based on statutory presumptions rather than relying on individualized dangerousness and flight risk determinations for
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each alien. Id. at 526, 531. As the Court explained, “when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” Id. at 528. Accordingly, mandatory detention under § 1226(c) was a permissible exercise of Congress’s immigration authority to ensure that aliens removable for serious criminal offenses would neither commit new crimes nor abscond before execution of their removal orders. See id. at 517-20, 528.
The Court relied on statistics showing that the vast majority of aliens subject to mandatory detention were detained for no more than five months and noted that the petitioner had been detained himself for only six months. Id. at 529-31. Unfortunately, these statistics turned out to be erroneous. See Jennings, 138 S. Ct at 869 (Breyer, J., dissenting) (explaining that the statistics the Court relied on in Demore were incorrect and that “[d]etention normally lasts twice as long as the Government then said it did”). The Court therefore emphasized that § 1226(c) detention was permissible for “the brief period necessary for . . . removal proceedings.” Demore, 538 U.S. at 513; see also id. at 531 (upholding the petitioner’s detention “for the limited period of his removal proceedings”). In a concurrence, Justice Kennedy, who provided the fifth vote for the majority, noted that due process might require “an
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individualized determination as to [an alien’s] risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J., concurring).
Second, as discussed above, the Court held in Jennings v. Rodriguez that § 1226(c) unambiguously “mandates detention of any alien falling within its scope” and permits detention to end “prior to the conclusion of removal proceedings only if the alien is released for witness-protection purposes.” 138 S. Ct. at 847 (internal quotation omitted). Because of the statute’s clarity, the Court reversed the Ninth Circuit’s use of the canon of constitutional avoidance to read an implicit requirement for an individualized bond hearing once an alien is detained pursuant to § 1226(c) for six months. See id. at 836, 839. The Court declined to address whether this interpretation of § 1226(c) violated due process. Id. at 851. II. Due Process Clause
In its brief and at the hearing, the Government concedes that mandatory detention under § 1226(c) without a bond hearing violates the Due Process Clause when it becomes unreasonably prolonged in relation to its purpose in ensuring the removal of deportable criminal aliens. This concession accords with the pre-Jennings decisions of the six circuit courts, including the First Circuit, that read a reasonableness limitation into § 1226(c) via the canon of constitutional avoidance. See Sopo v.
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U.S. Att’y Gen., 825 F.3d 1199, 1212-13 (11th Cir. 2016) (collecting cases), vacated, 890 F.3d 952 (11th Cir. 2018). While Demore upheld the constitutionality of mandatory detention under § 1226(c) for the brief period of time reasonably necessary to effectuate the removal of a deportable criminal alien, it did not address the lengthy period of detention at issue in this case, which Plaintiffs point out lasted over four years for one class member. Indeed, Justice Kennedy recognized in Demore that due process would require “an individualized determination as to [an alien’s] risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 538 U.S. at 532 (Kennedy, J., concurring). And Jennings rejected the use of the canon of constitutional avoidance to read a reasonableness limitation into § 1226(c) because of the statute’s unambiguous language, not because prolonged, categorical detention under § 1226(c) does not raise due process concerns. 138 S. Ct. at 836; see also id. at 851 (declining to address the underlying due process question).
This Court therefore holds that mandatory detention under § 1226(c) without a bond hearing violates due process when it becomes unreasonably prolonged in relation to its purpose in ensuring the removal of deportable criminal aliens. See Reid, 819 F.3d at 498-99.
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The more difficult question is how to determine when a criminal alien’s mandatory detention becomes unreasonably prolonged. Before Jennings, circuit courts developed two approaches. The Second and Ninth Circuits adopted a six-month rule requiring an automatic bond hearing for any alien detained under § 1226(c) for more than six months. See Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), vacated, 138 S. Ct. 1260 (2018); Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir. 2013), abrogated by Jennings, 138 S. Ct. 830 (2018). The First, Third, Sixth and Eleventh Circuits utilized an individualized reasonableness rule requiring a fact-specific analysis of whether an alien’s detention had become unreasonable. See Sopo, 825 F.3d at 1215; Reid, 819 F.3d at 498; Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011), abrogated by Jennings, 138 S. Ct. 830 (2018); Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003), abrogated by Jennings, 138 S. Ct. 830 (2018).
Plaintiffs urge the Court to adopt the six-month rule and grant each class member a bond hearing, while the Government advocates for the individualized reasonableness rule. In the event the Court adopts the individualized reasonableness rule, Plaintiffs ask the Court to order the Government to provide each class member a “reasonableness hearing” in immigration court at which the Government bears the burden of demonstrating that the alien’s continued mandatory detention without a bond hearing is
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reasonable. The Government contends that each class member must raise his fact-specific challenge to the reasonableness of his mandatory detention via an individual habeas petition in federal court. Finally, Plaintiffs argue that due process requires a number of procedural protections for criminal aliens who are granted bond hearings, namely that the Government bear the burden of proving dangerousness and/or risk of flight by clear and convincing evidence.
A. Six-Month Rule or Individualized Reasonableness Rule? As an initial matter, Demore implicitly forecloses adoption of the six-month rule. See Reid, 819 F.3d at 497. The alien in Demore spent six months in immigration detention before the district court granted his habeas petition. 538 U.S. at 530-31. Neither the majority opinion nor Justice Kennedy’s concurrence expressed any concern that his detention had become unreasonable by virtue of hitting the six-month mark, although the Court was not directly presented with this question. Plaintiffs point out that the statistics concerning the average length of § 1226(c) detention on which the Court relied were erroneous and that “[d]etention normally lasts twice as long as the Government then said it did,” Jennings, 138 S. Ct at 869 (Breyer, J., dissenting), but they do not explain why this fact renders the six-month rule required as a matter of due process. Plaintiffs assert that the median length of detention for released or
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removed class members (who, per the class definition, were detained for at least 180 days) was 363.5 days, while non-class members detained under § 1226(c) (i.e., for less than 180 days) were detained for a median of 98 days. Dkt. No. 460-1 ¶¶ 8, 11. These data do not show that six months is the outer limit of a reasonable period for the Government to complete removal proceedings.
The six-month rule is also inconsistent with the Supreme Court’s opinion in Jennings. The Supreme Court expressly rejected the six-month rule as a matter of statutory interpretation, noting that “nothing in [§ 1226(c)] imposes a 6month time limit on detention without the possibility of bail.” Jennings, 138 S. Ct. at 851. The Court also emphasized that “due process is flexible, . . . and it calls for such procedural protections as the particular situation demands.” Id. at 852 (quotation omitted). An alien’s mandatory detention without a bond hearing becomes unreasonably prolonged when it no longer reasonably serves to ensure the swift removal of a deportable criminal alien. This determination is inherently fact-specific. Cf. Barker v. Wingo, 407 U.S. 514, 521 (1972) (recognizing in the speedy trial context that courts “cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate”). Section 1226(c) detention does not necessarily stop reasonably serving its statutory purpose at six
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months. The six-month rule has practical advantages in avoiding inconsistent and burdensome individual determinations, but it does not account for the fact-specific nature of the due process inquiry. See Reid, 819 F.3d at 497-98.
Since the Supreme Court decided Jennings in 2018, the vast majority of district courts have adopted the individualized reasonableness rule as a matter of due process. See, e.g., Cabral v. Decker, 331 F. Supp. 3d 255, 260 (S.D.N.Y. 2018); Dryden v. Green, 321 F. Supp. 3d 496, 502 (D.N.J. 2018). The Court has identified only one decision that has utilized the six-month rule post-Jennings. See Rodriguez v. Nielsen, No. 18cv-04187-TSH, 2019 U.S. Dist. LEXIS 4228, at *18 (N.D. Cal. Jan. 7, 2019).
The six-month rule fails to account for actions taken by an alien that may extend his pre-removal detention. The Government reports that the median completion time of removal proceedings in cases appealed to the BIA in 2018 was just under nine months. See Dkt. No. 415-1 ¶ 24. As the Court explained in Demore, § 1226(c) detention does not violate due process simply by virtue of the length of time it takes for an alien to effectuate an appeal. See 538 U.S. at 530 n.14. A bright-line six-month rule would effectively grant a bond hearing to aliens who appealed to the BIA even where those proceedings were moving forward in a timely manner. See Reid, 819 F.3d at 500 n.4
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(recognizing that mandatory detention does not become unreasonable during the pendency of a promptly adjudicated appeal by the alien but explaining that “there may come a time when promptness lapses”). The six-month rule also does not account for dilatory tactics by the alien that extend removal proceedings. Plaintiffs argue that an immigration court could consider such tactics at a bond hearing, but the only relevant considerations in determining the suitability of bond are dangerousness and risk of flight. See In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006), abrogated on other grounds by Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018).
Zadvydas v. Davis, 533 U.S. 678 (2001), does not compel, or even support, the conclusion that due process requires an automatic bond hearing after six months of mandatory detention under § 1226(c). In Zadvydas, the Supreme Court addressed whether 8 U.S.C. § 1231(a)(6) authorized the Government to detain an alien subject to a final order of removal for more than the ninety-day statutory period to secure his removal. 533 U.S. at 682. Because “indefinite detention of [such] aliens . . . would raise serious constitutional concerns” if they were never removed, the Court read § 1231(a)(6) to “contain an implicit ‘reasonable time’ limitation.” Id. “[T]o guide lower court determinations,” the Court adopted six months after entry of the final order of removal as the “presumptively reasonable
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period of detention.” Id. at 701. After six months, “once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” Id.
The Zadvydas Court did not simply order release (or a bond hearing) for any alien detained under § 1231(a)(6) for six months after entry of a removal order. Instead, the Court required the Government to present evidence after six months of post-removal-order detention that removal was still reasonably foreseeable for the alien being detained, i.e., that detention still reasonably served the purpose of the statute. See id. Zadvydas therefore undermines the notion that the reasonableness of immigration detention can be determined by a bright-line rule without some individualized analysis of each alien’s circumstances.
Furthermore, the question at issue here, namely whether unreasonably prolonged, categorical detention during removal proceedings violates due process, presents different considerations than the issue in Zadvydas. See Demore, 538 U.S. at 527 (recognizing that the circumstances in Zadvydas were “materially different” from § 1226(c) detention). “[P]ostremoval-period detention, unlike detention pending a determination of removability . . . , has no obvious termination
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point.” Zadvydas, 533 U.S. at 697; see also Demore, 538 U.S. at 529 (explaining that § 1226(c) detention has “a definite termination point”). In Zadvydas, the Supreme Court adopted a bright-line presumption to give some metric to determine “how much longer towards eternity could be considered ‘reasonable.’” Reid, 819 F.3d at 496. Removal proceedings have a reasonably foreseeable endpoint.
Plaintiffs contend that mandatory detention becomes unreasonable after six months because an immigration court can continue to detain any alien found to be dangerous or a risk of flight at a bond hearing, which protects the Government’s interests in flight and danger prevention. Under this reasoning, mandatory detention under § 1226(c) would violate due process from the start, a conclusion the Supreme Court rejected in Demore. The Government need not “employ the least burdensome means to accomplish its goal” of ensuring the removal of deportable criminal aliens and may rely on “reasonable presumptions and generic rules” to determine whom to detain. Demore, 538 U.S. at 526, 528 (quotation omitted).
Plaintiffs challenge the congressional presumption that criminal aliens are likely to be dangerous or risks of flight, but they have presented no evidence on point. And Congress implemented § 1226(c) based on statistics showing that released
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criminal aliens were committing new offenses and absconding. See id. at 518-20.
Plaintiffs also point to the Sixth Amendment’s requirement of a jury trial for any crime punishable by a term of imprisonment of more than six months. See Baldwin v. New York, 399 U.S. 66, 69 (1970). The Supreme Court adopted this six-month rule based on “the existing laws and practices in the Nation” with regard to jury trials. Id. at 70 (quoting Duncan v. Louisiana, 391 U.S. 145, 161 (1968)). Plaintiffs provide no reason why this historically based six-month cutoff should apply to the materially different context of immigration detention, especially given Congress’s unique authority to legislate with regard to aliens. See Demore, 538 U.S. at 521. And while Zadvydas imposed a version of the six-month rule based on its historical understanding “that Congress previously doubted the constitutionality of detention for more than six months,” 533 U.S. at 701 (citing United States v. Witkovich, 353 U.S. 194 (1957)), the case it cited for this proposition also involved post-removal-order detention, see Witkovich, 353 U.S. at 194. Plaintiffs present no historical justification for the six-month rule in the context of detention pending removal proceedings.
For these reasons, the Court holds that mandatory detention under § 1226(c) without a bond hearing violates due process when an alien’s individual circumstances render the detention
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unreasonably prolonged in relation to its purpose in ensuring the removal of deportable criminal aliens. Because mandatory detention under § 1226(c) “is premised upon the alien’s presumed deportability and the government’s presumed ability to reach the removal decision within a brief period of time,” Reid, 819 F.3d at 499 (citing Demore, 538 U.S. at 531 (Kennedy, J., concurring)), the reasonableness of a criminal alien’s mandatory detention depends on the strength of these presumptions, id. at 500. “As the actualization of these presumptions grows weaker or more attenuated, the categorical nature of the detention will become increasingly unreasonable.” Id. The First Circuit held that the following nonexclusive factors are relevant in determining the reasonableness of continued mandatory detention:
the total length of the detention; the foreseeability of proceedings concluding in the near future (or the likely duration of future detention); the period of the detention compared to the criminal sentence; the promptness (or delay) of the immigration authorities or the detainee; and the likelihood that the proceedings will culminate in a final removal order. Id. The total length of the detention is the most important factor. See Sopo, 825 F.3d at 1217 (describing this factor as “critical”). To provide guidance in determining the reasonableness of prolonged mandatory detention under § 1226(c), the Court concludes, based on the record and the Government’s own policies, that such detention is likely to be unreasonable
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if it lasts for more than one year during removal proceedings before the agency, excluding any delays due to the alien’s dilatory tactics.4 See id. (“[A] criminal alien’s detention without a bond hearing may often become unreasonable by the oneyear mark . . . .”); Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 476-78 (3d Cir. 2015) (recognizing that mandatory detention under § 1226(c) becomes unjustified around the oneyear mark unless the alien engages in delay tactics), abrogated by Jennings, 138 S. Ct. 830 (2018). The Executive Office for Immigration Review (“EOIR”) has set a goal that immigration courts complete 85% of removal cases involving detained aliens within sixty days of the filing of a Notice to Appear, James R. McHenry III, Director of EOIR, Memorandum on Case Priorities and Immigration Court Performance Measures 3 (2018), https://www.justice.gov/eoir/page/file/1026721/download, and an agency regulation requires the Board of Immigration Appeals (“BIA”) to adjudicate appeals from the immigration court within six months absent “exigent circumstances,” 8 C.F.R. § 1003.1(e)(8)(i). It is reasonable to expect EOIR to complete removal proceedings within one year for most aliens. In fact, the Government’s data show that, over the past five years, the
4 The parties do not specifically address how the period of time while a petition for review with a circuit court is pending should factor into the reasonableness analysis. The Court therefore does not take a position on this issue.
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agency completed removal proceedings for all but 5.8% of aliens
detained under § 1226(c) within a year.5
This one-year period is not a bright line. Periods of
detention directly attributable to an alien’s dilatory tactics
should not count in determining whether detention has exceeded
the one-year mark. The Court also does not exclude the
possibility that an alien’s individual circumstances would
render mandatory detention of less than one year unreasonable if
the Government unreasonably delays or the case languishes on a
docket. The one-year period simply recognizes that, based on
EOIR’s own goals and statistics, the agency should reasonably be
able to complete removal proceedings for most aliens within one
year.
5 Despite a six-month opportunity for discovery about the length of § 1226(c) detention, the data the parties provide is far from helpful. Plaintiffs present separate statistics for class members and non-class members but do not aggregate data for all § 1226(c) detainees. The Government provides statistics on the length of immigration court proceedings and BIA appeals separately and fails to explain how to aggregate the two periods to determine the median and average length of the entire agency proceeding. The data both Plaintiffs and the Government present, however, do make clear that removal proceedings that last longer than one year at the agency level are outliers. See Dkt. No. 460-1 ¶ 8 (explaining Plaintiffs’ calculation that the median length of detention for released or removed class members (whose detention has ended and who, per the class definition, were detained for at least 180 days) was 363.5 days); Dkt. No. 467 ¶ 8 (noting the Government’s calculation that removal proceedings for only 3.8% of § 1226(c) detainees took more than one year in 2013 and 2014 at the immigration court level in Boston and Hartford Immigration Courts).
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The Court’s refusal to import the six-month rule from Zadvydas into the context of mandatory detention under § 1226(c) does not prevent the adoption of a presumption that mandatory detention exceeding one year is unreasonable. As noted above, the six-month rule in Zadvydas provided a metric to determine how long toward an unforeseeable endpoint (the possible execution of a final removal order) could be considered reasonable. See Reid, 819 F.3d at 496. Under Zadvydas, an alien subject to a final order of removal cannot challenge his detention until the six-month period has elapsed. See 533 U.S. at 701. By contrast, an alien subject to mandatory detention under § 1226(c) may bring an individual habeas petition at any point. The one-year presumption simply acknowledges that, given EOIR’s own goals and statistics, detention for longer than a year is likely to be unreasonably prolonged.
Once an alien’s mandatory detention has become unreasonably prolonged in violation of due process, he is entitled to a bond hearing before an immigration judge, not immediate release. At the bond hearing, an immigration judge will assess the alien’s dangerousness and risk of flight. The Court recognizes the Government’s concern about the extensive criminal records of many members of the class and emphasizes that an immigration judge is under no obligation to release a criminal alien deemed to be dangerous or a risk of flight under the burden and
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standard of proof described below. Indeed, when Judge Ponsor’s 2014 injunction was in effect, more than half of the class members were denied bond. Aliens convicted of certain relatively minor, nonviolent offenses (like simple drug possession or gambling), however, are subject to mandatory detention under § 1226(c), and just under half of the class members granted bond hearings were released on supervision or offered bond. Already tasked with holding bond hearings for aliens detained under § 1226(a), immigration judges are capable of determining which criminal aliens are dangerous or risks of flight.
B. Reasonableness Hearings or Individual Habeas Petitions?
As an alternative to the six-month rule, Plaintiffs argue that due process requires a “reasonableness hearing” before the immigration court for any criminal alien detained under § 1226(c) for more than six months at which the Government must bear the burden of showing that the alien’s continued categorical detention remains reasonable. If the immigration court determines that mandatory detention has become unreasonable, Plaintiffs submit, it must hold a bond hearing. Plaintiffs’ suggestion for reasonableness hearings before the immigration court is derived from a footnote in the First Circuit’s withdrawn opinion in this case. See Reid, 819 F.3d at 502 n.5 (“[W]e have no occasion to consider here whether another
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petitioner might be able to challenge the individualized reasonableness of his continued categorical detention before the immigration courts rather than the federal courts.”). The Government responds that the proper mechanism for a criminal alien to challenge his mandatory detention as unreasonable is via an individual habeas petition in federal court. I agree.
The Government argues that providing every alien detained under § 1226(c) for six months with a reasonableness hearing would overwhelm the already overburdened immigration courts. Moreover, the Government raises a more fundamental concern: the immigration court’s lack of jurisdiction to adjudicate the constitutional question of when mandatory detention under § 1226(c) becomes unreasonable. Administrative agencies generally do not adjudicate questions concerning the constitutionality of congressional statutes. See Johnson v. Robison, 415 U.S. 361, 368 (1974). Accordingly, “it is settled that the immigration judge and [the BIA] lack jurisdiction to rule upon the constitutionality of the” Immigration and Nationality Act (“INA”). Matter of C-, 20 I. & N. Dec. 529, 532 (BIA 1992); see also Hinds v. Lynch, 790 F.3d 259, 263 n.4 (1st Cir. 2015) (“The BIA is without jurisdiction to adjudicate purely constitutional issues . . . .” (quotation omitted)). Determining that a criminal alien’s mandatory detention has become unreasonable under the Due Process Clause is the
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equivalent of holding that § 1226(c) is unconstitutional as applied to that alien, a constitutional judgment about a federal statute that immigration courts and the BIA cannot adjudicate. While requiring federal courts to adjudicate individual habeas petitions does impose a burden on the judiciary, “federal courts have the institutional competence to make fact-specific determinations, and they have great experience applying reasonableness standards.” Sopo, 825 F.3d at 1217.
The Court’s holding that the proper mechanism for a criminal alien to challenge his mandatory detention without a bond hearing is via an individual habeas petition does not mean that the Government has no responsibility to ensure that criminal aliens are not subject to unreasonably prolonged mandatory detention. Indeed, the Department of Justice issued regulations establishing a review process for aliens detained under 8 U.S.C. § 1231(a)(6) after Zadvydas. See 8 C.F.R. §§ 241.4, 241.13-14; see also Bonitto v. Bureau of Immigration & Customs Enf’t, 547 F. Supp. 2d 747, 752-53 (S.D. Tex. 2008) (explaining the “Post Order Custody Review” procedures and process for an alien detained under § 1231(a)(6) to request release).
While the Court urges ICE to establish similar procedures for ensuring criminal aliens are not subject to unreasonably prolonged mandatory detention without a bond hearing, the
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Government has explained that no such administrative procedures currently exist. An individual criminal alien must therefore bring an individual habeas petition if he believes his detention has become unreasonably prolonged.
C. Procedural Protections at Bond Hearings For a criminal alien whose mandatory detention has become unreasonable, thus entitling him to a bond hearing before the immigration court, Plaintiffs argue that due process requires that the Government prove the alien’s dangerousness or risk of flight by clear and convincing evidence. The Government claims Plaintiffs are barred from raising this argument by the doctrines of collateral estoppel and the law of the case because the court (Ponsor, J.) held in its 2014 judgment for the class in this case that the alien should bear the burden of proof. See Reid, 22 F. Supp. 3d at 92-93. However, “it is hornbook law that ‘[a] vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case.’” Jackson v. Coalter, 337 F.3d 74, 85 (1st Cir. 2003) (alteration in original) (quoting No E.-W. Highway Comm., Inc. v. Chandler, 767 F.2d 21, 24 (1st Cir. 1985)). The First Circuit vacated the 2014 judgment for the class, Reid, 2018 WL 4000993, at *1, so Plaintiffs may relitigate the burden of proof issue.
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1. Burden of Proof In Pensamiento v. McDonald, this Court held that due process requires that the Government bear the burden of proof at bond hearings for non-criminal aliens detained under § 1226(a). 315 F. Supp. 3d 684, 692 (D. Mass. 2018), appeal dismissed, No. 18-1691 (1st Cir. Dec. 26, 2018). Plaintiffs ask the Court to extend this holding to bond hearings provided to criminal aliens detained under § 1226(c) when mandatory detention becomes unreasonable. Many courts have done so, both before Jennings as a matter of statutory interpretation, see, e.g., Lora, 804 F.3d at 616; Diop, 656 F.3d at 235, and after Jennings as a matter of due process, see, e.g., De Oliveira Viegas v. Green, 370 F. Supp. 3d 443, 449 (D.N.J. 2019); Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 239-40 (W.D.N.Y. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018). The Court agrees that the status of § 1226(c) detainees as criminal aliens does not alter the conclusion that due process requires that the burden of proof fall on the Government at their bond hearings. Section § 1226(c) embodies a reasonable presumption within Congress’s authority that removable criminal aliens are more likely than other removable aliens to be risks of flight or dangerous. See Demore, 538 U.S. at 526. As the Government concedes, though, once a criminal alien’s detention becomes unreasonably prolonged in violation of due process, this
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presumption no longer mandates categorical detention. The alien
is then held pursuant to the Government’s discretionary
authority to detain during removal proceedings under § 1226(a).6
And when “the sole procedural protections available to the alien
are found in administrative proceedings” in which the alien
bears the burden of proof without significant judicial review,
prolonged detention violates due process. Zadvydas, 533 U.S. at
692; see also Foucha v. Louisiana, 504 U.S. 71, 81-82 (1992)
(finding unconstitutional a state statute placing the burden of
proof to justify release on an individual civilly committed
after being found not guilty by reason of insanity).
The Government points to language in both Jennings and
Preap that it claims requires that the alien bear the burden of
proof. See Preap, 139 S. Ct. at 959-60 (explaining that agency
precedent places the burden of proof on the alien at a § 1226(a)
6 Congress has enacted a rebuttable presumption that criminal defendants facing certain serious charges or with certain prior convictions are subject to pretrial detention. See United States v. O’Brien, 895 F.2d 810, 814-15 (1st Cir. 1990) (citing 18 U.S.C. § 3142(e)). A defendant bears the initial burden of production to introduce some evidence that there are conditions that will reasonably assure his appearance. Id. at 815. If he satisfies this burden, the court may still consider the congressional presumption in favor of detention in deciding whether the Government has met its ultimate burden to justify detention. Id. The parties do not address the analogous question of what weight an immigration court should give to the congressional presumption codified in § 1226(c) at a bond hearing for a criminal alien whose mandatory detention becomes unreasonably prolonged in violation of due process.
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bond hearing); Jennings, 138 S. Ct. at 847-48 (rejecting the
Ninth Circuit’s allocation of the burden of proof to the
Government as a matter of statutory interpretation because
“[n]othing in § 1226(a)’s text . . . even remotely supports the
imposition of” this requirement). Both decisions addressed
questions of statutory interpretation involving § 1226(c), and
neither addressed whether due process requires the Government to
bear the burden of proof. These decisions simply reflect how
agency precedent currently allocates the burden of proof.7
Neither Jennings nor Preap throws this Court’s due process
holding in Pensamiento into doubt. See Portillo, 322 F. Supp. 3d
at 709 n.9 (rejecting the argument that Jennings “ma[de] clear
that the burden must remain with the alien” because the Court
“focused on the protections required by the statute and did not
reach the constitutional question”); Cortez v. Sessions, 318 F.
Supp. 3d 1134, 1146-47 (N.D. Cal. 2018) (declining to find that
7 Section 1226 does not place the burden of proof on the immigrant and is silent on the subject of the allocation of the burden and the standard of proof to be applied. Before 1999, the BIA placed the burden of proof at a bond hearing on the Government to show that the alien was dangerous or a risk of flight. See Matter of Patel, 15 I. & N. Dec. 666, 666 (BIA 1999). In 1999, after the enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigration Responsibility Act, the BIA flipped the burden and held that an alien detained under § 1226(a) bore the burden of proof at a bond hearing. See In re Adeniji, 22 I. & N. Dec. 1102, 1113 (BIA 1999); see also Mary Holper, The Beast of Burden in Immigration Bond Hearings, 67 Case Western Res. L. Rev. 75, 90-95 (2016) (explaining this shift).
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Jennings reversed the Ninth Circuit’s earlier determination in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), as to the burden and standard of proof at a bond hearing); see also GuerreroSanchez v. Warden York Cty. Prison, 905 F.3d 208, 224 n.12 (3d Cir. 2018) (placing the burden of proof on the Government at a bond hearing for an alien detained under 8 U.S.C. § 1231(a)(6) post-Jennings).
Nor does Zadvydas suggest that a criminal alien should bear the burden of proof at a bond hearing. The Supreme Court did place the initial burden on a detained alien subject to a final removal order to show that there is “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future” to justify release from detention. Zadvydas, 533 U.S. at 701. But the ultimate burden falls on the Government to provide “evidence sufficient to rebut that showing.” Id. While Zadvydas did not address the burden of proof at a bond hearing, it is consistent with placing the burden of proof on the Government at a criminal alien’s bond hearing after the alien demonstrates that his detention has become unreasonably prolonged. See Pensamiento, 315 F. Supp. 3d at 692.
Finally, the Government points out that § 1226(c)(2), which permits the release of a criminal alien for witness protection purposes, places the burden on the alien to prove that he is not dangerous or a risk of flight. See 8 U.S.C. § 1226(c)(2). But
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§ 1226(c)(2) codifies an exception to a reasonable and constitutional period of mandatory detention.8 The provision is not relevant in determining the constitutionally required burden of proof in the far different context of mandatory detention that has become unreasonably prolonged under the Due Process Clause.
2. Standard of Proof Plaintiffs argue that due process requires that the Government justify continued detention of a criminal alien at a bond hearing with clear and convincing evidence of his dangerousness and/or risk of flight. They point to a slew of circuit and district court cases imposing a clear and convincing standard of proof on the Government both before and after Jennings and for bond hearings for aliens held under a range of immigration detention statutes. See, e.g., Guerrero-Sanchez, 905 F.3d at 224 n.12; Lora, 804 F.3d at 616; Rodriguez, 715 F.3d at 1135; Calderon-Rodriguez v. Wilcox, 374 F. Supp. 3d 1024, 1032 n.8 (W.D. Wash. 2019); Darko v. Sessions, 342 F. Supp. 3d 429, 435-36 (S.D.N.Y. 2018). In Pensamiento, this Court declined to adopt the clear and convincing standard but did not rule out the possibility that it is required by due process. See 315 F. Supp. 3d at 693.
8 The Court expresses no opinion on whether the allocation of the burden of proof in § 1226(c)(2) is constitutional.
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The Court holds that due process requires the Government to prove an alien’s dangerousness by clear and convincing evidence at a bond hearing. The Supreme Court has “upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections.” Zadvydas, 533 U.S. at 691-92. As such, civil commitment of a mentally ill individual requires proof by clear and convincing evidence of his dangerousness to himself or others. See Foucha, 504 U.S. at 80; Addington v. Texas, 441 U.S. 418, 431-32 (1979). The fact that immigration detention aims to ensure the removal of deportable aliens does not justify a lower standard of proof for dangerousness because “civil commitment for any purpose constitutes a significant deprivation of liberty” that requires due process protection. Singh, 638 F.3d at 1204 (emphasis in original) (quoting Addington, 441 U.S. at 425). While due process does not necessarily entitle aliens to the same rights as citizens, see Demore, 538 U.S. at 522, the Supreme Court in Zadvydas indicated that the requirement for strong procedural protections before an individual is detained for dangerousness applies to citizens and aliens alike, see 533 U.S. at 690-92.
But the Court is not persuaded that due process requires that the Government prove an alien’s risk of flight by more than a preponderance of the evidence. Although the Supreme Court has
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imposed a clear and convincing standard in a number of civil contexts, see, e.g., Addington, 441 U.S. at 431-32 (civil commitment for the mentally ill); Woodby v. INS, 385 U.S. 276, 286 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization), none of these contexts involves considerations of risk of flight. The most comparable context is criminal pretrial detention, and under the Bail Reform Act of 1984, which the Supreme Court upheld in United States v. Salerno, 481 U.S. 739, 755 (1987), the Government must only prove a defendant’s risk of flight by a preponderance of the evidence to justify his detention, see United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991). An alien in removal proceedings is not entitled to more procedural protections under the Due Process Clause than a pretrial criminal detainee. Cf. Demore, 538 U.S. at 522 (“Congress may make rules as to aliens that would be unacceptable if applied to citizens.”). Given the reasonable concern about risk of flight that prompted Congress to enact § 1226(c), see id. at 517-21, due process requires only that the Government prove an alien’s risk of flight by a preponderance of the evidence to justify his detention at a bond hearing.
3. Alternatives to Detention and Ability to Pay Finally, due process requires that an immigration court consider both an alien’s ability to pay in setting the amount of
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bond and alternative conditions of release such as GPS monitoring that reasonably assure the safety of the community and the criminal alien’s future appearances.9 See Hernandez v. Sessions, 872 F.3d 976, 1000 (9th Cir. 2017) (requiring consideration of these factors for non-criminal aliens detained under 8 U.S.C. § 1226(a)); Abdi v. Nielsen, 287 F. Supp. 3d 327, 338 (W.D.N.Y. 2018) (same for arriving aliens detained under 8 U.S.C. § 1225(b)). This requirement guarantees that the decision to continue to detain a criminal alien is reasonably related to the Government’s interest in protecting the public and assuring appearances at future proceedings. See Hernandez, 872 F.3d at 990. The Government contends that immigration judges do not have the authority to consider alternative conditions of release, but the BIA has concluded otherwise. See Matter of Garcia-Garcia, 25 I. & N. Dec. 93, 98 (BIA 2009) (citing 8 U.S.C. § 1226(a)(2)(A) and 8 C.F.R. § 1236.1(d)(1)). III. Excessive Bail Clause
Plaintiffs also argue that mandatory detention under § 1226(c) violates the Excessive Bail Clause of the Eighth Amendment. See U.S. Const. amend. VIII (“Excessive bail shall not be required . . . .”). The Excessive Bail Clause applies to
9 8 U.S.C. § 1226(a) authorizes an immigration court to release an alien on “bond of at least $1,500” or “conditional parole.” 8 U.S.C. § 1226(a)(2). Plaintiffs do not challenge the statutory minimum bond amount.
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civil immigration proceedings. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 n.3 (1989) (stating that the Excessive Bail Clause is implicated by any “direct government restraint on personal liberty, be it in a criminal case or in a civil deportation proceeding”); Carlson v. Landon, 342 U.S. 524, 544-46 (1952) (assuming that the Excessive Bail Clause applied to deportation detention and ruling on the merits of detained aliens’ excessive bail claims). It prohibits excessive bail in those cases where bail is granted. See Salerno, 481 U.S. at 752; Carlson, 342 U.S. at 545. Thus, if a criminal alien’s mandatory detention becomes unreasonably prolonged and an immigration court holds a bond hearing, the Eighth Amendment prohibits setting bond in an amount greater than necessary to secure the alien’s future appearances. See Salerno, 481 U.S. at 754.
Nonetheless, the Excessive Bail Clause does not guarantee bail in all cases. See id. at 752; Carlson, 342 U.S. at 545; see also Bolante v. Keisler, 506 F.3d 618, 619 (7th Cir. 2007) (“[T]he Court has never held that persons detained in civil proceedings, such as deportation . . . proceedings, are entitled to release on bail.”). Congress may “defin[e] the classes of cases in which bail shall be allowed.” Carlson, 342 U.S. at 545. Accordingly, mandatory detention for certain criminal aliens under § 1226(c) does not violate the Excessive Bail Clause.
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See Marogi v. Jenifer, 126 F. Supp. 2d 1056, 1061-62 (E.D. Mich. 2000); Avramenkov v. INS, 99 F. Supp. 2d 210, 218 (D. Conn. 2000). The Due Process Clause, not the Excessive Bail Clause, imposes limits on Congress’s ability to detain aliens without an individualized hearing as part of the removal process. See Zadvydas, 533 U.S. at 690-96 (explaining the due process concerns raised by potentially indefinite detention of an alien subject to a final order of removal); cf. Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 792 n.16 (9th Cir. 2014) (explaining that “bail-denial schemes” in the criminal context are properly evaluated under the Due Process Clause, not the Excessive Bail Clause). IV. Remedy
Plaintiffs ask the Court to issue a classwide injunction ordering the Government to provide all class members, who by definition have been detained at least six months, with either a bond hearing or a reasonableness hearing. Having concluded that due process requires a federal court to determine via an individual habeas petition that a criminal alien’s mandatory detention under § 1226(c) has become unreasonable based on his particular circumstances before he is entitled to a bond hearing, the Court declines to issue either injunction Plaintiffs request. While certain class members whose mandatory detention has become unreasonable would be entitled to
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injunctions ordering the Government to provide them with a bond hearing, Federal Rule of Civil Procedure 23(b)(2), under which the class is certified, does not allow for individualized injunctions. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.”). The Court therefore need not address whether 8 U.S.C. § 1252(f)(1) prohibits a classwide permanent injunction ordering the Government to provide bond hearings for each class member.
The Government argues that § 1252(f)(1) deprives the Court of jurisdiction to issue even a classwide declaratory judgment concerning the rights of class members to a bond hearing. The Court already rejected this argument in the October 23, 2018 memorandum and order. See Reid, 2018 WL 5269992, at *6-7. Three justices in Preap subsequently stated that a district court has jurisdiction to entertain a request for declaratory relief despite § 1252(f)(1), 139 S. Ct. at 962 (opinion of Alito, J.), adding their voices to the three other justices who said the same in dissent in Jennings, 138 S. Ct. at 875 (Breyer, J., dissenting). Section 1252(f)(1) does not bar declaratory relief.
Finally, the Court may issue a classwide permanent injunction ordering the Government to follow the procedural rules mandated by due process at a bond hearing. These rules
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apply to any class member who is granted a bond hearing without regard to his individual circumstances. Section 1252(f)(1), which strips courts of jurisdiction “to enjoin or restrain the operation of” certain provisions of the INA on a classwide basis, 8 U.S.C. § 1252(f)(1), does not bar this injunction because the INA is silent on the procedural rules for bond hearings, see Pensamiento, 315 F. Supp. 3d at 689. This injunction abrogates agency precedent imposing the burden of proof on the alien at a bond hearing, but it in no way enjoins or restrains the operation of the detention statute.
A court may issue a permanent injunction if “(1) plaintiffs prevail on the merits; (2) plaintiffs would suffer irreparable injury in the absence of injunctive relief; (3) the harm to plaintiffs would outweigh the harm the defendant would suffer from the imposition of an injunction; and (4) the public interest would not be adversely affected by an injunction.” Healey v. Spencer, 765 F.3d 65, 74 (1st Cir. 2014) (quotation omitted). As discussed above, due process requires certain procedural protections at bond hearings. In the absence of an injunction, class members risk irreparable harm from the loss of their liberty. See Ferrara v. United States, 370 F. Supp. 2d 351, 360 (D. Mass. 2005) (“Obviously, the loss of liberty is a . . . severe form of irreparable injury.”). Since this injunction does not require bond hearings for each class member,
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Case 3:13-cv-30125-PBS Document 481 Filed 07/09/19 Page 46 of 48 it imposes minimal burden on the Government. Finally, the public interest supports requiring the Government to obey the Constitution in its administration of immigration detention. See Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“[P]ublic interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution.”). In opposing an injunction, the Government again emphasizes its concerns about criminal aliens’ dangerousness and flight risk, but the procedural protections mandated by due process simply ensure that the Government detains only aliens who are in fact dangerous or flight risks. Plaintiffs have therefore met the four prerequisites for a permanent injunction ordering certain procedural protections at their bond hearings.
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ORDER For the foregoing reasons, Plaintiffs’ motion for summary judgment is ALLOWED IN PART and DENIED IN PART (Docket No. 453), and the Government’s motion for summary judgment is ALLOWED IN PART and DENIED IN PART (Docket No. 455). The Court denies Plaintiffs’ request for a permanent injunction ordering the Government to provide class members with bond or reasonableness hearings. The Court also denies Plaintiffs’ request for a declaratory judgment insofar as they seek a declaration that due process requires an automatic bond hearing or reasonableness hearing for all criminal aliens detained under § 1226(c) for more than six months.
DECLARATORY JUDGMENT The Court declares that mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) violates due process when the detention becomes unreasonably prolonged in relation to its purpose in ensuring the removal of deportable criminal aliens. The most important factor in determining the reasonableness of a criminal alien’s mandatory detention is the length of the detention. Mandatory detention without a bond hearing is likely to be unreasonable if it lasts for more than one year, excluding any delays due to the alien’s dilatory tactics. A criminal alien subject to mandatory detention without a bond hearing under § 1226(c) must bring a habeas petition in federal court to
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challenge his detention as unreasonably prolonged. If the court agrees, the alien is entitled to a bond hearing before an immigration judge.
PERMANENT INJUNCTION For any bond hearing held for a class member, the Court orders that the immigration court require the Government to prove that the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence. The immigration court may not impose excessive bail, must evaluate the alien’s ability to pay in setting bond, and must consider alternative conditions of release such as GPS monitoring that reasonably assure the safety of the community and the alien’s future appearances. The Court orders that this declaratory judgment and permanent injunction be provided to all members of the class within thirty days and shall be provided to any new members of the class when their § 1226(c) detention exceeds six months. SO ORDERED.
/s/ PATTI B. SARIS Hon. Patti B. Saris Chief United States District Judge
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 </s> Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 1 of 55
ADVISE,APPEAL,HABEAS
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:13−cv−30125−PBS

Reid v. Donelan et al Assigned to: Chief Judge Patti B. Saris related Cases: 1:20−cv−10414−PBS
3:13−cv−30146−PBS 1:19−cv−10417−PBS 3:14−cv−30184−MAP 1:19−cv−12476−PBS 1:20−cv−10525−PBS Case in other court: USCA, 14−01270
USCA, 14−01803 USCA, 14−01823 USCA, 15−01172 Supreme Court of the United States, 17−00923 USCA − First Circuit, 19−01787 USCA − First Circuit, 19−01900 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa Petitioner

Date Filed: 07/01/2013 Date Terminated: 07/09/2019 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Mark Anthony Reid

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Mary Yanik Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432−4992 TERMINATED: 10/03/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle K. Nyein Wolf, Greenfield & Sacks, PC 600 Atlantic Avenue Boston, MA 02210 617−646−8000 Email: mnyein@wolfgreenfield.com ATTORNEY TO BE NOTICED
Miriam Hinman Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432−4992 TERMINATED: 10/03/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Fabian Izzo Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street

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Boston, MA 02109 617−526−6000 Email: rebecca.izzo@wilmerhale.com TERMINATED: 07/30/2015 ATTORNEY TO BE NOTICED

Ruth Swift Yale Law School 127 Wall Street New Haven, CT 06511 (203) 432−4992 TERMINATED: 08/01/2016 PRO HAC VICE ATTORNEY TO BE NOTICED

Sameer Ahmed Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6693 Email: sameer.ahmed@wilmerhale.com TERMINATED: 09/05/2014 ATTORNEY TO BE NOTICED

Petitioner
Robert Williams on behalf of themselves and others similarly situated

represented by Reena Parikh (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J. Wishnie (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Leo Felix Charles on behalf of themselves and others similarly situated

represented by Reena Parikh (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J. Wishnie (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Christopher Donelan Sheriff, Franklin County, Mass.

represented by Elianis N. Perez U.S. Department of Justice, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−616−9124 Email: elianis.perez@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Goodwin United States Attorney's Office

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300 State Street Suite 230 Springfield, MA 01105 413−785−0269 Fax: 413−785−0394 Email: karen.goodwin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Regan Hildebrand United States Department of Justice Liberty Square 450 Fifth Street NW Washington, DC 20001 202−305−3797 Email: regan.hildebrand@usdoj.gov TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno U.S. Department of Justice P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−353−8557 Email: catherine.m.reno@usdoj.gov ATTORNEY TO BE NOTICED
Colin Abbott Kisor U.S. Department of Justice Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 202−532−4331 Fax: 202−305−7000 Email: colin.kisor@usdoj.gov ATTORNEY TO BE NOTICED
Huy Le United States Department of Justice P.O. Box 868, Ben Franklin Station Washignton, DC 20044 (202) 353−4028 Email: Huy.M.Le2@usdoj.gov ATTORNEY TO BE NOTICED
J. Max Weintraub U.S. Department of Justice, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−305−7551 Email: jacob.weintraub@usdoj.gov ATTORNEY TO BE NOTICED
Janette L. Allen U.S. Department of Justice, Civil Division Benjamin Franklin Station P.O. Box 868 Washington, DC 20044 (202) 532−4095 Email: janette.allen@usdoj.gov ATTORNEY TO BE NOTICED

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Lauren E. Fascett U.S. Department of Justice, Civil Division Office of Immigration Litigation, District Court Section 450 5th Street, NW Washington, DC 20001 (202) 616−3466 Email: Lauren.Fascett@usdoj.gov ATTORNEY TO BE NOTICED

Yamileth G. Davila U.S. Department of of Justice Civil Division, Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 (202) 305−0137 Email: yamileth.g.davila@usdoj.gov ATTORNEY TO BE NOTICED

Respondent
David A Lanoie Superintendent, Franklin County Jail & House of Correction

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

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Respondent Thomas Hodgson Sheriff, Bristol County, Mass.
Respondent Joseph McDonald Sheriff, Plymouth County, Mass.

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED
Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED
Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno

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(See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
Steven Tompkins Sheriff, Suffolk County, Mass.

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

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Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
Janet Napolitano Secretary of the Department of Homeland Security

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
Dorothy Herrera−Niles Director, Immigration and Customs Enforcement Boston Field Office

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
John Morton Director of Immigration and Customs Enforcement

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen

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(See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
Eric Holder Attorney General of the United States

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
Juan Osuna Director of the Executive Office for Immigration Review

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent
Executive Office for Immigration Review

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Regan Hildebrand (See above for address) TERMINATED: 06/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Colin Abbott Kisor (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address)

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ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Janette L. Allen (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Respondent Rebecca J Adducci

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Respondent David Dubois

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED

Respondent Christopher Brackett

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

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Respondent Thomas D. Homan
Respondent Ms. Lori Streeter
Respondent Mr. James McHenry
Respondent Kirstjen M. Nielsen

Huy Le (See above for address) ATTORNEY TO BE NOTICED
Lauren E. Fascett (See above for address) ATTORNEY TO BE NOTICED
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED
Huy Le

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(See above for address) ATTORNEY TO BE NOTICED

Respondent Jefferson B Sessions, III

represented by Elianis N. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine M. Reno (See above for address) ATTORNEY TO BE NOTICED

Huy Le (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pro Se Party John A. Hawkinson

represented by John A. Hawkinson P.O. Box 397103 Cambridge, MA 02139−7103 617−797−0250 Email: jhawk@alum.mit.edu PRO SE

Date Filed 07/01/2013 07/01/2013 07/01/2013
07/01/2013
07/01/2013 07/01/2013 07/02/2013

# Docket Text
1 First MOTION for Summary Judgment by Mark Anthony Reid. (Attachments: # 1 Supplement Rule 56.1 Statement)(Carasik, Lauren) Modified on 7/2/2013 to delete the statement of facts that were an attachment and to docket them separately. (Finn, Mary). (Entered: 07/01/2013)
2 MEMORANDUM in Support re 1 First MOTION for Summary Judgment and Petition for Writ of Habeas Corpus filed by Mark Anthony Reid. (Attachments: # 1 Affidavit Declaration of Matt Vogel, # 2 Affidavit Declaration of Maureen Furtak and Ex A)(Carasik, Lauren) (Entered: 07/01/2013)
3 AFFIDAVIT of Tassity Johnson in Support re 1 First MOTION for Summary Judgment and Petition for Writ of Habeas Corpus filed by Mark Anthony Reid. (Attachments: # 1 Exhibit Exhibits I−U)(Carasik, Lauren) (Main Document 3 replaced on 7/2/2013) (Finn, Mary). (Additional attachment(s) added on 7/2/2013: # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I Thru U) (Finn, Mary). Modified on 7/2/2013 to separate exhibits A − H and to modify exhibit H due to containing confidential materail(Finn, Mary). (Entered: 07/01/2013)
4 PETITION for Writ of Habeas Corpus (2241) and Complaint for Injunctive Relief Filing fee: $ 5, receipt number 0101−4525430 Fee status: Filing Fee paid., filed by Mark Anthony Reid. (Attachments: # 1 Civil Cover Sheet)(Carasik, Lauren) (Additional attachment(s) added on 7/2/2013: # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I − U) (Finn, Mary). (Entered: 07/01/2013)
5 MOTION for Order to Show Cause by Mark Anthony Reid.(Carasik, Lauren) (Entered: 07/01/2013)
7 Statement of Material Facts L.R. 56.1 re 1 First MOTION for Summary Judgment filed by Mark Anthony Reid. (Finn, Mary) (Entered: 07/02/2013)
6 ELECTRONIC NOTICE of Case Assignment. Judge Michael A. Ponsor assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Kenneth P. Neiman. (Abaid, Kimberly) (Finn, Mary). (Entered: 07/02/2013)

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07/02/2013 07/02/2013 07/02/2013 07/03/2013 07/03/2013 07/03/2013 07/03/2013 07/03/2013 07/08/2013
07/10/2013 07/10/2013 07/10/2013
07/10/2013 07/22/2013

8 Judge Michael A. Ponsor: ORDER entered. SERVICE ORDER re 2241 Petition. Order entered pursuant to 28 U.S.C. 2243 governing Section 2241 cases for service on respondents. The answer or responsive pleading is due no later than 21 days from receipt of this order. (Finn, Mary) (Entered: 07/02/2013)
9 MOTION for Leave to File by Mark Anthony Reid.(Carasik, Lauren) (Entered: 07/02/2013)
10 Category Sheet by Mark Anthony Reid. (Carasik, Lauren) (Entered: 07/02/2013)
11 Letter/request (non−motion) from Attorney Lauren Carasik requesting that summons be issued to the Respondents/Defendants in this case.. (Finn, Mary) (Entered: 07/03/2013)
12 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 9 Motion for Leave to File Document. (Memorandum already filed − see doc. 2 . (Finn, Mary) (Entered: 07/03/2013)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund re 4 Petition for Writ of Habeas Corpus (2241),, for $5.00 paid on 07/01/2013, receipt number 0101−4525421. (Adam, Lucien) (Entered: 07/03/2013)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund re 4 Petition for Writ of Habeas Corpus (2241),, for $5.00 paid on 07/01/2013, receipt number 0101−4525416. (Adam, Lucien) (Entered: 07/03/2013)
13 Online access to documents in this case is limited to counsel of record only. All documents are available for review in the Office of the Clerk. Counsel of record: please note that you will need to log into CM/ECF to access any documents in this case. (Alves−Baptista, Antonia) (Entered: 07/03/2013)
14 Summons Issued as to Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. per allowance of Judge Ponsor. (Finn, Mary) (Entered: 07/08/2013)
15 MOTION for Leave to Appear Pro Hac Vice for admission of Muneer I. Ahmad Filing fee: $ 100, receipt number 0101−4536130 by Mark Anthony Reid. (Attachments: # 1 Affidavit of Muneer I. Ahmad)(Carasik, Lauren) (Entered: 07/10/2013)
16 MOTION for Leave to Appear Pro Hac Vice for admission of Michael J. Wishnie Filing fee: $ 100, receipt number 0101−4536150 by Mark Anthony Reid. (Attachments: # 1 Affidavit of Michael J. Wishnie)(Carasik, Lauren) (Entered: 07/10/2013)
17 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 15 Motion for Leave to Appear Pro Hac Vice Added Michael J. Wishnie and Muneer I. Ahmad.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. ; granting 16 Motion for Leave to Appear Pro Hac Vice Added Michael J. Wishnie and Muneer I. Ahmad.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 07/10/2013)
18 NOTICE issued to Attorney Muneer I. Ahmad regarding mandatory registration and use with ECF in compliance with the Standing Order entered by Judge Ponsor and Magistrate Judge Neiman. (Finn, Mary) (Entered: 07/10/2013)
19 NOTICE of Appearance by Regan Hildebrand on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson,

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07/23/2013 07/23/2013
07/23/2013 07/24/2013 07/24/2013
07/25/2013 07/25/2013 07/26/2013 07/28/2013 07/29/2013 07/30/2013 07/30/2013 08/05/2013

Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Hildebrand, Regan) (Entered: 07/22/2013)
20 MOTION for Leave to Appear Pro Hac Vice for admission of A. Nicole Hallett Filing fee: $ 100, receipt number 0101−4555870 by Mark Anthony Reid. (Attachments: # 1 Affidavit In Support of Motion for Leave to Appear Pro Hac Vice)(Carasik, Lauren) (Entered: 07/23/2013)
21 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 20 Motion for Leave to Appear Pro Hac Vice Added A. Nicole Hallett. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 07/23/2013)
22 NOTICE issued to Attorney A. Nicole Hallett regarding mandatory registration and use with ECF in compliance with the Standing Order entered by Judge Ponsor and Magistrate Judge Neiman. (Finn, Mary) (Entered: 07/23/2013)
23 Notice of correction to docket made by Court staff. Correction: Document 23 − Affidavit of Service. corrected because: Document deleted due to the incorrect event was chosen when docketed − event re−docketed. (Finn, Mary) (Entered: 07/24/2013)
24 AFFIDAVIT OF SERVICE Executed by Mark Anthony Reid. Christopher Donelan served on 7/17/2013, answer due 8/7/2013; Thomas Hodgson served on 7/17/2013, answer due 8/7/2013; David A Lanoie served on 7/17/2013, answer due 8/7/2013; Joseph McDonald served on 7/18/2013, answer due 8/8/2013; Steven Tompkins served on 7/17/2013, answer due 8/7/2013. Acknowledgement filed by Mark Anthony Reid. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Finn, Mary) (Entered: 07/24/2013)
25 NOTICE of Appearance by Elianis N. Perez on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Perez, Elianis) (Entered: 07/25/2013)
26 AFFIDAVIT OF SERVICE Executed by Mark Anthony Reid. Acknowledgement filed by Mark Anthony Reid. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Carasik, Lauren) (Entered: 07/25/2013)
27 MOTION for Extension of Time to 08/22/2013 to File Answer by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Hildebrand, Regan) (Entered: 07/26/2013)
28 Opposition re 27 MOTION for Extension of Time to 08/22/2013 to File Answer filed by Mark Anthony Reid. (Carasik, Lauren) (Main Document 28 replaced on 7/31/2013 with correct signed motion and Additional attachment(s) added on 7/31/2013: # 1 Certificate of Service added to the entry) (Finn, Mary). Modified on 7/31/2013 (Finn, Mary). (Entered: 07/28/2013)
29 CASE REFERRED to Magistrate Judge Kenneth P. Neiman. (Finn, Mary) Motions referred to Kenneth P. Neiman. 13 Motion for Extension of Time to 8/22/2013 to File an Answer. (Entered: 07/29/2013)
30 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 27 Motion for Extension of Time to Answer re 4 Petition for Writ of Habeas Corpus (2241). Answer to 4 Petition for Writ of Habeas Corpus due by 8/16/2013. (Finn, Mary) (Entered: 07/30/2013)
31 Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Finn, Mary) (Entered: 07/30/2013)
32 Letter/request (non−motion) from Reid counsel re: 24 and 26 Affidavit of Service. Attached hereto find certified mail returns and USPS and Fed Ex tracking receipts. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit

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08/15/2013 08/16/2013 08/16/2013
08/16/2013
08/20/2013
08/21/2013 08/21/2013 08/30/2013 09/06/2013 09/09/2013 09/10/2013
09/16/2013

E, # 6 Exhibit F, # 7 Exhibit G)(Hallett, A.) (Entered: 08/05/2013)
33 MOTION to Certify Class or Representative Habeas Action by Mark Anthony Reid.(Hallett, A.) (Entered: 08/15/2013)
34 MEMORANDUM in Support re 33 MOTION to Certify Class or Representative Habeas Action filed by Mark Anthony Reid. (Attachments: # 1 Affidavit of Easha Anand, # 2 Exhibit 1, # 3 Exhibit 2)(Hallett, A.) (Additional attachment(s) added on 8/16/2013: # 4 Certificate of Service) (Finn, Mary). Modified on 8/16/2013 to add the certificate of service to the entry. (Finn, Mary). (Entered: 08/16/2013)
35 MOTION to Dismiss for Lack of Jurisdiction and Opposition to the 4 PETITION for Writ of Habeas Corpus (2241) and Complaint for Injunctive Relief by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins.(Hildebrand, Regan) Modified on 8/19/2013 to link this document to document 4 due to it is a Motion to Dismiss and an Opposition. (Finn, Mary). (Entered: 08/16/2013)
36 MEMORANDUM in Support re 35 MOTION to Dismiss for Lack of Jurisdiction filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit)(Hildebrand, Regan) (Additional attachment(s) added on 8/19/2013: # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Finn, Mary). Modified on 8/19/2013 to separate exhibits 1 − 3 and to add them each individually to the entry. (Finn, Mary). (Entered: 08/16/2013)
37 MOTION for Extension of Time to September 6, 2013 to File Response/Reply as to 33 MOTION to Certify Class or Representative Habeas Action, 34 Memorandum in Support of Motion, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Hildebrand, Regan) (Entered: 08/20/2013)
38 Opposition re 37 MOTION for Extension of Time to September 6, 2013 to File Response/Reply as to 33 MOTION to Certify Class or Representative Habeas Action, 34 Memorandum in Support of Motion, filed by Mark Anthony Reid. (Hallett, A.) (Entered: 08/21/2013)
39 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 37 Motion for Extension of Time to File Response/Reply re 33 MOTION to Certify Class or Representative Habeas Action. Responses due by 9/6/2013. (Finn, Mary) (Entered: 08/21/2013)
40 RESPONSE to Motion re 35 MOTION to Dismiss for Lack of Jurisdiction filed by Mark Anthony Reid. (Wishnie, Michael) (Entered: 08/30/2013)
41 Opposition re 33 MOTION to Certify Class or Representative Habeas Action filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Perez, Elianis) (Entered: 09/06/2013)
42 MOTION for Leave to File Reply to Respondents' Opposition to Motion for Class Certification by Mark Anthony Reid.(Wishnie, Michael) (Entered: 09/09/2013)
43 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 42 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Pelegano, Theresa) (Entered: 09/10/2013)
44 REPLY to Response to 33 MOTION to Certify Class or Representative Habeas Action filed by Mark Anthony Reid. (Wishnie, Michael) (Entered: 09/16/2013)

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10/17/2013 10/17/2013 10/17/2013 10/17/2013 10/29/2013
11/07/2013
11/08/2013
11/12/2013 11/12/2013 11/13/2013 11/14/2013 11/14/2013
11/14/2013
11/14/2013 11/15/2013

45 MOTION Leave to Appear as Supervising Attorneys by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/17/2013)
46 MEMORANDUM in Support re 45 MOTION Leave to Appear as Supervising Attorneys filed by Mark Anthony Reid. (Attachments: # 1 Affidavit Ahmad Declaration, # 2 Affidavit Hallett Declaration, # 3 Affidavit Wishnie Declaraion)(Wishnie, Michael) (Entered: 10/17/2013)
47 MOTION Leave to Appear as Law Students by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/17/2013)
48 MEMORANDUM in Support re 47 MOTION Leave to Appear as Law Students filed by Mark Anthony Reid. (Attachments: # 1 Exhibit Law Student Certification Forms, # 2 Affidavit Hinman Declaration, # 3 Affidavit Mai Declaration, # 4 Affidavit Swift Declaration)(Wishnie, Michael) (Entered: 10/17/2013)
49 ELECTRONIC NOTICE Setting Hearing on Motion 33 MOTION to Certify Class or Representative Habeas Action, 5 MOTION for Order to Show Cause , 1 First MOTION for Summary Judgment , 35 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing set for 12/10/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 10/29/2013)
51 MOTION to Seal by Mark Anthony Reid.(Wishnie, Michael) (Main Document 51 replaced on 11/7/2013) (Finn, Mary). (Additional attachment(s) added on 11/7/2013: # 1 Proposed Order) (Finn, Mary). Modified on 11/7/2013 to separate the proposed order from the main document and to add it as an attachment. (Finn, Mary). (Entered: 11/07/2013)
54 Chief Judge Patti B. Saris: Order of Temporary Admission of Miriam Hinman, Kendall Hoechst, Lunar Mai, Elizabeth Song, Ruth Swift and Mary Yanik. All law student interns at Yale Law School. The above named law students are allowed to practice under the supervision of Attorneys Muneer I. Ahmad, A. Nicole Hallett and Michael J. Wishine. The student interns from Yale Law School have all met the requirements as stated in Local Rule 83.5.1(b), Student Law Practice. ORDER entered. (McLaughlin, Tracy) (Entered: 11/13/2013)
52 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 51 Motion to Seal. ALLOWED. See order. (Lindsay, Maurice) (Entered: 11/12/2013)
53 Judge Michael A. Ponsor: ORDER entered. ORDER granting 51 Motion to seal. see attached order for details. (Lindsay, Maurice) (Entered: 11/12/2013)
55 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 47 Motion Leave to Appear as Law Students. ALLOWED. (Lindsay, Maurice) (Entered: 11/13/2013)
56 Notice of Supplemental Authorities re 5 MOTION for Order to Show Cause , 51 MOTION to Seal (Wishnie, Michael) (Entered: 11/14/2013)
57 Emergency MOTION for a Hearing re 1 First MOTION for Summary Judgment for Telephonic Conference and Expedited Adjudication by Mark Anthony Reid. (Attachments: # 1 Exhibit, # 2 Exhibit)(Wishnie, Michael) Modified on 11/14/2013 to correct the relief type of the motion to MOTION for a Hearing. (Finn, Mary). (Entered: 11/14/2013)
58 Judge Michael A. Ponsor: ELECTRONIC ORDER entered denying 57 Motion for Telephonic Hearing. The court will hear argument by counsel, in person on November 18,2013 at noon regarding Petitioner's motion for summary judgment (dkt.1) and Respondent's motion to dismiss (dkt. 35) So Ordered. (Pelegano, Theresa) (Entered: 11/14/2013)
59 ELECTRONIC NOTICE Setting Hearing on Motion 1 First MOTION for Summary Judgment , 35 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing set for 11/18/2013 12:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 11/14/2013)
61 RESPONSE to Motion re 57 MOTION for Hearing filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit)(Hildebrand, Regan) (Additional

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11/17/2013 11/18/2013
11/20/2013 11/22/2013
11/22/2013 11/22/2013 11/25/2013 11/25/2013
11/26/2013 11/27/2013 12/04/2013 12/06/2013 12/06/2013

attachment(s) added on 11/18/2013: # 2 Exhibit 1, # 3 Exhibit 2) (Finn, Mary). Modified on 11/18/2013 to separate exhibits 1 & 2 and to add them each individually to the entry. (Finn, Mary). (Entered: 11/15/2013)
62 REPLY to Response to 57 MOTION for Hearing filed by Mark Anthony Reid. (Wishnie, Michael) (Entered: 11/17/2013)
63 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 11/18/2013 re 57 MOTION for Hearing /relief filed by Mark Anthony Reid, Court denies relief as to hearing on 11/19/13(Motion Hearing set for 12/10/2013 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. Time change). (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Perez, Wishnie, Song) (Pelegano, Theresa) (Entered: 11/18/2013)
64 Consent MOTION for Leave to File Reply Brief Nunc Pro Tunc by Mark Anthony Reid.(Wishnie, Michael) (Entered: 11/20/2013)
65 Transcript of Motion Hearing held on November 18, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 12/13/2013. Redacted Transcript Deadline set for 12/23/2013. Release of Transcript Restriction set for 2/20/2014. (Scalfani, Deborah) (Entered: 11/22/2013)
66 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 11/22/2013)
67 ELECTRONIC NOTICE Resetting Hearing on Motion Motion Hearing set for 12/12/2013 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. The hearing scheduled for 12/10/13 has been rescheduled to 12/12/13. (Pelegano, Theresa) (Entered: 11/22/2013)
68 WRIT of Habeas Corpus issued for hearing on 12/12/13 at 10am for MArk Anthony Reid (Pelegano, Theresa) (Entered: 11/25/2013)
69 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 64 Motion for Leave to File Petitioner's Reply Brief. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 11/25/2013)
70 NOTICE of Appearance by Colin Abbott Kisor on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Kisor, Colin) (Entered: 11/26/2013)
71 MOTION to Compel Discovery by Mark Anthony Reid. (Attachments: # 1 Exhibit Discovery to Gallagher, # 2 Exhibit Discovery to Donelan, # 3 Exhibit 30b6 Notice, # 4 Exhibit Protective Order, # 5 Exhibit Email Exchange, # 6 Exhibit Hearing Notice)(Wishnie, Michael) (Entered: 11/27/2013)
72 REPLY to the Respondent's response to their 57 Motion for a Hearing by Mark Anthony Reid filed. . (Wishnie, Michael) Modified on 12/5/2013 to correct the text to reflect the document that is being filed. (Finn, Mary). (Entered: 12/04/2013)
73 First Opposition re 71 MOTION to Compel Discovery filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit 1)(Perez, Elianis) (Entered: 12/06/2013)
74 MOTION to Withdraw 61 Response to Motion,, , MOTION for Extension of Time to January 7, 2014 to File Response/Reply re 2 Memorandum in Support of Motion, 4 Petition for Writ of Habeas Corpus (2241), 1 First MOTION for Summary Judgment (

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12/12/2013 12/18/2013 01/03/2014 01/06/2014 01/06/2014 01/09/2014
01/13/2014 01/13/2014 01/14/2014

Responses due by 12/20/2013) by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit Respondents' Exhibits, # 2 Text of Proposed Order Proposed Order)(Hildebrand, Regan) Modified on 12/6/2013 to change the second relief type of the motion to MOTION to ext. time to file resp./reply. (Finn, Mary). (Entered: 12/06/2013)
75 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 12/12/2013 Argument completed. Order to issue. Opp to be filed on shackle issue by 1/6/14 reply by 1/13/14. (Hearing set for 1/16/2014 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Swift, Yonik, Song, Perez) (Pelegano, Theresa) (Entered: 12/12/2013)
76 Notice of Supplemental Authorities re 5 MOTION for Order to Show Cause (Wishnie, Michael) (Entered: 12/18/2013)
77 Cross MOTION for Summary Judgment and MOTION to dismiss by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Affidavit Appendix A)(Kisor, Colin). Added an additional relief − MOTION to Dismiss on 1/6/2014 (Finn, Mary). (Entered: 01/03/2014)
78 WRIT OF HABEAS CORPUS issued for hearing 1/16/14 (Pelegano, Theresa) (Entered: 01/06/2014)
79 NOTICE of Appearance by J. Max Weintraub on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Weintraub, J.) (Main Document 79 replaced on 1/7/2014 with correct signed notice of appearance) (Finn, Mary). Modified on 1/7/2014 (Finn, Mary). (Entered: 01/06/2014)
80 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons outlined in the attached memo and order, Plaintiffs Petition for Habeas Corpus (Dkt. No. 4 ) is hereby ALLOWED, and Plaintiffs Motion for Order to Show Cause (Dkt. No. 5 ) is hereby DENIED as moot. Having allowed the Petition for Habeas Corpus, the court orders as follows: 1. Petitioner will receive a bond hearing by February 7, 2014, before an Immigration Judge, at which the judge will consider whether conditions may be placed upon Petitioners release that will reasonably ensure that he will pose no danger to the community and will not pose a risk of flight. If such conditions are found to exist, Petitioner will be released from custody. 2. Counsel for Respondents will report to this court on or before February 14, 2014, regarding compliance with this order. This report will include notification as to the outcome of the bond hearing. 3. Failure of an Immigration Judge to conduct the bond hearing as ordered will entitle Petitioner to request a bond hearing before this court. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 01/09/2014)
81 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 74 Motion to Withdraw ; granting as ordered in court on 12/12/13. (Pelegano, Theresa) (Entered: 01/13/2014)
82 REPLY TO RESPONSE to Motion re 1 First MOTION for Summary Judgment and RESPONSE to 77 Cross MOTION for Summary Judgment and motion to dismiss MOTION to Dismiss filed by Mark Anthony Reid. (Wishnie, Michael) Modified on 1/14/2014 to correct the text to reflect the document that is being filed. (Finn, Mary). (Entered: 01/13/2014)
83 MOTION to Withdraw Motion To Dismiss For Lack Of Standing by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins.(Hildebrand, Regan) (Entered: 01/14/2014)

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01/16/2014 01/22/2014 01/22/2014 01/22/2014 01/24/2014
01/24/2014 01/27/2014 02/06/2014 02/10/2014
02/17/2014
02/25/2014 03/02/2014 03/02/2014

84 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Hearing re on shackle issue held on 1/16/2014. Argument completed. Order to issue. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Hildebrand, Hinman) (Pelegano, Theresa) (Entered: 01/16/2014)
85 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 35 Motion to Dismiss for Lack of Jurisdiction. Motion to dismiss is hereby DENIED as moot. (Lindsay, Maurice) (Entered: 01/22/2014)
86 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 83 Motion to Withdraw 35 MOTION to Dismiss for Lack of Jurisdiction . ALLOWED. (Lindsay, Maurice) (Entered: 01/22/2014)
87 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 71 Motion to Compel Discovery. DENIED, as moot. (Lindsay, Maurice) (Entered: 01/22/2014)
88 Transcript of Motion Hearing held on January 16, 2014, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 2/14/2014. Redacted Transcript Deadline set for 2/24/2014. Release of Transcript Restriction set for 4/24/2014. (Scalfani, Deborah) (Entered: 01/24/2014)
89 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/24/2014)
90 Notice of Supplemental Authorities re 1 First MOTION for Summary Judgment (Attachments: # 1 Exhibit Abadia−Peixoto Settlement Agreement)(Wishnie, Michael) (Entered: 01/27/2014)
91 Notice of Supplemental Authorities re 1 First MOTION for Summary Judgment (Attachments: # 1 Exhibit Immigration Judge Order Granting Bond)(Wishnie, Michael) (Entered: 02/06/2014)
92 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered: As follows: For the reasons set forth in the attached memo and order, Plaintiffs Motion for ClassCertification under Fed. R. Civ. P. 23 (Dkt. No. 33 ) is hereby ALLOWED. The court certifies the following class: All individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing. Plaintiff Reid is appointed class representative, and Nicole Hallet, Muneer Ahmad, Michael J. Wishnie, and the Law Student Interns of the Jerome N. Frank Legal Services Organization at Yale Law School are appointed class counsel pursuant to Fed. R. Civ. P. 23(g). The parties shall submit a joint proposal setting forth a briefing schedule for the filing of dispositive motions no later than February 25, 2014. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 02/10/2014)
93 NOTICE of Appearance by Yamileth G. Davila on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Attachments: # 1 Certificate Of Service)(Davila, Yamileth) (Main Document 93 replaced on 2/18/2014 with the notice of appearance in the correct PDF format) (Finn, Mary). Modified on 2/18/2014 (Finn, Mary). (Entered: 02/17/2014)
94 Joint MOTION Scheduling Order re 92 Order on Motion to Certify Class,,, by Mark Anthony Reid.(Wishnie, Michael) Modified on 2/26/2014 to change the relief type of the motion to MOTION for an Order. (Finn, Mary). (Entered: 02/25/2014)
95 First MOTION Notice of Class Certification by Mark Anthony Reid. (Wishnie, Michael) (Main Document 95 replaced on 3/3/2014 with the correct main document) (Finn, Mary). Modified on 3/3/2014 (Finn, Mary). (Entered: 03/02/2014)
96 FIRST MOTION for Preliminary Injunction by Mark Anthony Reid. (Wishnie, Michael) (Main Document 96 replaced on 3/3/2014 with correct main document)

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03/03/2014 03/03/2014 03/03/2014 03/04/2014 03/05/2014 03/05/2014 03/05/2014 03/05/2014 03/06/2014
03/10/2014

(Finn, Mary). Modified on 3/3/2014 (Finn, Mary). Modified on 3/3/2014 to add the word FIRST to the text. (Finn, Mary). (Entered: 03/02/2014)
97 MEMORANDUM in Support re 95 First MOTION Notice of Class Certification filed by Mark Anthony Reid. (Attachments: # 1 Exhibit Declaration of Lunar Mai, # 2 Exhibit Declaration of Genevieve Quinn, # 3 Exhibit Declaration of James Welcome, # 4 Text of Proposed Order Blank Proposed Order, # 5 Exhibit Sample Draft Notice)(Wishnie, Michael) (Entered: 03/03/2014)
98 MEMORANDUM in Support re 96 MOTION for Preliminary Injunction filed by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order Blank Proposed Order)(Wishnie, Michael) (Entered: 03/03/2014)
101 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: The parties Joint Motion for a Scheduling Order (Dkt. No. 94 ) is hereby ALLOWED, Cross−motions for summary judgment due 5/1/14, Opposition to the motions due 5/30/14, and Counsel will appear for argument on the motions on 6/4/14 at 2:00 p.m. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 03/04/2014)
102 Set/Reset Deadlines: Cross Motions for S/J due by 5/1/2014. Responses due by 5/30/2014. Motion Hearing set for 6/4/2014 02:00 PM in Franklin Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 03/04/2014)
103 MOTION for leave to consolidate response to Plaintiff's request for injunction with cross−motion for summary judgment by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Davila, Yamileth) (Entered: 03/05/2014)
104 Transcript of Motion Hearing held on December 12, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 3/26/2014. Redacted Transcript Deadline set for 4/7/2014. Release of Transcript Restriction set for 6/3/2014. (Scalfani, Deborah) (Entered: 03/05/2014)
105 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/05/2014)
106 RESPONSE to Motion re 103 MOTION for leave to consolidate response to Plaintiff's request for injunction with cross−motion for summary judgment filed by Mark Anthony Reid. (Hallett, A.) (Entered: 03/05/2014)
107 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated. Plaintiffs Motion for Summary Judgment on the shackling issue (Dkt. No. 1 ) is hereby DENIED, and Defendants Cross−Motion for SummaryJudgment on this issue (Dkt. No. 77 ) is hereby ALLOWED. The case will continue on the broader issue relating to individual bond hearings that are defined in the class certification. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 03/06/2014)
108 NOTICE OF APPEAL as to 80 Order on Motion for Order to Show Cause,,,, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court

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03/11/2014 03/11/2014 03/12/2014
03/12/2014 03/27/2014 03/27/2014 04/03/2014 04/03/2014 04/04/2014 04/04/2014 04/04/2014 04/04/2014 04/04/2014

Clerk to deliver official record to Court of Appeals by 3/31/2014. (Perez, Elianis) (Entered: 03/10/2014)
109 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 108 Notice of Appeal (Paine, Matthew) (Entered: 03/11/2014)
110 USCA Case Number 14−1270 for 108 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins. (Paine, Matthew) (Entered: 03/11/2014)
111 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated. Defendants Motion for Consolidated Briefing (Dkt. No. 103 ) is hereby ALLOWED. Cross−motions for summary judgment in this case due4/4/14, Oppositions to the cross−motions for summary judgment, to the motion for class certification, and to the motion for preliminary injunction will be filed by 4/28/14, Counsel will appear for argument on all pending motions on 5/7/14 at 11:00 a.m. The motion hearing previously scheduled for June 4, 2014 is hereby vacated. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 03/12/2014)
112 Set/Reset Deadlines: Cross Motions for S/J due by 4/4/2014.Opposition's to cross−motions for S/J, 96 MOTION for Preliminary Injunction , 95 First MOTION Notice of Class Certification due by 4/28/2014. Motion Hearing set for 5/7/2014 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 03/12/2014)
113 MOTION Motion for Leave to Appear as Law Students by Mark Anthony Reid.(Wishnie, Michael) (Entered: 03/27/2014)
114 MEMORANDUM in Support re 113 MOTION Motion for Leave to Appear as Law Students filed by Mark Anthony Reid. (Attachments: # 1 Exhibit Toren Law Student Certification Form, # 2 Exhibit Thomas Law Student Certification Form, # 3 Affidavit Thomas Declaration, # 4 Affidavit Toren Declaration)(Wishnie, Michael) (Entered: 03/27/2014)
115 ELECTRONIC NOTICE OF RESCHEDULING Hearing set for 6/4/2014 10:00 AM in Franklin Courtroom before Judge Michael A. Ponsor. (TIME CHANGE ONLY)(Pelegano, Theresa) (Entered: 04/03/2014)
116 ELECTRONIC NOTICE Canceling Hearing. Hearing set for 6/4/2014 10:00 AM in Franklin Courtroom. Notice scheduling hearing was entered in error. (Pelegano, Theresa) (Entered: 04/03/2014)
117 Cross MOTION for Summary Judgment by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Davila, Yamileth) (Entered: 04/04/2014)
118 MEMORANDUM in Support re 117 Cross MOTION for Summary Judgment filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Davila, Yamileth) (Entered: 04/04/2014)
119 Set/Reset Deadlines as to 117 Cross MOTION for Summary Judgment . Petitioners' Responses due by 5/30/2014. Motion Hearing set for 6/4/2014 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 04/04/2014)
121 Notice of correction to docket made by Court staff. Correction: Document 120 − Procedural Order corrected because: Entry deleted due to being docketed in the incorrect case. (Finn, Mary) (Entered: 04/04/2014)
122 Amended MEMORANDUM in Support re 117 Cross MOTION for Summary Judgment filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Davila,

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04/04/2014 04/04/2014
04/04/2014 04/07/2014 04/15/2014 04/15/2014 04/15/2014 04/16/2014 04/28/2014
04/28/2014
04/28/2014
04/28/2014
05/05/2014
05/06/2014

Yamileth) (Entered: 04/04/2014)
123 Cross MOTION for Summary Judgment by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order)(Wishnie, Michael) (Entered: 04/04/2014)
124 MEMORANDUM in Support re 123 Cross MOTION for Summary Judgment filed by Mark Anthony Reid. (Attachments: # 1 Exhibit Declaration of Mark Reid, # 2 Exhibit Declaration of Elyssa Williams, # 3 Exhibit Declaration of Peter Miller, # 4 Exhibit Declaration of Sara Simeonidis, # 5 Exhibit Declaration of Devorah Toren)(Wishnie, Michael) (Entered: 04/04/2014)
125 Statement of Material Facts L.R. 56.1 re 123 Cross MOTION for Summary Judgment filed by Mark Anthony Reid. (Wishnie, Michael) (Entered: 04/04/2014)
126 Set/Reset Deadlines as to 117 Cross MOTION for Summary Judgment , 123 Cross MOTION for Summary Judgment . Responses due by 4/28/2014. (Finn, Mary) (Entered: 04/07/2014)
127 NOTICE of Appearance by Sameer Ahmed on behalf of Mark Anthony Reid (Ahmed, Sameer) (Entered: 04/15/2014)
128 NOTICE of Appearance by Anant K. Saraswat on behalf of Mark Anthony Reid (Saraswat, Anant) (Entered: 04/15/2014)
129 NOTICE of Appearance by Mark C. Fleming on behalf of Mark Anthony Reid (Fleming, Mark) (Entered: 04/15/2014)
130 NOTICE of Appearance by Rebecca Fabian Izzo on behalf of Mark Anthony Reid (Izzo, Rebecca) (Entered: 04/16/2014)
131 MEMORANDUM in Opposition re 117 Cross MOTION for Summary Judgment filed by Mark Anthony Reid. (Attachments: # 1 Exhibit A − Benzan First Aff, # 2 Exhibit B − Benzan Second Aff, # 3 Exhibit C − Brown Decl, # 4 Exhibit D − Labbon Decl, # 5 Exhibit E − Lewis Decl, # 6 Exhibit F − Nooks Decl, # 7 Exhibit G − Osakwe Decl, # 8 Exhibit H − Quinn Decl, # 9 Exhibit I − Thompson Decl, # 10 Exhibit J − Williams Decl, # 11 Exhibit K − TRAC)(Wishnie, Michael) (Entered: 04/28/2014)
132 MEMORANDUM in Opposition re 123 Cross MOTION for Summary Judgment filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Davila, Yamileth) (Entered: 04/28/2014)
133 MEMORANDUM in Opposition re 95 First MOTION Notice of Class Certification filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit 3/26/14 letter)(Davila, Yamileth) (Entered: 04/28/2014)
134 MEMORANDUM in Opposition re 96 MOTION for Preliminary Injunction filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Davila, Yamileth) (Main Document 134 replaced on 4/29/2014 with correct signed main document) (Finn, Mary). Modified on 4/29/2014 (Finn, Mary). (Entered: 04/28/2014)
135 MOTION for Leave to File Reply to Defendants' Oppositions to Motions for Summary Judgment, Notice of Class Certification, and Preliminary Injunction by Mark Anthony Reid. (Attachments: # 1 Ex. A: Proposed Reply in Support of Plaintiffs' Motion for Summary Judgment, # 2 Ex. B: Proposed Reply in Support of Plaintiffs' Motion for Notice of Class Certification, # 3 Ex. C: Proposed Reply in Support of Plaintiffs' Motion for Preliminary Injunction)(Izzo, Rebecca) (Entered: 05/05/2014)
136 Chief Judge Patti B. Saris: ORDER OF TEMPORARY ADMISSION entered granting in part and denying in part 113 Motion for Leave to Appear as Law Students. (Folan, Karen) (Entered: 05/06/2014)

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05/07/2014 05/27/2014
05/27/2014 05/27/2014 05/27/2014 05/27/2014
05/29/2014 07/21/2014
07/22/2014 07/22/2014

137 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 5/7/2014 Re; MOTIONS for Summary Judgment and MOTION Notice of Class Certification. Argument completed. Court takes motions under advisement. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 05/07/2014)
138 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 135 Motion for Leave to File Reply to Defendants' Oppositions to Motions for Summary Judgment, Notice of Class Certification, and Preliminary Injunction; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 05/27/2014)
139 REPLY to Response to 123 Cross MOTION for Summary Judgment Leave to file granted on 5/27/2014 filed by Mark Anthony Reid. (Izzo, Rebecca) (Entered: 05/27/2014)
140 REPLY to Response to 95 First MOTION Notice of Class Certification Leave to file granted on 5/27/2014 filed by Mark Anthony Reid. (Attachments: # 1 Declaration of Mary Yanik)(Izzo, Rebecca) (Entered: 05/27/2014)
141 REPLY to Response to 96 MOTION for Preliminary Injunction Leave to file granted on 5/27/2014 filed by Mark Anthony Reid. (Izzo, Rebecca) (Entered: 05/27/2014)
142 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, the court hereby ALLOWS Plaintiffs Motion for Summary Judgment (Dkt. No. 123 ), and Plaintiffs Motion for Notice of Class Certification (Dkt. No. 95 ), DENIES Defendants Motion for Summary Judgment (Dkt. No. 117 ), and DENIES as moot Plaintiffs Motion for a Preliminary Injunction (Dkt. No. 96 ). The clerk shall set this matter for a status conferenceon September 15, 2014, at 4:00 p.m., to review Defendants compliance with this order and to discuss entry of final judgment. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 05/27/2014)
143 ELECTRONIC NOTICE of Hearing. Status Conference set for 9/15/2014 04:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 05/29/2014)
144 MOTION For Enforcement or MOTION for Modification of Class Certification Order and MOTION for Limited Discovery by Mark Anthony Reid. (Attachments: # 1 Proposed Order, # 2 Declaration of Rebecca F. Izzo, # 3 Declaration of David Fisher, # 4 Declaration of Genevieve Quinn, # 5 First Declaration of Elyssa Williams, # 6 Second Declaration of Elyssa Williams, # 7 Third Declaration of Elyssa Williams, # 8 Declaration of Jeffrey B. Rubin, # 9 Declaration of Melvin Nooks, # 10 Declaration of Thomas Rome)(Izzo, Rebecca). Added 2 additional reliefs − MOTION to Modify, MOTION for Discovery on 7/22/2014 (Finn, Mary). (Main Document 144 replaced on 7/22/2014 with correct signed main document) (Finn, Mary). Modified on 7/22/2014 (Finn, Mary). (Entered: 07/21/2014)
145 MOTION for Extension of Time to File Response/Reply by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Hildebrand, Regan) (Entered: 07/22/2014)
146 NOTICE OF APPEAL as to 142 Order on Motion for Miscellaneous Relief, Order on Motion for Preliminary Injunction, Order on Motion for Summary Judgment,,,,,,,,, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF

Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 28 of 55

07/23/2014
07/23/2014 07/23/2014 07/23/2014 07/30/2014
07/31/2014 07/31/2014 07/31/2014 08/01/2014 08/04/2014 08/07/2014

Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 8/11/2014. (Perez, Elianis) (Entered: 07/22/2014)
147 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 145 Motion for Extension of Time to respond to 144 MOTION For Enforcement or MOTION for Modification of Class Certification Order and MOTION for Limited Discovery by Mark Anthony Reid . Respondent/Defts' response due by 8/11/2014. (Finn, Mary) Modified on 7/23/2014 to correct the text to reflect that the Respondents' resp. pertains to document 144 , not 145 . (Finn, Mary). (Entered: 07/23/2014)
148 Set/Reset Deadlines as to 144 MOTION For Enforcement or Modification of Class Certification Order and For Limited Discovery MOTION to Modify MOTION for Discovery. Respondents/Defendants' esponses due by 8/11/2014. (Finn, Mary) (Entered: 07/23/2014)
149 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 146 Notice of Appeal. (Paine, Matthew) (Entered: 07/23/2014)
150 USCA Case Number 14−1803 for 146 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins. (Paine, Matthew) (Entered: 07/23/2014)
151 NOTICE OF CROSS APPEAL as to 142 Order on Motion for Miscellaneous Relief, Order on Motion for Preliminary Injunction, Order on Motion for Summary Judgment,,,,,,,,, by Mark Anthony Reid. ( (Fee Status: Filing Fee: Not paid)) NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 8/19/2014. (Hallett, A.) Modified on 8/1/2014 to add that the Notice of Appeal Filing fee was not paid. (Finn, Mary). (Entered: 07/30/2014)
152 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 151 Notice of Cross Appeal. (Paine, Matthew) (Entered: 07/31/2014)
153 USCA Case Number 14−1823 for 151 Notice of Cross Appeal filed by Mark Anthony Reid. (Paine, Matthew) (Entered: 07/31/2014)
154 STATUS REPORT by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit Defendants' Exhibit 1, # 2 Exhibit Defendants' Exhibit 2)(Hildebrand, Regan) (Entered: 07/31/2014)
155 Notice of Supplemental Authorities re 144 MOTION For Enforcement or Modification of Class Certification Order and For Limited Discovery MOTION to Modify MOTION for Discovery (Attachments: # 1 Exhibit Pierre Order of the Immigration Judge)(Ahmed, Sameer) (Entered: 08/01/2014)
156 NOTICE OF ATTORNEY PAYMENT OF FEES as to 151 Notice of Cross Appeal by Petitioner Mark Anthony Reid. Filing fee $ 505, receipt number 0101−5130924. Payment Type : APPEAL. (Hallett, A.) (Entered: 08/04/2014)
157 ELECTRONIC NOTICE Setting Hearing on (144 in 3:13−cv−30125−MAP) MOTION For Enforcement or Modification of Class Certification Order, For Limited Discovery, and to Modify Motion for Discovery ISSUED, cc:cl. The Status Conference originally scheduled for 9/15/2014 at 4:00 PM in Hampden Courtroom before Judge Michael A. Ponsor is hereby converted into a motion hearing. Associated Cases: 3:13−cv−30125−MAP, 3:13−cv−30146−MAP(Healy, Bethaney) (Entered: 08/07/2014)

Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 29 of 55

08/11/2014 08/22/2014 08/25/2014 08/25/2014 08/26/2014 09/04/2014
09/04/2014 09/04/2014
09/04/2014
09/04/2014 09/15/2014 09/15/2014 09/15/2014

158 Opposition re 144 MOTION For Enforcement or Modification of Class Certification Order and For Limited Discovery MOTION to Modify MOTION for Discovery filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton. (Hildebrand, Regan) (Entered: 08/11/2014)
159 NOTICE of Appearance by Matthew Segal on behalf of Mark Anthony Reid (Segal, Matthew) (Entered: 08/22/2014)
160 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Ahilan Arulanantham Filing fee: $ 100, receipt number 0101−5160500 by Mark Anthony Reid. (Attachments: # 1 Affidavit of Ahilan Arulanantham)(Segal, Matthew) (Entered: 08/25/2014)
161 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Michael Tan Filing fee: $ 100, receipt number 0101−5160534 by Mark Anthony Reid. (Attachments: # 1 Affidavit of Michael Tan)(Segal, Matthew) (Entered: 08/25/2014)
162 Assented to MOTION for Leave to File Reply to Defendants Opposition to Motion for Enforcement or Modification of Class Certification Order and For Limited Discovery by Mark Anthony Reid. (Attachments: # 1 Exhibit Exhibit A)(Izzo, Rebecca) (Entered: 08/26/2014)
163 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 162 Motion for Leave to Reply to Dft's Opposition; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 09/04/2014)
164 REPLY to Response to 144 MOTION For Enforcement or Modification of Class Certification Order and For Limited Discovery MOTION to Modify MOTION for Discovery − Leave to file granted on September 4, 2014 − filed by Mark Anthony Reid. (Attachments: # 1 Declaration of Rebecca F. Izzo)(Izzo, Rebecca) (Entered: 09/04/2014)
165 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 160 Motion for Leave to Appear Pro Hac Vice. ALLOWED. Added Ahilan Arulanantham. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 09/04/2014)
166 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 161 Motion for Leave to Appear Pro Hac Vice. ALLOWED. Added Michael King Thomas Tan. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 09/04/2014)
167 MOTION to Withdraw as Attorney by Mark Anthony Reid.(Ahmed, Sameer) (Entered: 09/04/2014)
168 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 167 Motion for Sameer Ahmed to Withdraw as Attorney. (Healy, Bethaney) (Entered: 09/15/2014)
169 ELECTRONIC NOTICE Resetting Hearing on 144 MOTION For Enforcement or Modification of Class Certification Order and For Limited Discovery ISSUED, cc:cl. Motion Hearing moved to 9/15/2014 at 3:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 09/15/2014)
170 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appaer for Motion Hearing held on 9/15/2014 re 144 MOTION For Enforcement or Modification of Class Certification Order and For Limited Discovery filed by Mark Anthony Reid. Arguments heard. Matter taken under advisement. (Court

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09/26/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014 10/06/2014
10/20/2014
11/07/2014 12/03/2014
12/09/2014
12/10/2014
12/10/2014 12/15/2014

Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).)(Attorneys present: Saraswat, Izzo, Hildebrand) (Healy, Bethaney) (Entered: 09/22/2014)
171 NOTICE by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Attachments: # 1 Exhibit)(Hildebrand, Regan) (Entered: 09/26/2014)
172 MOTION to Withdraw as Attorney for Mary Yanik by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/02/2014)
173 MOTION to Withdraw as Attorney for Tina Thomas by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/02/2014)
174 MOTION to Withdraw as Attorney for Elizabeth Song by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/02/2014)
175 MOTION to Withdraw as Attorney Kendall Hoechst by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/02/2014)
176 MOTION to Withdraw as Attorney for Miriam Hinman by Mark Anthony Reid.(Wishnie, Michael) (Entered: 10/02/2014)
177 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 172 Motion for Mary Yanik to Withdraw as Attorney; granting 173 Motion for Tina Thomas to Withdraw as Attorney; granting 174 Motion for Elizabeth Song to Withdraw as Attorney; granting 175 Motion for Kendall Hoechst to Withdraw as Attorney; and, granting 176 Motion for Miriam Hinman to Withdraw as Attorney. (Healy, Bethaney) (Entered: 10/06/2014)
178 NOTICE and Motion to Dismiss by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Attachments: # 1 Exhibit 1)(Perez, Elianis) Modified on 12/3/2014 (Healy, Bethaney). (Entered: 10/20/2014)
179 Response by Mark Anthony Reid to 171 Notice (Other), . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Wishnie, Michael) (Entered: 11/07/2014)
180 ELECTRONIC NOTICE Setting Hearing on (178 in 3:13−cv−30125−MAP) MOTION to Dismiss, (9 in 3:14−cv−30184−MAP) MOTION to Dismiss Petition for Writ of Habeas Corpus ISSUED, cc:cl. The court will hold a motion hearing and hear arguments on the merits on 12/18/2014 at 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. Associated Cases: 3:13−cv−30125−MAP, 3:14−cv−30184−MAP(Healy, Bethaney) (Entered: 12/03/2014)
181 ELECTRONIC NOTICE Resetting Hearing on Motion MOTION to Dismiss (178 in 3:13−cv−30125−MAP), and MOTION to Dismiss Petition for Writ of Habeas Corpus (9 in 3:14−cv−30184−MAP) ISSUED, cc:cl. The Motion Hearing originally set for December 18, 2014 has been moved to December 17, 2014 at 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. Associated Cases: 3:13−cv−30125−MAP, 3:14−cv−30184−MAP(Healy, Bethaney) (Entered: 12/09/2014)
182 Judge Michael A. Ponsor: MEMORANDUM AND ORDER ENTERED regarding Plaintiffs' Motion for Enforcement or Modification of Class Certification Order and for Limited Discovery (Doc. No. 144), cc:cl. See Order for details. Associated Cases: 3:13−cv−30125−MAP, 1:14−cv−14229−LTS, 3:13−cv−30146−MAP, 3:14−cv−30184−MAP(Kaplan, Jennifer) (Entered: 12/10/2014)
183 Set/Reset Hearings: Status Conference set for 1/21/2015 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 12/10/2014)
184 ELECTRONIC NOTICE Resetting Hearing on (178 in 3:13−cv−30125−MAP) MOTION to Dismiss and (9 in 3:14−cv−30184−MAP) MOTION to Dismiss Petition for Writ of Habeas Corpus ISSUED, cc:cl. The Motion Hearing is moved to 12/17/2014 at 10:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. PLEASE NOTE CHANGE IN TIME ONLY. (Healy, Bethaney) (Entered: 12/15/2014)

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12/23/2014 12/23/2014
12/30/2014 01/09/2015 01/16/2015
01/16/2015 01/21/2015 01/21/2015 01/21/2015 01/21/2015
01/22/2015 01/23/2015 01/23/2015 01/27/2015
02/02/2015

185 MOTION Motion for Leave to Appear as Law Students by Mark Anthony Reid.(Hallett, A.) (Entered: 12/23/2014)
186 MEMORANDUM in Support re 185 MOTION Motion for Leave to Appear as Law Students filed by Mark Anthony Reid. (Attachments: # 1 Appendix Law Student Certification Forms, # 2 Affidavit Grace Kao Declaration, # 3 Affidavit Conchita Cruz Delcaration, # 4 Affidavit Swapna Reddy Declaration)(Hallett, A.) (Entered: 12/23/2014)
187 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 185 Motion for leave to appear as law students. (Lindsay, Maurice) (Entered: 12/30/2014)
188 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Status Conference is moved to 1/21/2015 at 3:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 01/09/2015)
189 Joint MOTION for Protective Order by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins.(Perez, Elianis) (Additional attachment(s) added on 1/16/2015: # 1 Correct Main Document, # 2 Proposed Protective Order) (Finn, Mary). Modified on 1/16/2015 to separate the proposed protective order from the main document and to add it as an attachment. (Finn, Mary). (Entered: 01/16/2015)
190 STATUS REPORT Joint by Mark Anthony Reid. (Attachments: # 1 Exhibit Notice of Class Certification in English and Spanish)(Wishnie, Michael) (Entered: 01/16/2015)
191 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 189 Joint Motion for Entry of Protective Order. ALLOWED. (Lindsay, Maurice) (Entered: 01/21/2015)
192 Judge Michael A. Ponsor: ORDER entered. PROTECTIVE ORDER, see the attached order for details. (Lindsay, Maurice) (Entered: 01/21/2015)
193 Set Deadlines/Hearings: Status Report re: remaining discovery issues due by 3/18/2015 and Status Conference is set for 3/25/2015 at 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Lindsay, Maurice) (Entered: 01/21/2015)
197 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 1/21/2015. Colloquy re: status of case. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).)(Attorneys present: Fabian, Lafaille, Seagel) (Healy, Bethaney) (Entered: 01/27/2015)
194 MOTION to Seal by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order Proposed Order)(Wishnie, Michael) (Entered: 01/22/2015)
195 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 194 Unopposed Motion to Seal. ALLOWED. See order. (Lindsay, Maurice) (Entered: 01/23/2015)
196 Judge Michael A. Ponsor: ORDER entered. ORDER., See the attached order for details.(Lindsay, Maurice) (Entered: 01/23/2015)
198 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. The Status Conference originally set for March 25, 2015 is hereby continued to March 31, 2015 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 01/27/2015)
199 NOTICE OF APPEAL as to 182 Order on Motion for Miscellaneous Relief, Order on Motion for Modification, Order on Motion for Discovery,,, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 2/23/2015. (Perez, Elianis) (Entered: 02/02/2015)

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02/04/2015 02/04/2015 02/04/2015 02/24/2015 02/24/2015 02/24/2015 03/12/2015
03/19/2015
03/19/2015 04/01/2015 04/08/2015 04/20/2015
04/23/2015
04/24/2015 04/24/2015

200 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 199 Notice of Appeal. (Paine, Matthew) (Entered: 02/04/2015)
201 NOTICE OF MANUAL FILING by Mark Anthony Reid re 196 Order (Wishnie, Michael) (Entered: 02/04/2015)
202 USCA Case Number 15−1172 for 199 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins. (Paine, Matthew) (Entered: 02/04/2015)
204 MOTION for Extension of Time to March 24, 2015 to File the second Joint Status Report by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order)(Wishnie, Michael) (Entered: 02/24/2015)
205 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 204 Motion for Extension of Time to 3/24/2015 to file Joint Status Report. (Finn, Mary) (Entered: 02/24/2015)
206 Set/Reset Deadlines: Joint Status Report due by 3/24/2015. (Finn, Mary) (Entered: 02/24/2015)
207 Assented to MOTION Continue the Status Conference set for March 31, 2015 To April 6, 2015 and MOTION for extension of time from 3/24/2015 to 3/31/2015 to file joint status report by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Hildebrand, Regan). Added an additional relief − MOTION for Extension of Time to File on 3/12/2015 (Finn, Mary). Modified on 3/12/2015 to change the releif type of the motion from Motion Miscellaneuos relief to Motion to Continue (Finn, Mary). (Entered: 03/12/2015)
208 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 207 Motion for Extension of Time to File Status Report and Motion to Continue Status Conference, cc:cl. Allowed. The Status Conference originally set for March 31, 2015 is continued to April 8, 2015 at 3:15 PM in Hampden Courtroom before Judge Michael A. Ponsor. The parties' status report shall be filed by March 31, 2015. So ordered. (Healy, Bethaney) (Entered: 03/19/2015)
209 Set/Reset Deadlines: Parties' Status Report due by 3/31/2015. (Finn, Mary) (Entered: 03/19/2015)
210 STATUS REPORT Second Joint by Mark Anthony Reid. (Wishnie, Michael) (Entered: 04/01/2015)
266 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 4/8/2015. (Court Reporter: James Gibbons at jmsgibbons@yahoo.com.) (Healy, Bethaney) (Entered: 12/09/2015)
211 STATUS REPORT and Memorandum of Law by Mark Anthony Reid. (Attachments: # 1 Exhibit Draft Order, # 2 Exhibit EOIR−ICE Responses, # 3 Exhibit Plaintiffs' Outstanding and Follow Up Questions, # 4 Exhibit Williams Declaration regarding Fabian Richards, # 5 Exhibit Dennis Reid Declaration, # 6 Exhibit Amir Alam Declaration, # 7 Exhibit Octavio Da Costa Declaration)(Wishnie, Michael) (Entered: 04/20/2015)
212 MOTION for Extension of Time to May 1, 2015 to File Response/Reply as to 211 Status Report, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Hildebrand, Regan) (Entered: 04/23/2015)
213 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 212 Motion for A Four Day Extension of Time to File Response/Reply. ALLOWED. See order. (Lindsay, Maurice) (Entered: 04/24/2015)
214 Judge Michael A. Ponsor: ORDER entered. ORDER RE: MOTION FOR A FOUR DAY EXTENSION OF TIME TO FILE GOVERNMENT'S RESPONSE. Response due 5/1/15. (Lindsay, Maurice) (Entered: 04/24/2015)

Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 33 of 55

04/28/2015
04/28/2015 05/01/2015 05/11/2015 05/12/2015 05/15/2015 05/22/2015 05/26/2015 06/01/2015
06/02/2015 06/11/2015

215 Transcript of Status Conference held on April 8, 2015, before Judge Michael A. Ponsor. COA Case No. 15−1172. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: James Gibbons at jmsgibbons@yahoo.com Redaction Request due 5/19/2015. Redacted Transcript Deadline set for 5/29/2015. Release of Transcript Restriction set for 7/27/2015. (Scalfani, Deborah) (Entered: 04/28/2015)
216 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/28/2015)
217 Response by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins to 211 Status Report, . (Hildebrand, Regan) (Entered: 05/01/2015)
218 MOTION for Leave to File Reply to Defendants' Response to Plaintiffs' Status Report by Mark Anthony Reid. (Attachments: # 1 Proposed Reply)(Wishnie, Michael) (Entered: 05/11/2015)
219 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 218 Motion for Leave to File Reply; ALLOWED Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 05/12/2015)
220 Plaintiff's Reply/ Response by Mark Anthony Reid to 217 Response, . (Attachments: # 1 Affidavit Declaration of Frenel Mercier, # 2 Affidavit Declaration of Conchita Cruz)(Wishnie, Michael) (Entered: 05/15/2015)
221 MOTION for Leave to File Sur−Reply to Defendants' Response to Plaintiffs' Status Report filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Perez, Elianis) Modified on 5/22/2015 to convert this document into a pending motion. (Finn, Mary). (Entered: 05/22/2015)
222 NOTICE by Mark Anthony Reid of Supplemental Declaration (Attachments: # 1 Affidavit Declaration of Pedro Andony Alvarado Aguilar)(Wishnie, Michael) (Entered: 05/26/2015)
223 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 221 Motion for Leave to File Sur−Reply to Defendants' Response to Plaintiffs' Status Report; ALLOWED. Surreply on or before June 8, 2015. So ordered. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 06/02/2015)
224 Assented to SUR−REPLY to 211 Status Report filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Perez, Elianis) Modified on 6/2/2015 to link to document 211 , not 218 .(Finn, Mary). (Entered: 06/02/2015)
225 Judge Michael A. Ponsor: ORDER entered. ORDER OF REFERRAL FOR REVIEW. Given the possible confusion, this case is hereby ordered referred for review to counsel for Petitioner in Reid v. Donelan, 13−30125−MAP. Counsel is ordered to review this case and to report to the court, in writing no later than June 26, 2015, as to counsels position with regard to whether Petitioner is a member of the Reid class. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 06/11/2015)

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06/11/2015
06/22/2015 06/23/2015
06/24/2015 06/24/2015 06/26/2015
06/26/2015 06/26/2015 06/29/2015 06/29/2015 06/30/2015 07/08/2015
07/14/2015
07/14/2015

226 Judge Michael A. Ponsor: ORDER entered. ORDER RE: STATUS CONFERENCE. Counsel are ordered to appear before this court for a status conference to take place on June 29, 2015 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. And Counsel may submit a short supplemental status report no later than June 22, 2015, informing the court of any recent developments in any of these four areas or any further matters that should be addressed at the status conference. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 06/11/2015)
227 MOTION to Continue Status Conference to June 30, 2015 and MOTION to extend time to file status report by Mark Anthony Reid.(Hallett, A.). Added an additional relief − MOTION for Extension of Time to File on 6/23/2015 (Finn, Mary). (Entered: 06/22/2015)
228 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 227 Motion to Continue Status Conference. Allowed. The Status Conference originally set for June 29, 2015, is rescheduled to June 30, 2015 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. The status report shall be filed by June 24, 2015. So ordered. (Healy, Bethaney) (Entered: 06/23/2015)
229 STATUS REPORT by Mark Anthony Reid. (Hallett, A.) (Entered: 06/24/2015)
230 STATUS REPORT by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Perez, Elianis) (Entered: 06/24/2015)
231 RESPONSE TO COURT ORDER by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins re 225 Order, . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Perez, Elianis) (Entered: 06/26/2015)
232 RESPONSE TO COURT ORDER by Mark Anthony Reid re 225 Order, . (Saraswat, Anant) (Entered: 06/26/2015)
233 DECLARATION re 225 Order, 232 Response to Court Order (Declaration of Lunar Mai in Support of Response to Court Order) by Mark Anthony Reid. (Attachments: # 1 Exhibit A)(Saraswat, Anant) (Entered: 06/26/2015)
234 Notice of correction to docket made by Court staff. Correction: 232 Response to Court Order was sealed by the clerk's office, as it contains personal indentifying information (date of birth). (Healy, Bethaney) (Entered: 06/29/2015)
235 STATUS REPORT by Mark Anthony Reid. (Attachments: # 1 Exhibit Plaintiffs' Questions, # 2 Exhibit Defendants' Responses)(Hallett, A.) (Entered: 06/29/2015)
265 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 6/30/2015. Entered on the docket late due to clerical error. (Court Reporter: Philbin and Associates, 413−733−4078.) (Healy, Bethaney) (Entered: 12/09/2015)
236 Judge Michael A. Ponsor: ORDER RE: DISCOVERY entered. As follows: For the reasons stated, the court hereby orders that Plaintiffs counsel may notice two depositions of knowledgeable representatives of the Defendants, to take place within the next sixty days. It is understood that each of these depositions will require no more than one day, or two total days of depositions. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 07/08/2015)
237 MOTION for Leave to File Student Appearance by Mark Anthony Reid. (Attachments: # 1 Appendix Law Student Certification Form, # 2 Affidavit Declaration of My Khanh Ngo. (Wishnie, Michael) Modified on 7/15/2015 to delete the memorandum that was an attachment and to docket it separatley. Memorandum in support of any motion should be docketed separately, not as an attachment to the document it is supporting. (Finn, Mary). (Entered: 07/14/2015)
238 MEMORANDUM in Support re 237 MOTION for Leave to File Student Appearance filed by Mark Anthony Reid. (Finn, Mary) (Entered: 07/15/2015)

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07/17/2015 07/30/2015 07/30/2015 08/12/2015 08/12/2015 09/03/2015 09/03/2015 09/29/2015 09/29/2015
10/14/2015
10/14/2015

239 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 237 Motion for Leave to Appear as Law Student; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 07/17/2015)
240 MOTION to Withdraw as Attorney by Mark Anthony Reid.(Izzo, Rebecca) (Entered: 07/30/2015)
241 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 240 Motion for Rebecca F. Izzo to Withdraw as Attorney for the Pltfs. (Finn, Mary) (Entered: 07/30/2015)
242 USCA Judgment as to 199 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins. Upon consideration of appellants' unopposed motion, it is hereby ordered that this appeal bevoluntarily dismissed pursuant to Fed. R. App. P. 42(b) with each party to bear its own costs.(Abaid, Kimberly) (Entered: 08/13/2015)
243 MANDATE of USCA as to 199 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins. Appeal 199 Terminated (Abaid, Kimberly) (Entered: 08/13/2015)
244 Transcript of Hearing held on June 30, 2015, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net Redaction Request due 9/24/2015. Redacted Transcript Deadline set for 10/5/2015. Release of Transcript Restriction set for 12/2/2015. (Scalfani, Deborah) (Entered: 09/03/2015)
245 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 09/03/2015)
246 First Notice of Supplemental Authorities re 211 STATUS REPORT and Memorandum of Law re 218 MOTION for Leave to File Reply to Defendants' Response to Plaintiffs' Status Report (Attachments: # 1 Exhibit Attorney General Order)(Wishnie, Michael) Modified on 9/29/2015 (Lindsay, Maurice). (Entered: 09/29/2015)
247 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, The court has this day allowed Respondents motion to dismiss in the Brown case. Accordingly, the parallel motion to dismiss filed in this case (Dkt. No. 178 ), is hereby DENIED as moot. Brown remains a class member and will enjoy the remedies recognized by the court in this class action,but no more. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 09/29/2015)
248 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, Counsel are ordered to appear before this court for a further status conference to take place on December 3, 2015, at 2 p.m. At this conference the court will take up, at a minimum, three issues: compliance with the courts order requiring notification to class counsel of upcoming bond hearings, the progress of discovery, and progress in confirming identification of class members. Status reports regarding these issues, or any others counsel propose to address, will be filed on or before November 20, 2015. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 10/15/2015)
249 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: Status Report due by 11/20/2015 and a Status Conference is set for 12/3/2015 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Lindsay, Maurice) (Entered: 10/15/2015)

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10/21/2015
10/21/2015 10/27/2015 10/27/2015 10/28/2015
10/28/2015 11/17/2015 11/18/2015 11/18/2015 11/23/2015
11/23/2015
11/25/2015
12/07/2015
12/09/2015

250 MOTION for Leave to File Student Appearances by Mark Anthony Reid. (Attachments: # 1 Appendix Law Student Certification Form of Joshua J. Nuni, # 2 Appendix Law Student Certification Form for Tiffany M. Bailey, # 3 Affidavit Declaration of Joshua J. Nuni, # 4 Affidavit Declaration of Tiffany M. Bailey)(Wishnie, Michael) (Entered: 10/21/2015)
251 MEMORANDUM in Support re 250 MOTION for Leave to File Student Appearances filed by Mark Anthony Reid. (Wishnie, Michael) (Entered: 10/21/2015)
252 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 250 Motion for Leave to Appear as Law Students; ALLOWED. (Lindsay, Maurice) (Entered: 10/27/2015)
253 Joint MOTION to Continue Status Conference to December 8, 2015 by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna.(Perez, Elianis) (Entered: 10/27/2015)
254 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 253 Motion to Continue Conference and Extend Deadline for filing of Status Report. ALLOWED. The Status Report shall be filed by November 25, 2015. The Status Conference (originally set for December 3, 2015) is rescheduled for December 8, 2015 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 10/28/2015)
255 Set/Reset Deadlines: Status Report due by 11/25/2015, (Finn, Mary) (Entered: 10/28/2015)
256 MOTION to Seal by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order)(Wishnie, Michael) (Entered: 11/17/2015)
257 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 256 Unoposed Motion to Seal. ALLOWED. See order. (Lindsay, Maurice) (Entered: 11/18/2015)
258 Judge Michael A. Ponsor: ORDER entered. ORDER granting 256 Motion to seal.(Lindsay, Maurice) (Entered: 11/18/2015)
259 First MOTION to Compel Defendants to Complete ICE 30(b)(6) Deposition by Mark Anthony Reid. (Wishnie, Michael) Modified on 11/24/2015 to delete the memorandum and exhibits which were attachments and to docket it separately. Memorandum in support of any document should be dockted separately, not as an attachment to the document it is supporting. (Finn, Mary). (Entered: 11/23/2015)
260 MEMORANDUM OF LAW by Mark Anthony Reid in support of 259 First MOTION to Compel Defendants to Complete ICE 30(b)(6) Deposition. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − ICE depo. notice, # 3 Exhibit 2 −EIOR depo. notice, # 4 Exhibit 3 − ICE depo. transcript, # 5 Exhibit 4 − EIOR Declaration)(Finn, Mary) (Entered: 11/24/2015)
261 STATUS REPORT by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit Defendants' Exhibit 1, # 2 Exhibit Defendants' Exhibit 2, # 3 Exhibit Defendants' Exhibit 3, # 4 Exhibit Defendants' Exhibit 4, # 5 Exhibit Defendants' Exhibit 5, # 6 Exhibit Defendants' Exhibit 6, # 7 Exhibit Defendants' Exhibit 7, # 8 Exhibit Defendants' Exhibit 8, # 9 Exhibit Defendants' Exhibit 9)(Hildebrand, Regan) (Entered: 11/25/2015)
263 RESPONSE to Motion re 259 First MOTION to Compel Defendants to Complete ICE 30(b)(6) Deposition filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit Defendants' Exhibit 1, # 2 Exhibit Defendants' Exhibit 2, # 3 Exhibit Defendants' Exhibit 3)(Hildebrand, Regan) (Entered: 12/07/2015)
264 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 12/8/2015 regarding First MOTION to Compel Defendants to Complete ICE 30(b)(6) Deposition (Dkt. No. 259) filed by Mark Anthony Reid.

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12/14/2015
12/15/2015 12/18/2015
12/18/2015 12/18/2015 03/08/2016 03/10/2016 03/10/2016 03/17/2016 03/21/2016 03/22/2016 03/23/2016

Arguments heard. Order to issue. (Court Reporter: Alice Moran at alice.moran@verizon.net.) (Attorneys present: Hildebrand, Ngo, Wishnie, Cruz, and Parkin) (Kaplan, Jennifer) (Entered: 12/09/2015)
267 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. The Pltf's 259 Motion to Compel is ALLOWED, to a limited degree. By 12/18/2015, Counsel for the Pltf. will clarify in writing the precise areas of proposed further inquiry. By 1/4/2016, Defts' counsel will inform Pltf's counsel of the individual or individuals competent to provide deposition testimony on the identified topics. By 2/12/2016, Pltf. will conduct the depositions for no more than a total of two hours of the individual or individuals identified as knowledgeabel by Defts. Counsel will appear for a status conf. on 3/24/2016 at 2:00 P.M. A joint status report summarizing any issues the court should be aware of in preparation for the status conf. will be submitted by 3/17/2016. (Finn, Mary) (Entered: 12/15/2015)
268 Set Deadlines/Hearings: Joint Status Report due by 3/17/2016. Status Conference set for 3/24/2016 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 12/15/2015)
269 Transcript of Status Conference held on December 8, 2015, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 1/8/2016. Redacted Transcript Deadline set for 1/18/2016. Release of Transcript Restriction set for 3/17/2016. (Scalfani, Deborah) (Entered: 12/18/2015)
270 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/18/2015)
271 NOTICE by Mark Anthony Reid re 267 Order on Motion to Compel,,, Plaintiff's Notice of Topics for Continued 30(b)(6) Deposition (Wishnie, Michael) (Entered: 12/18/2015)
272 MEMORANDUM in support of 273 MOTION for Leave to File Student Appearance by Mark Anthony Reid. (Attachments: # 1 Affidavit Declaration of Zachary Manfredi, # 2 Appendix Law Student Certification Form)(Wishnie, Michael) Modified on 3/8/2016 to correct the text to reflect the document that is being filed. (Finn, Mary). Modified on 3/10/2016 to link to document 273 . (Finn, Mary). (Entered: 03/08/2016)
273 MOTION for Leave to File Student Appearance by Mark Anthony Reid.(Wishnie, Michael) (Additional attachment(s) added on 3/10/2016: # 1 Certificate of Service) (Finn, Mary). Modified on 3/10/2016 to add the certificate of service to the entry. (Finn, Mary). (Entered: 03/10/2016)
274 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 273 Motion for Leave to have Zachary−John Manfredi appear as a :aw Student. (Finn, Mary) (Entered: 03/10/2016)
275 STATUS REPORT by Mark Anthony Reid. (Attachments: # 1 Exhibit Exhibit A− Greenbaum Deposition, # 2 Exhibit Exhibit B− Ardinger Deposition)(Wishnie, Michael) (Entered: 03/17/2016)
276 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Status Conference set for 3/31/2016 at 2:30 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 03/21/2016)
277 First MOTION to Continue Status Conference to April 7, 2016 by Mark Anthony Reid.(Wishnie, Michael) (Entered: 03/22/2016)
278 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 277 Motion to Continue the 3/31/2016 status conf. to 4/7/2016. Status Conference reset to 4/7/2016 04:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 03/23/2016)

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04/12/2016 04/13/2016
04/13/2016

279 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. The Status Conference originally set for April 7, 2016 is moved to 4/14/2016 at 3:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/12/2016)
280 OPINION of USCA as to 151 Notice of Cross Appeal filed by Mark Anthony Reid, 146 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, 108 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Steven Tompkins, Christopher Donelan. (Paine, Matthew) (Entered: 04/13/2016)
281 USCA Judgment as to 151 Notice of Cross Appeal filed by Mark Anthony Reid, 146 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, 108 Notice of Appeal,,,, filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Steven Tompkins, Christopher Donelan.

This cause came on to be heard on appeal from the United States District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The district court's judgment is affirmed in part as to Mark Anthony Reid and vacated as to the class members, and the class action matter is remanded for reconsideration of the certification order in a manner consistent with the opinion issued this day.

04/13/2016 04/14/2016
04/14/2016 04/19/2016 04/21/2016 04/21/2016 05/02/2016

(Paine, Matthew) (Entered: 04/13/2016)
282 ELECTRONIC NOTICE Canceling Hearing. The April 14, 2016 Status Conference is canceled. (Healy, Bethaney) (Entered: 04/13/2016)
283 Judge Michael A. Ponsor: ORDER entered. For the reasons stated, the court has canceled the status conference and orders as follows:1. On or before April 25, 2016, counsel will submit, either jointly or independently, a written status report setting forth the parties joint or respective positions with regard to further proceedings in this case. These further proceeding may include additional briefing on the issue of class certification, or any other initiatives in light of the First Circuits opinion. 2. Also by April 25, 2016, the parties will report to the court as to the likely impact of the First Circuits opinion upon ongoing procedures employed by Defendants in relation to members of the class as originally constituted. Once the court receives the status report or reports, a further order will issue regarding additional proceedings, as needed. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 04/14/2016)
284 Set/Reset Deadlines: Status Report due by 4/25/2016 (Lindsay, Maurice) (Entered: 04/14/2016)
285 MOTION for Extension of Time to May 2, 2016 to File Status Report by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins.(Perez, Elianis) (Entered: 04/19/2016)
286 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 285 Motion for Extension of Time to 5/2/16 to file status report. ALLOWED. (Lindsay, Maurice) (Entered: 04/21/2016)
287 Set/Reset Deadlines: Status Report due by 5/2/2016. (Finn, Mary) (Entered: 04/21/2016)
288 STATUS REPORT Defendants' Report by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit 1)(Perez, Elianis) (Entered: 05/02/2016)

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05/02/2016 06/30/2016 06/30/2016
06/30/2016 07/29/2016 07/29/2016 07/29/2016 07/29/2016 08/01/2016 08/01/2016 08/01/2016 08/01/2016 08/31/2016
09/19/2016 09/26/2016 09/27/2016 09/29/2016

289 STATUS REPORT Plaintiffs' Report by Mark Anthony Reid. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wishnie, Michael) (Entered: 05/02/2016)
290 NOTICE of Withdrawal of Appearance by A. Nicole Hallett (Hallett, A.) (Entered: 06/30/2016)
291 Assented to MOTION to Withdraw as Attorney by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Hildebrand, Regan) (Entered: 06/30/2016)
292 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 291 Motion to Withdraw as Attorney. Attorney Regan Hildebrand terminated as counsel for the Defendants/Respondents. (Finn, Mary) (Entered: 06/30/2016)
293 MOTION to Withdraw Law Student Appearance of Conchita Cruz by Mark Anthony Reid.(Wishnie, Michael) (Entered: 07/29/2016)
294 MOTION to Withdraw Law Student Appearance of Swapna Reddy by Mark Anthony Reid.(Wishnie, Michael) (Entered: 07/29/2016)
295 MOTION to Withdraw Law Student Appearance of Ruth Swift by Mark Anthony Reid.(Wishnie, Michael) (Entered: 07/29/2016)
296 MOTION to Withdraw Law Student Appearance of Tina M. Thomas by Mark Anthony Reid.(Wishnie, Michael) (Entered: 07/29/2016)
297 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 293 Motion to Withdraw Law Student Appearance of Conchita Cruz. ALLOWED. (Lindsay, Maurice) (Entered: 08/01/2016)
298 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 294 Motion to Withdraw Law Student Appearance of Swapna Reddy. ALLOWED. (Lindsay, Maurice) (Entered: 08/01/2016)
299 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 295 Motion to Withdraw Law Student Appearance of Ruth Swift. ALLOWED. (Lindsay, Maurice) (Entered: 08/01/2016)
300 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 296 Motion to Withdraw Law Student Appearance of Tina M. Thomas. ALLOWED. (Lindsay, Maurice) (Entered: 08/01/2016)
301 NOTICE by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Perez, Elianis) (Entered: 08/31/2016)
302 STATUS REPORT and Request for Status Conference by Mark Anthony Reid. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ahmad, Muneer) (Entered: 09/19/2016)
303 ELECTRONIC NOTICE of Hearing ISSUED. Status Conference set for 11/3/2016 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 09/26/2016)
304 First MOTION for Leave to Appear Pro Hac Vice for admission of Marisol Orihuela Filing fee: $ 100, receipt number 0101−6308410 by Mark Anthony Reid. (Attachments: # 1 Affidavit)(Wishnie, Michael) (Entered: 09/27/2016)
305 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 304 Motion for Leave to Appear Pro Hac Vice Added Marisol Orihuela. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Pelegano, Theresa) (Entered: 09/29/2016)

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09/29/2016 09/30/2016 11/03/2016
11/07/2016
11/17/2016 11/17/2016 12/05/2016 12/05/2016 12/05/2016 12/05/2016 12/05/2016

306 MOTION to Withdraw as Attorney by Mark Anthony Reid.(Saraswat, Anant) (Entered: 09/29/2016)
307 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 306 Motion to Withdraw as Attorney. ALLOWED. Attorney Anant K. Saraswat terminated. (Lindsay, Maurice) (Entered: 09/30/2016)
309 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 11/3/2016. Colloquy re: status of matter. Court establishes the following schedule: On or before 12/5/2016, Plaintiff class will file a motion and memorandum directed at potential problems arising from the overlap between this case and the case of Lora v. Shanahan, 804 F.3d 601 (2nd Cir. 2015). Along with the motion, counsel will submit a status report with regard to ongoing discussions to resolve difficulties being encountered by counsel in contacting detained class members. Dfts' opposition to Plfs' motion is due 1/13/17, and counsel will appear again for argument on the motion and for discussion of the contact issue on January 26, 2017 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Order to issue. (Court Reporter: Alice Moran atalice.moran@verizon.net.)(Attorneys present: Manfredi, Ahmed, Ngo, Myers, Orihuela, Perez) (Healy, Bethaney) (Entered: 11/15/2016)
308 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: On or before December 5, 2016, counsel for Plaintiff class will file a motion and memorandum directed at potential problems arising from the overlap between this case and the case of Lora v. Shanahan, 804 F.3d 601 (2nd Cir. 2015). Along with the motion, counsel will submit a status report with regard to ongoing discussions to resolve difficulties being encountered by counsel in contacting detained class members. Dfts opposition to Plfs motion due 1/13/17, and Counsel will appear again for argument on the motion and for discussion of the contact issue on January 26, 2017 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 11/07/2016)
310 Transcript of Status Conference held on November 3, 2016, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 12/8/2016. Redacted Transcript Deadline set for 12/19/2016. Release of Transcript Restriction set for 2/15/2017. (Scalfani, Deborah) (Entered: 11/17/2016)
311 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 11/17/2016)
312 NOTICE of Appearance by Anant K. Saraswat on behalf of Mark Anthony Reid (Saraswat, Anant) (Entered: 12/05/2016)
313 MOTION to Withdraw as Attorney (Unopposed) by Mark Anthony Reid.(Fleming, Mark) (Entered: 12/05/2016)
314 First MOTION to Modify Injunction by Mark Anthony Reid.(Ahmad, Muneer) (Entered: 12/05/2016)
315 First MEMORANDUM in Support re 314 First MOTION to Modify Injunction filed by Mark Anthony Reid. (Attachments: # 1 Exhibit A − Declaration of Ruben Loyo, # 2 Exhibit B − Declaration of Elyssa Williams, # 3 Exhibit C − Declaration of Wayne Sachs, # 4 Exhibit 1 − IJ Order, # 5 Exhibit 2 − IJ Bond Memorandum, # 6 Exhibit 3 − Transcript, # 7 Exhibit 4 − BIA Decision)(Ahmad, Muneer) (Entered: 12/05/2016)
316 STATUS REPORT Re: Access to Counsel and Notification by Mark Anthony Reid. (Attachments: # 1 Exhibit A − Declaration of My Khanh Ngo, # 2 Exhibit B − Declaration of Joseph Meyers, # 3 Exhibit C − Declaration of David Chen, # 4 Exhibit 1 − Meyers Securus Call Summary, # 5 Exhibit 2 − Plaintiffs' Email 09.16.2016, # 6 Exhibit 3 − Plaintiffs' Email 06.10.2016, # 7 Exhibit 4 − Plaintiffs' Email 03.14.2016, # 8 Exhibit 5 − Transcript, # 9 Exhibit 6 − Plaintiffs' Email 12.02.2016, # 10 Exhibit 7 − Plaintiffs' Questions, # 11 Exhibit 8 − Plaintiffs' Email 10.31.2016, # 12 Exhibit 9 − Plaintiffs' Email 11.22.2016, # 13 Exhibit 10 − Defendants' Response 11.22.2016, # 14

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12/06/2016 12/06/2016 12/15/2016 12/16/2016 01/03/2017 01/05/2017 01/05/2017 01/13/2017
01/18/2017 01/19/2017 01/25/2017
01/31/2017
01/31/2017
02/10/2017

Exhibit 11 − Plaintiffs' Email 11.28.2016, # 15 Exhibit 12 − Defendants' Response 11.24.2016, # 16 Exhibit 13 − Defendants' Response 11.29.2016, # 17 Exhibit 14 − Defendants' Response 12.05.2016)(Ahmad, Muneer) (Entered: 12/05/2016)
317 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting Petitioner's 313 Unopposed Motion for Mark C. Fleming to Withdraw as Attorney. Attorney Mark C. Fleming terminated. (Healy, Bethaney) (Entered: 12/06/2016)
318 ELECTRONIC NOTICE Setting Hearing on 314 First MOTION to Modify Injunction. Motion Hearing moved to 1/26/2017 at 11:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 12/06/2016)
319 MOTION to Seal Document by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order Text of Proposed Order)(Ahmad, Muneer) (Entered: 12/15/2016)
320 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 319 Motion to Seal Document. (Healy, Bethaney) (Entered: 12/16/2016)
322 Assented to MOTION Reset Status Conference by Mark Anthony Reid.(Ahmad, Muneer) (Entered: 01/03/2017)
323 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 322 Motion to Reschedule the Status Conference. Allowed. The Status Conference originally set for January 26, 2017 is moved to January 25, 2017, at 3:00 p.m. (Healy, Bethaney) (Entered: 01/05/2017)
324 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. Status Conference set for 1/25/2017 at 3:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 01/05/2017)
325 Opposition re 314 First MOTION to Modify Injunction filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit 1)(Perez, Elianis) (Entered: 01/13/2017)
326 MOTION for Leave to File Motion for Leave to Appear as Law Student by Mark Anthony Reid. (Attachments: # 1 Affidavit Law Student Certification Form, # 2 Affidavit Declaration of Joseph Meyers)(Ahmad, Muneer) (Entered: 01/18/2017)
327 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 326 Motion for Leave to Appear as Law Student; ALLOWED. (Lindsay, Maurice) Modified on 1/24/2017 (Lindsay, Maurice). (Entered: 01/24/2017)
332 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 1/25/2017. Colloquy re: status of case. Schedule established: Plaintiffs' Motion re: access and Defendants' motion to decertify class due by 2/10/17; oppositions by 3/3/2017; hearing date to be set. (Court Reporter: Alice Moran atalice.moran@verizon.net.)(Attorneys present: Ahmad, Orihuela, Meyers, Jain, Ngo, Manfredi, Kane, Perez, Tregerman) (Healy, Bethaney) (Entered: 02/16/2017)
328 Transcript of Status Conference held on January 25, 2017, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 2/21/2017. Redacted Transcript Deadline set for 3/3/2017. Release of Transcript Restriction set for 5/1/2017. (Scalfani, Deborah) (Entered: 01/31/2017)
329 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/31/2017)
330 MOTION to Decertify Class by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A

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02/10/2017 02/27/2017
02/28/2017 02/28/2017 03/01/2017 03/02/2017
03/10/2017
03/10/2017 03/22/2017
03/22/2017 03/23/2017

Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Exhibit 1 − Order Staying Case)(Perez, Elianis) Modified on 2/28/2017 (Healy, Bethaney). (Entered: 02/10/2017)
331 MOTION for Discovery by Mark Anthony Reid. (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Exhibit A, # 3 Text of Proposed Order, # 4 Certificate of Service)(Ahmad, Muneer) (Entered: 02/10/2017)
333 Assented to MOTION for Extension of Time to File Response/Reply as to 330 MOTION to Modify ECF No. 92 MOTION TO DECERTIFY CLASS, 331 MOTION for Discovery by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins.(Perez, Elianis) (Entered: 02/27/2017)
334 ELECTRONIC NOTICE Setting Hearing on 330 MOTION to Modify ECF No. 92 MOTION to Decertify Class, 314 First MOTION to Modify Injunction, 331 MOTION for Discovery. Motion Hearing set for 3/23/2017 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 02/28/2017)
335 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 333 Motion for Extension of Time to File Response/Reply re 330 MOTION to Decertify Class, 331 MOTION for Discovery. Responses due by 3/10/2017. (Healy, Bethaney) (Entered: 02/28/2017)
336 MOTION for Leave to File Motion for Leave to Appear as Law Student by Mark Anthony Reid. (Attachments: # 1 Declaration of Amit Jain, # 2 Law Student Certification Form, # 3 Certificate of Service)(Ahmad, Muneer) (Entered: 03/01/2017)
337 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 336 Motion for Leave to Appear as Law Student; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 03/02/2017)
338 Opposition re 331 MOTION for Discovery filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Perez, Elianis) (Entered: 03/10/2017)
339 Opposition re 330 MOTION to Modify ECF No. 92 MOTION TO DECERTIFY CLASS filed by Mark Anthony Reid. (Ahmad, Muneer) (Entered: 03/10/2017)
340 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, because no modification of the courts injunction and class order is necessary to ensure that immigration detainees whose bond hearings are conducted in Hartford receive the full protection of the Second Circuits Lora opinion, Plaintiffs Motion to Modify Injunction (Dkt. No. 314 ) is hereby DENIED. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 03/22/2017)
341 Notice of Supplemental Authorities re 331 MOTION for Discovery filed by Mark Anthony Reid. (Attachments: # 1 Affidavit Declaration of Clare Kane)(Ahmad, Muneer) (Entered: 03/22/2017)
342 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 3/23/2017 regarding Defendants' Motion to Decertify the Class (Dkt. No. 330) and Plaintiff's Motion for Discovery (Dkt. No. 331). Court indicated intention to deny both motions without prejudice. Counsel agree to submit a status report within ten (10) days of the Supreme Court's decision in Jennings v. Rodriguez, No. 15−1204. (Court Reporter: Sarah Mubarek at sarahmubarek@comcast.net, 413−733−4078.) (Attorneys present: Perez, Orihuela, Ahmad, Meyers, Manfredi, Kane, Ngo, Jain) (Kaplan, Jennifer) (Entered: 03/23/2017)

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03/23/2017 03/23/2017 04/02/2017 04/07/2017 04/13/2017
04/13/2017
01/02/2018 02/27/2018 04/16/2018 05/07/2018 05/08/2018 05/09/2018 05/11/2018

343 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Defendants' Motion to Decertify the Class (Dkt. No. 330) is DENIED, for the reasons stated in open court. So ordered. (Kaplan, Jennifer) (Entered: 03/23/2017)
344 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Plaintiff's Motion for Discovery (Dkt. No. 331) is DENIED, for the reasons stated in open court. So ordered. (Kaplan, Jennifer) (Entered: 03/23/2017)
345 MOTION for Order to Order that law student interns may visit current and potential members of the Plaintiff Class without the presence of a supervising attorney by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order)(Ahmad, Muneer) (Entered: 04/02/2017)
346 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 345 Assented to Motion for Order that law student interns may visit current and potential members of the Plaintiff Class without the presence of a supervising attorney. ALLOWED and So ordered. (Lindsay, Maurice) (Entered: 04/07/2017)
347 Transcript of Motion Hearing held on March 23, 2017, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net Redaction Request due 5/4/2017. Redacted Transcript Deadline set for 5/15/2017. Release of Transcript Restriction set for 7/12/2017. (Scalfani, Deborah) (Entered: 04/13/2017)
348 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/13/2017)
349 Case Appealed to Supreme Court of the United States, Case Number 17−923. (Paine, Matthew) (Entered: 01/09/2018)
350 NOTICE by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Attachments: # 1 Exhibit 1, Opinion)(Perez, Elianis) (Entered: 02/27/2018)
351 Order entered from the U.S. Supreme Court. The Petition for a Writ of Certiorari is Denied. (Paine, Matthew) (Entered: 04/19/2018)
352 STATUS REPORT AND REQUEST FOR STATUS CONFERENCE by Mark Anthony Reid. (Wishnie, Michael) (Entered: 05/07/2018)
353 ELECTRONIC NOTICE of Hearing ISSUED. Status Conference set for 5/22/2018 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 05/08/2018)
354 MOTION for Order to Grant Leave to Appear as Supervising Attorney by Mark Anthony Reid. (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Declaration of Marisol Orihuela)(Orihuela, Marisol) (Entered: 05/09/2018)
355 USCA Judgment as to 151 Notice of Cross Appeal filed by Mark Anthony Reid, 146 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, 108 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Steven Tompkins, Christopher Donelan.

JUDGMENT entered by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Norman H. Stahl, Appellate Judge: In light of the Supreme Court's opinion in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), we withdraw our opinion of April 13, 2016 and vacate the judgment of the same date. The district court's judgment is affirmed in part as to Mark Anthony Reid and vacated as to the class members, and the class action matter is remanded for reconsideration of the certification order.

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05/14/2018

(Paine, Matthew) (Entered: 05/11/2018)
356 ORDER of USCA as to 151 Notice of Cross Appeal filed by Mark Anthony Reid, 146 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, 108 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Steven Tompkins, Christopher Donelan.

ORDER entered by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge; Norman H. Stahl, Appellate Judge; Sandra L. Lynch, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta, Jr., Appellate Judge denying as moot petition for panel rehearing and rehearing en banc filed by Appellee/Cross−Appellant Mark Anthony Reid. *Judge Barron is recused from these cases and did not participate in consideration of this matter.

05/16/2018 05/18/2018 05/21/2018 05/22/2018
05/24/2018
05/25/2018 05/29/2018 05/29/2018

(Paine, Matthew) (Entered: 05/14/2018)
357 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Plaintiffs' Motion for Leave to Appear as Supervising Attorney (Dkt. No. 354) is hereby ALLOWED. (Kaplan, Jennifer) (Entered: 05/16/2018)
358 MOTION for Leave to File Motion to Appear as Law Student by Mark Anthony Reid. (Attachments: # 1 Law Student Certification Form, # 2 Declaration of Regina Wang, # 3 Certificate of Service)(Orihuela, Marisol) (Entered: 05/18/2018)
359 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Plaintiff's Motion for Leave to Appear as Law Student (Dkt. No. 358) is hereby ALLOWED. (Kaplan, Jennifer) (Entered: 05/21/2018)
360 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 5/22/2018. Status report due from Defendants by 5/25/2018. Briefing schedule set: opening motions and supporting memoranda to be filed by 6/19/2018; oppositions to be filed by 7/13/2018; and replies to be filed by 7/27/2018. Hearing on the motions will be scheduled in mid September. Order to issue. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).) (Attorneys present: Perez, Wishnie, Orihuela, Wang, Kane, Meyers) (Kaplan, Jennifer) (Entered: 05/22/2018)
361 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: For the reasons stated, Defendants will submit a status report by May 25, 2018, Motions and supporting memoranda by the parties will be filed by 6/19/2018, opposition by 7/13/18, replies by 7/27/18 Oral argument on these motions will be set for mid September, either before the undersigned or before a new judge following transfer. It is So Ordered. See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 05/24/2018)
362 STATUS REPORT by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Perez, Elianis) (Entered: 05/25/2018)
363 Transcript of Hearing held on May 22, 2018, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net Redaction Request due 6/19/2018. Redacted Transcript Deadline set for 6/29/2018. Release of Transcript Restriction set for 8/27/2018. (Scalfani, Deborah) (Entered: 05/29/2018)
364 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/29/2018)

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05/30/2018 06/12/2018 06/13/2018 06/13/2018 06/15/2018 06/15/2018
06/18/2018
06/18/2018 06/18/2018 06/19/2018
06/21/2018
06/22/2018 06/26/2018
06/26/2018 06/26/2018 06/26/2018 06/26/2018

365 Judge Michael A. Ponsor: ELECTRONIC ORDER REASSIGNING CASE. The Case is reassigned to Chief Judge Patti B. Saris for all further proceedings. Judge Michael A. Ponsor no longer assigned to case. (Healy, Bethaney) (Entered: 05/30/2018)
366 MOTION to Seal Document by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order)(Orihuela, Marisol) (Entered: 06/12/2018)
367 AFFIDAVIT in Support re 366 MOTION to Seal Document . (Attachments: # 1 Certificate of Service)(Orihuela, Marisol) (Entered: 06/13/2018)
368 MOTION for Leave to File Excess Pages by Mark Anthony Reid.(Orihuela, Marisol) (Entered: 06/13/2018)
369 Assented to MOTION for Extension of Time to June 26, 2018; July 20, 2018; August 3, 2018 to file opening motions and memoranda, file oppositions, file replies, respectively by Mark Anthony Reid.(Orihuela, Marisol) (Entered: 06/15/2018)
370 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 368 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Coppola, Katelyn) (Coppola, Katelyn). (Entered: 06/15/2018)
371 Chief Judge Patti B. Saris: ORDER entered " Allowed " re 369 Assented to MOTION for Extension of Time to June 26, 2018; July 20, 2018; August 3, 2018 to file opening motions and memoranda, file oppositions, file replies, respectively (Coppola, Katelyn) (Entered: 06/18/2018)
372 RESET SCHEDULING OR DEADLINES: Opening Motions due by 6/26/2018, Oppositions due by 7/20/2018, Replies due by 8/3/2018. (Coppola, Katelyn) (Entered: 06/18/2018)
373 Chief Judge Patti B. Saris: ORDER entered " Allowed " re 366 Motion to Seal Document (Coppola, Katelyn) (Entered: 06/19/2018)
374 NOTICE of Appearance by Janette L. Allen on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Allen, Janette) (Entered: 06/19/2018)
375 NOTICE of Appearance by Lauren E. Fascett on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna (Fascett, Lauren) (Entered: 06/21/2018)
376 ( Sealed ) COPY OF Removal Proceedings Decisions ( Part 1 ) by Mark Anthony Reid. (Attachments: # 1 Copy of Removal Proceedings ( Part 2 ) )(Geraldino−Karasek, Clarilde) (Entered: 06/22/2018)
377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class,,, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna. (Attachments: # 1 Memorandum ISO Motion)(Perez, Elianis) Modified on 6/27/2018, attachment deleted and added as separate entry 388 (Coppola, Katelyn). (Entered: 06/26/2018)
378 MOTION to Modify Class Definition by Mark Anthony Reid.(Saraswat, Anant) (Entered: 06/26/2018)
379 MEMORANDUM in Support re 378 MOTION to Modify Class Definition filed by Mark Anthony Reid. (Saraswat, Anant) (Entered: 06/26/2018)
380 DECLARATION re 378 MOTION to Modify Class Definition OF ANANT SARASWAT by Mark Anthony Reid. (Attachments: # 1 Exhibit A)(Saraswat, Anant) (Entered: 06/26/2018)
381 DECLARATION re 378 MOTION to Modify Class Definition OF SANGYEOB KIM by Mark Anthony Reid. (Attachments: # 1 Exhibit 1)(Saraswat, Anant) (Entered:

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06/26/2018 06/26/2018 06/26/2018 06/26/2018 06/26/2018 06/26/2018
06/26/2018
06/27/2018

06/26/2018)
382 DECLARATION re 378 MOTION to Modify Class Definition LEO FELIX CHARLES by Mark Anthony Reid. (Saraswat, Anant) (Entered: 06/26/2018)
383 DECLARATION re 378 MOTION to Modify Class Definition OF ROBERT WILLIAMS by Mark Anthony Reid. (Saraswat, Anant) (Entered: 06/26/2018)
384 First MOTION to Amend Complaint by Mark Anthony Reid. (Attachments: # 1 Proposed Amended Complaint)(Tan, Michael) (Entered: 06/26/2018)
385 First MOTION Waiver of Local Rule 15.1(b) by Mark Anthony Reid.(Tan, Michael) (Entered: 06/26/2018)
386 Supplemental MOTION for Summary Judgment by Mark Anthony Reid.(Wishnie, Michael) (Entered: 06/26/2018)
387 MEMORANDUM in Support re 386 Supplemental MOTION for Summary Judgment filed by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order, # 2 Supplement Supplemental Statement of Undisputed Facts, # 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)(Wishnie, Michael) (Entered: 06/26/2018)
388 MEMORANDUM in Support re 377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class, filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna. (Coppola, Katelyn) (Entered: 06/27/2018)
389 ELECTRONIC NOTICE issued requesting courtesy copy for 387 Memorandum in Support of Motion.

07/03/2018
07/05/2018 07/11/2018
07/11/2018 07/11/2018 07/11/2018

Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Coppola, Katelyn) (Entered: 06/27/2018)
390 MANDATE of USCA as to 151 Notice of Cross Appeal filed by Mark Anthony Reid, 146 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, 108 Notice of Appeal filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Steven Tompkins, Christopher Donelan. Appeal 108 , 151 , 146 Terminated (Paine, Matthew) (Entered: 07/05/2018)
391 CERTIFICATE of Compliance pursuant to Local Rule 15.1(b) by Mark Anthony Reid. (Orihuela, Marisol) (Entered: 07/05/2018)
392 Respondents' Opposed MOTION to Stay re 386 Supplemental MOTION for Summary Judgment , 387 Memorandum in Support of Motion, by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins.(Perez, Elianis) Modified on 7/11/2018 (Figueroa, Tamara). (Entered: 07/11/2018)
393 NOTICE of Appearance by Catherine M. Reno on behalf of Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins (Reno, Catherine) (Entered: 07/11/2018)
394 MOTION to Intervene and for Leave to file electronically Pro Se by John A Hawkinson ( Responses due by 7/25/2018). (Coppola, Katelyn) (Entered: 07/11/2018)
395 MOTION for an ORDER to PERMIT REMOTE ACCESS TO ELECTRONIC COURT FILINGS ("OPEN THE DOCKET") by John A. Hawkinson. (Coppola, Katelyn) (Entered: 07/11/2018)

Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 47 of 55

07/11/2018 07/13/2018 07/20/2018 07/20/2018 07/20/2018
07/20/2018
08/01/2018

396 MEMORANDUM in Support re 395 MOTION FOR AN ORDER TO PERMIT REMOTE ACCESS TO ELECTRONIC COURT FILINGS ("OPEN THE DOCKET"). (Coppola, Katelyn) (Entered: 07/11/2018)
397 Opposition re 392 MOTION to Stay re 386 Supplemental MOTION for Summary Judgment , 387 Memorandum in Support of Motion, filed by Mark Anthony Reid. (Orihuela, Marisol) (Entered: 07/13/2018)
398 Opposition re 385 First MOTION Waiver of Local Rule 15.1(b) filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna. (Fascett, Lauren) (Entered: 07/20/2018)
399 Opposition re 377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class,,, filed by Mark Anthony Reid. (Orihuela, Marisol) (Entered: 07/20/2018)
400 MEMORANDUM in Opposition re 378 MOTION to Modify Class Definition filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Allen, Janette) (Entered: 07/20/2018)
401 MEMORANDUM in Opposition re 384 First MOTION to Amend Complaint filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Reno, Catherine) (Entered: 07/20/2018)
407 Chief Judge Patti B. Saris: ORDER entered " Allowed "re 394 Motion to Intervene; granting 394 Motion for leave to electronically file Pro Se.

The court grants permission on the condition that the plaintiff satisfies all applicable training and other requirements for pro se litigants as stated in the CM/ECF Administrative Procedures, Page 5. The plaintiff is directed to complete the registration form accessible at https://public.mad.uscourts.gov/ecfreg.html

08/01/2018 08/03/2018
08/03/2018 08/03/2018 08/03/2018 08/08/2018

(Coppola, Katelyn) (Entered: 08/10/2018)
408 Chief Judge Patti B. Saris: ORDER entered " Allowed "re 395 Motion for an ORDER to PERMIT REMOTE ACCESS TO ELECTRONIC COURT FILINGS ("OPEN THE DOCKET") (Coppola, Katelyn) (Entered: 08/10/2018)
402 REPLY to Response to 377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class,,, filed by Christopher Donelan, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, David A Lanoie, Joseph McDonald, John Morton, Janet Napolitano, Juan Osuna, Steven Tompkins. (Reno, Catherine) (Entered: 08/03/2018)
403 REPLY to Response to 384 First MOTION to Amend Complaint filed by Mark Anthony Reid. (Orihuela, Marisol) (Entered: 08/03/2018)
404 REPLY to Response to 385 First MOTION Waiver of Local Rule 15.1(b) filed by Mark Anthony Reid. (Orihuela, Marisol) (Entered: 08/03/2018)
405 REPLY to Response to 378 MOTION to Modify Class Definition filed by Mark Anthony Reid. (Saraswat, Anant) (Entered: 08/03/2018)
406 ELECTRONIC NOTICE Setting Hearing on Motion 378 MOTION to Modify Class Definition, 384 First MOTION to Amend Complaint, 392 MOTION to Stay, 387 Memorandum in Support of Motion, 385 First MOTION Waiver of Local Rule 15.1(b), 377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class:

MOTIONS 379 , 378 , 384 , 392 , 387 , 385 , 377 : SET FOR 9/17/2018 09:30 AM in Courtroom 19 before Chief Judge Patti B. Saris.

NOTE: Summary Judgment Motions will NOT be addressed at this hearing: (Geraldino−Karasek, Clarilde) (Entered: 08/08/2018)

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09/04/2018 09/05/2018 09/16/2018
09/17/2018
09/20/2018 09/20/2018 10/17/2018 10/23/2018

409 MOTION for Leave to Appear as Law Students by Mark Anthony Reid. (Attachments: # 1 Memorandum in support, # 2 Drake Law Student Certification, # 3 Kane Law Student Certification, # 4 Qureshi Law Student Certification, # 5 Drake Declaration, # 6 Kane Declaration, # 7 Qureshi Declaration)(Orihuela, Marisol) Modified docket text on 9/5/2018 to properly reflect document filed (Coppola, Katelyn). (Entered: 09/04/2018)
410 Chief Judge Patti B. Saris: ORDER entered " Allowed " re 409 Motion For Leave to Appear as Law Students (Coppola, Katelyn) (Entered: 09/06/2018)
411 ELECTRONIC NOTICE Resetting ****TIME ONLY FROM 9:30AM TO 2:00PM**** ON MONDAY 9/17/18 ..... Hearing on Motion 378 MOTION to Modify Class Definition , 384 First MOTION to Amend Complaint, 392 MOTION to Stay re 386 Supplemental MOTION for Summary Judgment , 387 Memorandum in Support of Motion, , 385 First MOTION Waiver of Local Rule 15.1(b) , 377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class,,, ..... Motion Hearing will go forward on MONDAY 9/17/2018 AT 02:00 PM in Courtroom 19 before Chief Judge Patti B. Saris. (we apologize for the inconvenience but due to a conflict the Court had to reset the time for the motion hearing from 9:30am to 2:00pm) (Molloy, Maryellen) (Entered: 09/16/2018)
412 Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Motion Hearing held on 9/17/2018 re 378 MOTION to Modify Class Definition filed by Mark Anthony Reid, 385 First MOTION Waiver of Local Rule 15.1(b) filed by Mark Anthony Reid, 384 First MOTION to Amend Complaint filed by Mark Anthony Reid, 392 MOTION to Stay re 386 Supplemental MOTION for Summary Judgment , 387 Memorandum in Support of Motion, filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, 377 MOTION To Decertify the Class re 92 Order on Motion to Certify Class,,, filed by John Morton, Janet Napolitano, Thomas Hodgson, Juan Osuna, David A Lanoie, Eric Holder, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan....All matters taken under advisement. ORDERED: Parties to submit Joint Status Report by 10/17/18, court adjourned. (Court Reporter: Lee Marzilli at leemarz@aol.com.)(Attorneys present: see transcript − several attys) (Molloy, Maryellen) (Entered: 09/18/2018)
413 Transcript of Motion Hearing held on September 17, 2018, before Chief Judge Patti B. Saris. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Lee Marzilli at leemarz@aol.com Redaction Request due 10/11/2018. Redacted Transcript Deadline set for 10/22/2018. Release of Transcript Restriction set for 12/19/2018. (Scalfani, Deborah) (Entered: 09/20/2018)
414 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 09/20/2018)
415 STATUS REPORT Joint Status Report by Christopher Donelan. (Attachments: # 1 Exhibit Defendants' Declaration and Appendix, # 2 Exhibit Defendants' Statutory Summary, # 3 Exhibit Defendants' Case List, # 4 Exhibit Defendants' Copy of Ps' Letter re Discovery, # 5 Exhibit Plaintiffs' Letter)(Fascett, Lauren) (Entered: 10/17/2018)
416 Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered.

" Plaintiffs motions to amend the complaint (Docket No. 384) and modify the class definition (Docket No. 378) are ALLOWED. The Governments motion to decertify the class (Docket No. 377) is DENIED. The Court thus certifies the following class: All individuals who are or will be detained within the Commonwealth of Massachusetts or the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond or reasonableness hearing. " (Coppola, Katelyn) (Entered: 10/23/2018)

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10/23/2018 10/23/2018 10/23/2018 10/23/2018

417 Chief Judge Patti B. Saris: ENDORSED ORDER entered " Allowed " re 385 First MOTION Waiver of Local Rule 15.1(b) (Coppola, Katelyn) (Entered: 10/23/2018)
418 Chief Judge Patti B. Saris: ENDORSED ORDER entered " The motion for Summary Judgment is DENIED without prejudice to renewal after a brief opportunity for discovery " re 386 Supplemental MOTION for Summary Judgment (Coppola, Katelyn) (Entered: 10/23/2018)
419 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered " Denied as Moot " denying 392 Respondents' Opposed MOTION to Stay re 386 Supplemental MOTION for Summary Judgment, 387 Memorandum in Support of Motion (Coppola, Katelyn) (Entered: 10/23/2018)
420 Chief Judge Patti B. Saris: ORDER entered. " The parties may conduct limited discovery related to the average and median detention times for aliens subject to 8 U.S.C. 1226(c). Discovery shall be complete by March 15 any motion for summary judgment shall be filed by March 30, and any opposition by April 30 " re 415 STATUS REPORT Joint Status Report, filed by Christopher Donelan,

10/24/2018
11/05/2018 11/06/2018
11/20/2018 11/20/2018 11/23/2018 11/27/2018 12/07/2018 12/07/2018

Discovery to be completed by 3/15/2019, Summary Judgment Motions due by 3/30/2019, Oppositions due by 4/30/2019(Coppola, Katelyn) (Entered: 10/23/2018)
421 AMENDED COMPLAINT and Petition for Writ of Habeas Corpus against Christopher Donelan, Steven Tompkins, Executive Office for Immigration Review, Thomas Hodgson, Joseph McDonald, Rebecca J Adducci, David Dubois, Christopher Brackett, Thomas D. Homan, Lori Streeter, James McHenry, Kirstjen M. Nielsen, Jefferson B Sessions, III, filed by Mark Anthony Reid.(Orihuela, Marisol) (Entered: 10/24/2018)
422 Summons Issued as to Christopher Brackett, David Dubois. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Coppola, Katelyn) (Entered: 11/05/2018)
423 ANSWER to 421 Amended Complaint, by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins.(Reno, Catherine) (Entered: 11/06/2018)
424 Notice of Service of Process filed by Mark Anthony Reid. Individual(s)/Entities served: Christopher Brackett, David Dubois. (Attachments: # 1 Service of Process Receipts)(Wishnie, Michael) (Entered: 11/20/2018)
425 Notice of correction to docket made by Court staff. Attachment #1 (Dkt.424) was restricted because it contains personal identifying information which is not permitted pursuant to the Court's General Order 09−1 regarding the E−Government Act and Personal Identifiers. (Figueroa, Tamara) (Entered: 11/20/2018)
426 MOTION for Order to Set Briefing Schedule by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order to Set Briefing Schedule)(Wishnie, Michael) (Entered: 11/23/2018)
427 CERTIFICATE OF CONSULTATION pursuant to LR 7.1 re 426 MOTION for Order to Set Briefing Schedule by Michael J. Wishnie on behalf of Mark Anthony Reid. (Wishnie, Michael) (Entered: 11/27/2018)
428 Opposition re 426 MOTION for Order to Set Briefing Schedule filed by Christopher Donelan, David Dubois, Executive Office for Immigration Review. (Fascett, Lauren) (Entered: 12/07/2018)
429 Chief Judge Patti B. Saris: ENDORSED ORDER entered " ALLOWED. Plaintiff may file a motion at any time. The Government will have 30 days to oppose " re 426 MOTION for Order to Set Briefing Schedule (Geraldino−Karasek, Clarilde) (Entered: 12/11/2018)

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01/16/2019
01/16/2019 01/16/2019 01/18/2019 01/18/2019 01/22/2019 01/22/2019

430 MOTION for Summary Judgment on Individual Habeas Claims by Mark Anthony Reid. (Attachments: # 1 Brief in Support of Motion for Summary Judgement, # 2 Text of Proposed Order, # 3 Supplement Statement of Undisputed Facts, # 4 Exhibit Declaration of Leo Felix Charles, # 5 Exhibit 2003 Immigration Judge Decision, # 6 Exhibit Government Motion to Reopen, # 7 Exhibit 2018 Immigration Judge Decision)(Wishnie, Michael) (Entered: 01/16/2019)
431 MOTION to Seal Summary Judgment Exhibits D and E by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Declaration in Support of Motion to Seal)(Wishnie, Michael) (Entered: 01/16/2019)
432 Notice of correction to docket made by Court staff. Exhibit #5 (Dkt.430) was restricted because it contains personal identifying information which is not permitted pursuant to the Court's General Order 09−1 regarding the E−Government Act and Personal Identifiers. (Figueroa, Tamara) (Entered: 01/18/2019)
433 NOTICE by Mark Anthony Reid re 431 MOTION to Seal Summary Judgment Exhibits D and E Notice of Non−Opposition (Wishnie, Michael) (Entered: 01/18/2019)
434 MOTION to Stay Defendants' Response to Individual Habeas Petition and the parties' discovery period by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles. (Attachments: # 1 Text of Proposed Order)(Fascett, Lauren) (Entered: 01/18/2019)
435 Opposition re 434 MOTION to Stay Defendants' Response to Individual Habeas Petition and the parties' discovery period filed by Mark Anthony Reid. (Wishnie, Michael) (Entered: 01/22/2019)
437 Chief Judge Patti B. Saris:

ENDORSED ORDER entered denying 434 Motion to Stay

01/23/2019
01/23/2019 02/05/2019 02/07/2019 02/13/2019
02/13/2019

(Lara, Miguel) (Entered: 01/24/2019)
436 MOTION for Leave to File Reply in Support of Motion to Stay by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. (Attachments: # 1 Exhibit A−Proposed Reply)(Perez, Elianis) (Entered: 01/23/2019)
438 ( SEALED ) EXHIBITS D and E in Support re 430 MOTION for Summary Judgment on Individual Habeas Claims by Mark Anthony Reid. (Attachments: # 1 Exhibit E− Sealed )(Geraldino−Karasek, Clarilde) (Entered: 02/04/2019)
439 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered finding as moot 436 Motion for Leave to File Document. (Lara, Miguel) (Entered: 02/05/2019)
440 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 431 Motion to Seal Exhibits D and E (Geraldino−Karasek, Clarilde) (Entered: 02/07/2019)
441 NOTICE of Appearance by Huy Le on behalf of Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins (Le, Huy) (Entered: 02/13/2019)
442 MOTION for Leave to File Excess Pages by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. (Attachments: # 1 Text of Proposed Order)(Le, Huy) (Entered: 02/13/2019)

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02/15/2019 02/19/2019 02/22/2019 03/12/2019
03/14/2019
03/18/2019 03/18/2019 04/08/2019 04/09/2019
04/15/2019 04/15/2019 04/15/2019 04/15/2019
04/15/2019 04/16/2019

443 Respondent's Notice of Petitioner's Release by All Defendants (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Le, Huy) (Entered: 02/15/2019)
444 Chief Judge Patti B. Saris: ORDER entered. (Lara, Miguel) (Entered: 02/20/2019)
445 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered denying as moot 430 Motion for Summary Judgment and 442 Motion for Leave to File Excess Pages. (Lara, Miguel) (Entered: 02/22/2019)
446 AMENDED ANSWER to FIRST 421 Amended Complaint, by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. (Reno, Catherine) (Entered: 03/12/2019)
447 MOTION for Extension of Time to March 22, 2019 to Close discovery and extension of time to April 15, 2019 to file motions for summary judgment and to May 15, 2019 to file oppositions to summary judgment motions by Rebecca J Adducci, Christopher Brackett, Leo Felix Charles, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Thomas Hodgson, Thomas D. Homan, Joseph McDonald, James McHenry, Kirstjen M. Nielsen, Mark Anthony Reid, Lori Streeter, Steven Tompkins, Robert Williams. (Attachments: # 1 Text of Proposed Order Proposed Order)(Wishnie, Michael) (Entered: 03/14/2019)
448 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 447 Joint Motion to Amend Scheduling Order. (Lara, Miguel) (Entered: 03/18/2019)
449 Set/Reset Scheduling Order Deadlines: Motions due by 4/15/2019 and Oppositions due by 5/15/2019. (Lara, Miguel) (Entered: 03/18/2019)
450 Joint MOTION for Leave to File Excess Pages by Mark Anthony Reid.(Wishnie, Michael) (Entered: 04/08/2019)
451 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 450 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lara, Miguel) (Entered: 04/09/2019)
452 NOTICE of Appearance by Michelle K. Nyein on behalf of Mark Anthony Reid (Nyein, Michelle) (Entered: 04/15/2019)
453 MOTION for Summary Judgment by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order)(Wishnie, Michael) (Entered: 04/15/2019)
454 MEMORANDUM in Support re 453 MOTION for Summary Judgment filed by Mark Anthony Reid. (Wishnie, Michael) Modified on to remove attachments 4/17/2019 (Lara, Miguel). (Entered: 04/15/2019)
455 MOTION for Summary Judgment by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. Modified on 4/16/2019, memoranda and exhibits were removed as not filed separately. Refer to subsequent entries for the correct filings. (Lara, Miguel). (Entered: 04/15/2019)
460 Statement of Material Facts L.R. 56.1 re 453 MOTION for Summary Judgment filed by Mark Anthony Reid. (Attachments: # 1 Declaration of David Hausman, # 2 Declaration of Clare Kane, # 3 Exhibit A, # 4 Exhibit B, # 5 Declaration of Elyssa Williams, # 6 Declaration of Leo Felix Charles)(Lara, Miguel) (Entered: 04/17/2019)
456 ELECTRONIC NOTICE Setting Hearing on Motion 455 MOTION for Summary Judgment , 453 MOTION for Summary Judgment :.... Motion Hearing set for 6/11/2019 09:30 AM in Courtroom 19 before Chief Judge Patti B. Saris. (Molloy, Maryellen) (Entered: 04/16/2019)

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04/16/2019 457 ELECTRONIC NOTICE issued requesting courtesy copy for 455 MOTION for Summary Judgment , 453 MOTION for Summary Judgment , 454 Memorandum in Support of Motion

04/16/2019 04/16/2019
04/17/2019 05/09/2019 05/09/2019 05/15/2019 05/15/2019 05/15/2019 05/15/2019
05/15/2019

Counsel who filed this document are requested to submit a courtesy copy of these documents to the Clerk's Office by 4/22/2019. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Geraldino−Karasek, Clarilde) (Entered: 04/16/2019)
458 MEMORANDUM in Support re 455 MOTION for Summary Judgment filed by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. (Reno, Catherine) (Entered: 04/16/2019)
459 Statement of Material Facts L.R. 56.1 re 455 MOTION for Summary Judgment filed by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. (Attachments: # 1 Exhibit data, # 2 Exhibit Decl. of Deportation Officer Jeffrey P. Schunder, # 3 Exhibit BIA decision, # 4 Exhibit Decl. of Deportation Officer Derek R. Moore, # 5 Exhibit Decl. of Deportation Officer Robert Sousa, # 6 Exhibit Decl. of Deportation Officer Derek R., # 7 Exhibit Brown v. Smith)(Reno, Catherine) (Entered: 04/16/2019)
461 Notice of correction to docket made by Court staff. Correction: Dkt No. 454, Memorandum in Support corrected because: Statement of Undisputed facts needs to be filed as a separate document. Counsel is reminded to review local rules and the attorney handbook when filing documents with the Court. (Lara, Miguel) (Entered: 04/17/2019)
462 Joint MOTION for Leave to File Excess Pages to Opposition Memoranda by Mark Anthony Reid. (Attachments: # 1 Text of Proposed Order Proposed Order)(Saraswat, Anant) (Entered: 05/09/2019)
463 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 462 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lara, Miguel) (Entered: 05/09/2019)
464 Opposition re 455 MOTION for Summary Judgment filed by Mark Anthony Reid. (Saraswat, Anant) (Entered: 05/15/2019)
465 DECLARATION re 464 Opposition to Motion for Summary Judgment by Mark Anthony Reid. (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, # 9 Exhibit I)(Saraswat, Anant) (Entered: 05/15/2019)
466 Statement of Material Facts L.R. 56.1 re 455 MOTION for Summary Judgment (Plaintiffs' Oppostion to Defendants' Statement of Material Facts) filed by Mark Anthony Reid. (Saraswat, Anant) (Entered: 05/15/2019)
467 DEFENDANTS' RESPONSE TO PLAINTIFFS STATEMENT OF UNDISPUTED MATERIAL FACTS Response by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins to 460 Statement of Material Facts L.R. 56.1, . (Reno, Catherine) (Entered: 05/15/2019)
468 Declaration of Deportation Officer Derek R. Moore Response by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter,

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05/15/2019
05/16/2019
05/28/2019
05/28/2019 05/30/2019 06/11/2019
06/13/2019 06/17/2019 06/18/2019
06/18/2019 06/18/2019 07/04/2019 07/09/2019

Steven Tompkins . (Reno, Catherine) (Entered: 05/15/2019)
469 MEMORANDUM in Opposition re 453 MOTION for Summary Judgment filed by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins. (Reno, Catherine) (Entered: 05/15/2019)
470 ELECTRONIC NOTICE issued requesting courtesy copy for 465 Declaration, 466 Statement of Material Facts L.R. 56.1, 469 Memorandum in Opposition to Motion, 468 Response, 464 Opposition to Motion, 467 Response. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 5/23/19. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Lara, Miguel) (Entered: 05/16/2019)
471 MOTION for Leave to File Law Student Appearances by Mark Anthony Reid. (Attachments: # 2 Exhibit Mehta Certification, # 3 Exhibit Pinkham Certification, # 4 Exhibit Rey Certification, # 5 Exhibit Tayag Certification, # 6 Exhibit Mehta Declaration, # 7 Exhibit Pinkham Declaration, # 8 Exhibit Rey Declaration, # 9 Exhibit Tayag Declaration)(Wishnie, Michael) Modified on 5/30/2019 (Lara, Miguel). (Entered: 05/28/2019)
473 MEMORANDUM in Support re 471 MOTION for Leave to File Law Student Appearances filed by Mark Anthony Reid. (Lara, Miguel) (Entered: 05/30/2019)
472 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 471 Motion for Leave to Appear as Law Students. (Lara, Miguel) (Entered: 05/30/2019)
475 Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Motion Hearing held on 6/11/2019 re (453 in 3:13−cv−30125−PBS) MOTION for Summary Judgment filed by Mark Anthony Reid...All matters taken under advisement. (Court Reporter: Lee Marzilli at leemarz@aol.com.) Associated Cases: 1:19−cv−10417−PBS, 3:13−cv−30125−PBS(Molloy, Maryellen) (Entered: 06/17/2019)
474 Notice of Supplemental Authorities re 453 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Wishnie, Michael) (Entered: 06/13/2019)
476 MOTION for Leave to File Supplemental Briefing by Mark Anthony Reid.(Wishnie, Michael) (Entered: 06/17/2019)
477 Transcript of Hearing/Motion Hearing held on June 11, 2019, before Chief Judge Patti B. Saris. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Lee Marzilli at leemarz@aol.com Redaction Request due 7/9/2019. Redacted Transcript Deadline set for 7/19/2019. Release of Transcript Restriction set for 9/16/2019. Associated Cases: 1:19−cv−10417−PBS, 3:13−cv−30125−PBS(Scalfani, Deborah) (Entered: 06/18/2019)
478 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm Associated Cases: 1:19−cv−10417−PBS, 3:13−cv−30125−PBS(Scalfani, Deborah) (Entered: 06/18/2019)
479 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered.... Denying 476 Motion for Leave to File Supplemental Briefing by Mark Anthony Reid. (Molloy, Maryellen) (Entered: 06/18/2019)
480 Notice of Supplemental Authorities re 453 MOTION for Summary Judgment (Attachments: # 1 Exhibit Padilla v. ICE, # 2 Exhibit Arroyo v. US)(Wishnie, Michael) (Entered: 07/04/2019)
481 Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered.

Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 54 of 55

ORDER

Plaintiffs' motion for summary judgment is ALLOWED IN PART and DENIED IN PART (Docket No. 453 ), and the Government's motion for summary judgment is ALLOWED IN PART and DENIED IN PART (Docket No. 455 ).The Court denies Plaintiffs' request for a permanent injunction ordering the Government to provide class members with bond or reasonableness hearings. The Court also denies Plaintiffs' request for a declaratory judgment insofar as they seek a declaration that due process requires an automatic bond hearing or reasonableness hearing for all criminal aliens detained under § 1226(c) for more than six months.

DECLARATORY JUDGMENT

The Court declares that mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) violates due process when the detention becomes unreasonably prolonged in relation to its purpose in ensuring the removal of deportable criminal aliens. The most important factor in determining the reasonableness of a criminal alien's mandatory detention is the length of the detention. Mandatory detention without a bond hearing is likely to be unreasonable if it lasts for more than one year, excluding any delays due to the alien's dilatory tactics. A criminal alien subject to mandatory detention without a bond hearing under § 1226(c) must bring a habeas petition in federal court to challenge his detention as unreasonably prolonged. If the court agrees, the alien is entitled to a bond hearing before an immigration judge.

PERMANENT INJUNCTION

For any bond hearing held for a class member, the Court orders that the immigration court require the Government to prove that the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence. The immigration court may not impose excessive bail, must evaluate the alien's ability to pay in setting bond, and must consider alternative conditions of release such as GPS monitoring that reasonably assure the safety of the community and the alien's future appearances.

The Court orders that this declaratory judgment and permanent injunction be provided to all members of the class within thirty days and shall be provided to any new members of the class when their § 1226(c) detention exceeds six months.

SO ORDERED.

08/06/2019
08/07/2019 08/08/2019 08/08/2019

(Lara, Miguel) (Entered: 07/09/2019)
482 NOTICE OF APPEAL re 481 MEMORANDUM AND ORDER by Mark Anthony Reid Filing fee: $ 505, receipt number 0101−7818285 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 8/26/2019. (Wishnie, Michael) (Modified on 8/6/2019 to Correct Docket Text and CM/ECF Document Link) (Paine, Matthew). (Entered: 08/06/2019)
483 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 482 Notice of Appeal. (Paine, Matthew) (Entered: 08/07/2019)
484 USCA Case Number 19−1787 for 482 Notice of Appeal filed by Mark Anthony Reid. (Paine, Matthew) (Entered: 08/08/2019)
485 NOTICE by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson

Case: 3:13-cv-30125-PBS As of: 03/16/2020 06:59 PM EDT 55 of 55

09/06/2019
09/09/2019 09/09/2019 10/30/2019 10/31/2019 11/06/2019 11/06/2019 11/08/2019

B Sessions, III, Lori Streeter, Steven Tompkins re 481 Memorandum & ORDER,,,,,,,,,, of Compliance with Order (Fascett, Lauren) (Entered: 08/08/2019)
486 NOTICE OF APPEAL 481 MEMORANDUM AND ORDER by Rebecca J Adducci, Christopher Brackett, Christopher Donelan, David Dubois, Executive Office for Immigration Review, Dorothy Herrera−Niles, Thomas Hodgson, Eric Holder, Thomas D. Homan, David A Lanoie, Joseph McDonald, James McHenry, John Morton, Janet Napolitano, Kirstjen M. Nielsen, Juan Osuna, Jefferson B Sessions, III, Lori Streeter, Steven Tompkins Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 9/26/2019. (Fascett, Lauren) (Modified on 9/9/2019 to Correct Docket Text and CM/ECF Document Link) (Paine, Matthew). (Entered: 09/06/2019)
487 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 486 Notice of Appeal. (Paine, Matthew) (Entered: 09/09/2019)
488 USCA Case Number 19−1900 for 486 Notice of Appeal filed by Lori Streeter, John Morton, Thomas D. Homan, Janet Napolitano, Juan Osuna, David A Lanoie, David Dubois, Dorothy Herrera−Niles, Executive Office for Immigration Review, Joseph McDonald, Christopher Donelan, Steven Tompkins, Christopher Brackett, Rebecca J Adducci, Thomas Hodgson, Eric Holder, James McHenry, Kirstjen M. Nielsen, Jefferson B Sessions, III. (Paine, Matthew) (Entered: 09/09/2019)
489 MOTION for Leave to Appear Pro Hac Vice for admission of Reena Parikh Filing fee: $ 100, receipt number 0101−7947731 by Leo Felix Charles, Mark Anthony Reid, Robert Williams. (Attachments: # 1 Affidavit of Reena Parikh)(Wishnie, Michael) (Entered: 10/30/2019)
490 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 489 Motion for Leave to Appear Pro Hac Vice Added Reena Parikh. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lara, Miguel) (Entered: 10/31/2019)
491 MOTION for Order to Grant Reena Parikh Leave to Appear as Supervising Attorney by Leo Felix Charles, Mark Anthony Reid, Robert Williams.(Parikh, Reena) (Entered: 11/06/2019)
492 MEMORANDUM in Support re 491 MOTION for Order to Grant Reena Parikh Leave to Appear as Supervising Attorney filed by Leo Felix Charles, Mark Anthony Reid, Robert Williams. (Attachments: # 1 Declaration of Reena Parikh, # 2 Local Rule 7.1 Certificate of Conferral)(Parikh, Reena) (Entered: 11/06/2019)
493 Chief Judge Patti B. Saris: ORDER entered granting 491 Motion for Leave to Appear as Supervising Attorney. (Lara, Miguel) (Entered: 11/08/2019)


[CONTENT] July 1, 2013 | Massachusetts | eight months | under 18 | the U.S. District Court | Massachusetts | the Immigration & Nationality Act | the Fifth Amendment's Due Process Clause | the Eighth Amendment's ||| Yale | Jerome N. Frank Legal Services Organization | ACLU ||| Massachusetts | the Franklin County Jail | the Department of Homeland Security | Immigration and Customs Enforcement (ICE | the Department of Justice | the Executive Office for Immigration Review | EOIR ||| District Court | Michael A. Ponsor ||| U.S. | third ||| Connecticut | twelve years | five ||| two years | November 13, 2012 ||| ICE | Jamaica ||| the Convention Against Torture ||| the Board of Immigration Appeals | second ||| December 29, 2014 | BIA ||| January 9, 2014 | the District Court | ICE ||| Court | 8 | U.S.C. ||| 991 | 275 ||| Court | six months ||| Court ||| District Court | Hartford Immigration Court ||| March 6, 2014 | the District Court | ICE | the Due Process Clause | Constitution ||| Reid ||| ICE | months | years | Massachusetts | ICE | Connecticut ||| The District Court | Massachusetts | 8 | U.S.C. | over six months ||| May 27, 2014 | the District Court ||| Court | 1 | 2 | under 8 | U.S.C. § 1226(a | Immigration Judge | 8 | 1003.19 | 3 | under 8 | U.S.C. § 1226(a | Immigration Judge | 8 | C.F.R. § 1003.19 & 1236.1(d | 4 | 5 | Court ||| the First Circuit Court of Appeals ||| April 13, 2016 | the First Circuit | the District Court's ||| Court | the District Court's | six-month ||| six-month ||| 819 | 486 ||| February 10, 2017 ||| The District Court | March 23 ||| January 2, 2018 | the U.S. Supreme Court | April 16 | the Supreme Court ||| May 11, 2018 | the Supreme Court's | Jennings | Rodriguez</i | Court | six-month | the Ninth Circuit | the First Circuit | 2016 ||| The District Court’s |||  ||| May 30, 2018 | Patti B. Saris ||| June 26, 2018 ||| October 23, 2018 | the District Court | the State of | New Hampshire | 8 | U.S.C. | over six months ||| October 24, 2018 | New Hampshire ||| January 16, 2019 ||| February ||| April 15, 2019 | the District Court ||| the same day ||| July 9, 2019 | Saris ||| 390 | 201 ||| First | under 8 | U.S.C. ||| Second | six-month ||| Third | more than one year ||| Fourth ||| fifth | GPS |||  ||| August 6, 2019 | the First Circuit ||| September 6 |||  [SUMMARY] On July 1, 2013, a lawful permanent resident held in immigration detention in Massachusetts for eight months filed a federal habeas petition under 18 U.S.C. § 2241, and a class-action complaint in the U.S. District Court for the District of Massachusetts, contending that the prolonged detention of himself and others similarly situated without an individualized bond hearing violated the Immigration & Nationality Act (INA), the Fifth Amendment's Due Process Clause, and the Eighth Amendment's Excessive Bail Clause. The plaintiff was represented by Yale's Jerome N. Frank Legal Services Organization, the ACLU, and private attorneys. The defendants included several Massachusetts sheriffs, the Franklin County Jail, the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ), and the Executive Office for Immigration Review (EOIR). District Court Judge Michael A. Ponsor was assigned to the case. 

While living in the U.S., the plaintiff had been convicted of a number of crimes, including selling an illegal drug, third degree burglary, and failure to appear. As a result of those convictions, he was sentenced in Connecticut state court to twelve years in prison, to be suspended after five. After serving two years, he was paroled on November 13, 2012. On that same day, ICE took the plaintiff into custody and immediately took action to deport him to Jamaica. In removal proceedings, the plaintiff sought relief against deportation under the Convention Against Torture, and on the ground that his removal would be disproportionate to any underlying misconduct. The Immigration Judge denied relief, and after the Board of Immigration Appeals (BIA) remanded, the Immigration Judge denied relief a second time. On December 29, 2014, the BIA found error and remanded the case once more. 

On January 9, 2014, the District Court granted the plaintiff's habeas petition and ordered ICE to provide the plaintiff with a bond hearing. The Court determined that 8 U.S.C. § 1226(c), the statute governing the detention of noncitizens who have committed certain crimes and are in removal proceedings, imposed a "reasonableness limit on the length of time an individual can be detained in immigration custody without an individual bond hearing." 991 F.Supp.2d 275. The Court held that detention beyond six months, absent an individualized assessment of flight risk or dangerousness, was presumptively unreasonable. In the alternative, the Court found that the individualized circumstances of the plaintiff's case rendered his continued detention unreasonable. 

The plaintiff also argued in District Court that he had been needlessly shackled in Hartford Immigration Court. On March 6, 2014, the District Court held that ICE's nationwide policy of shackling detainees without an individualized finding of dangerousness violates the Due Process Clause of the Constitution. However, the Judge found that the claim of Mr. Reid himself was moot because he had been released on bond as a result of his successful habeas petition. 

Finally, because ICE had repeatedly and unlawfully held detainees like the plaintiff for months or years without a bond hearing, the plaintiff had moved to represent a class of similarly situated detainees in Massachusetts (where ICE confines most Connecticut residents). The District Court granted the motion for class certification, defining the class as: all individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing.

On May 27, 2014, the District Court granted summary judgment to the plaintiff class and ordered class-wide relief. The Court held that the defendants must: (1) cease and desist subjecting all current and future class members to mandatory detention; (2) immediately determine the custody of every current class member under 8 U.S.C. § 1226(a) and timely provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. § 1003.19; (3) determine the custody of every future class member under 8 U.S.C. § 1226(a), and provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. § 1003.19 & 1236.1(d); (4) provide class counsel with a list of identified class members, including their names and alien numbers, and the facility in which they are detained; and (5) submit to the Court a report detailing custody determinations, bond hearing information, etc.

The defendants appealed to the First Circuit Court of Appeals. On April 13, 2016, the First Circuit affirmed the District Court's judgment with respect to the plaintiff, but vacated the judgment as to the class members, and remanded the class action for reconsideration of the class certification. The Court disagreed with the District Court's adoption of the six-month bright line rule regarding detention under § 1226(c), preferring instead an individualized approach. And while it agreed that in the plaintiff's particular case his prolonged detention had become unreasonable, it determined that the adoption of the six-month rule was "an essential predicate to class certification" in the case, and by removing that predicate the class's legitimacy was called into question. 819 F.3d 486. On February 10, 2017, the defendants moved to decertify the class. The District Court denied the request on March 23.

On January 2, 2018, the case was appealed to the U.S. Supreme Court, but on April 16, the Supreme Court declined to hear the case.

On May 11, 2018, in light of the Supreme Court's decision in <i>Jennings v. Rodriguez</i> (<a href="http://www.clearinghouse.net/detail.php?id=12492">summarized here</a>), where the Court reversed the six-month detention rule that had been adopted by the Ninth Circuit, the First Circuit withdrew its 2016 opinion and vacated the judgment. The District Court’s judgment as to the plaintiff was again affirmed but vacated as to the class members. The class action was remanded for reconsideration of the certification order. 

On May 30, 2018, the case was reassigned to Chief Judge Patti B. Saris. 

On June 26, 2018, the defendants again moved to decertify the class. On October 23, 2018, the District Court denied the defendants' motion to decertify the class, and certified the following class: All individuals who are or will be detained within the Commonwealth of Massachusetts or the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond or reasonableness hearing.

On October 24, 2018, the plaintiffs amended their complaint, including new class representatives and expanding the class to include detainees at an additional county jail in New Hampshire. 

On January 16, 2019, the plaintiffs moved for summary judgment on the individual habeas claims of the newly added named plaintiffs. However, this motion was denied as moot in February as those plaintiffs were no longer in detention.

On April 15, 2019, the plaintiffs filed another motion for summary judgment, this time renewing their constitutional claims, which the District Court had not reached in its prior decision. The defendants filed a cross-motion for summary judgment on the same day. 

On July 9, 2019, Judge Saris granted in part and denied in part the parties' motions. 390 F.Supp.3d 201. First, the court agreed that mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) violates due process when circumstances render the detention unreasonably prolonged in relation to its purpose (ensuring removal of criminal noncitizens). Second, it held that the determination of whether mandatory detention without a bond hearing has become unreasonably prolonged is a fact-specific analysis, rejecting the plaintiffs' request for a bright-line six-month rule. Third, it found that when such detention lasts for more than one year (excluding any delay attributable to the noncitizen), the delay is likely to be unreasonable. Fourth, it held that noncitizens subject to such detention without a bond hearing under § 1226(c) must bring a habeas petition in federal court to challenge the detention as unreasonably prolonged (if the court agrees, they are entitled to a bond hearing before an immigration judge where the government carries the burden of proving dangerousness or risk of flight). And fifth, it declared that in making release determinations, immigration courts may not impose excessive bail, must evaluate the individual's ability to pay bond, and must consider alternative conditions of release (e.g., GPS monitoring). The court issued a permanent injunction to enforce its holdings related to the burden at bond hearings and bail setting by immigration courts. 

On August 6, 2019, the plaintiffs appealed the decision to the First Circuit. The defendants filed a cross-appeal on September 6. 

The case is ongoing. 