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Innovation Law Lab v. Nielsen

United States District Court, D. Oregon

July 31, 2018

INNOVATION LAW LAB and LUIS JAVIER SANCHEZ GONZALEZ by XOCHITL RAMOS VALENCIA as next friend, Plaintiffs-Petitioners,
v.
KIRSTJEN NIELSEN, Secretary, Department of Homeland Security; THOMAS HOMAN, Acting Director, Immigration and Customs Enforcement ICE; ELIZABETH GODFREY, Acting Field Office Director, Seattle Field Office of ICE; JEFFERSON BEAUREGARD SESSIONS, III, U.S. Attorney General; HUGH J. HURWITZ, Acting Director, Federal Bureau of Prisons; JOSIAS SALAZAR, Warden, FDC Sheridan Medium Security Prison; in their official capacities only, Defendants-Respondents.

          Keith Ketterling and Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter pc. Mathew W. dos Santos, Kelly K. Simon, and Leland Baxter-Neal, ACLU Foundation of Oregon, Inc., Of Attorneys for Plaintiffs-Petitioners.

          Billy J. Williams, United States Attorney, and Dianne Schweiner, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, Chad A. Readler, Acting Assistant Attorney General; William C. Peachey, Director; Jeffrey S. Robins, Assistant Director; Anthony D. Bianco, Senior Litigation Counsel, and Ubaid ul-Haq, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Of Attorneys for Defendants-Respondents.

          Lisa Hay, Federal Public Defender; Stephen R. Sady, Chief Deputy Federal Defender, and Jessica Greenlick Snyder, Assistant Federal Public Defender, Federal Public Defender's Office for the District of Oregon, Amica Curiae.

          OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

          Michael H. Simon United States District Judge.

         Plaintiffs, Innovation Law Law (“Law Lab”) and Luis Javier Sanchez Gonzalez, by Xochitl Ramos Valencia as next friend (“Sanchez Gonzalez”), bring this action challenging certain actions taken by Defendants related to immigrant detainees held at the Federal Detention Center in Sheridan, Oregon (“FDC Sheridan”). Defendants are officials at the United States Department of Homeland Security (“DHS”), United States Immigration and Customs Enforcement (“ICE”), the Federal Bureau of Prisons (“BOP”), and the United States Department of Justice. On June 25, 2018, the Court granted Plaintiffs' motion for temporary restraining order (“TRO”), requiring Defendants to, among other things: (1) provide adequate attorney visitation and telephone access for immigrant detainees at FDC Sheridan; (2) permit Law Lab to conduct “know your rights” (“KYR”) training for detainees; and (3) not proceed with interviews, cases, or deportations until after a detainee has had a full and fair opportunity meaningfully to consult with an attorney and attend KYR training conducted by Law Lab. Plaintiffs now seek a preliminary injunction, which Defendants oppose. A hearing on Plaintiffs' motion for preliminary injunction was held on July 30, 2018. For the reasons stated below, Plaintiffs' motion for preliminary injunction is granted.

         STANDARDS

         A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20 (rejecting the Ninth Circuit's earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

         The Supreme Court's decision in Winter, however, did not disturb the Ninth Circuit's alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a temporary restraining order or a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing Cottrell).

         Finally, the already high standard for granting a preliminary injunction is further heightened when the type of injunction sought is a “mandatory injunction.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (noting that the burden is “doubly demanding” for a mandatory injunction). To obtain a mandatory injunction, a plaintiff must “establish that the law and facts clearly favor her position, not simply that she is likely to succeed.” Id. (emphasis in original). As explained by the Ninth Circuit:

A preliminary injunction can take two forms. A prohibitory injunction prohibits a party from taking action and “preserve[s] the status quo pending a determination of the action on the merits.” Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988); see also Heckler v. Lopez, 463 U.S. 1328, 1333 (1983) (a prohibitory injunction “freezes the positions of the parties until the court can hear the case on the merits”). A mandatory injunction orders a responsible party to take action. A mandatory injunction goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.
The status quo ante litem referenced in Chalk means the last, uncontested status which preceded the pending controversy.

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (quotation marks and citation omitted) (alterations in original).

         FINDINGS OF FACT

         Based on the evidence presented by the parties, the Court finds the following facts are more likely true than not:

         1. On May 31, 2018, ICE transferred 124 immigrant men to FDC Sheridan for civil detention. ECF 14-1 (Newman Decl.) ¶ 4. Approximately 121 immigrant detainees remain at that location. Id. The detainees are housed in two units, at least one of which also houses inmates of the federal prison. Id. ¶ 6. Many of the detainees have come to the United States to request asylum. See, e.g., ECF 3 (First Manning Decl.) ¶ 26; ECF 6 (Garcia Decl.) ¶ 5. Before June 25, 2018, both social and legal visits at FDC Sheridan took place each Monday through Friday from 8:30 until 11:30 a.m. for inmates and from 12:00 until 3:00 p.m. for immigrant detainees. ECF 14-1 (Newman Decl.). ¶ 8. Defendants add that they intended to provide legal visitation for all pretrial/pre-sentence and civil detainees from 8:30 a.m. until 3:00 p.m, Monday through Friday, on a “first-come, first-served” basis by June 27, 2018. Id.

         2. Plaintiff Law Lab is a nonprofit organization founded by its executive director Stephen W. Manning that advocates on behalf of noncitizens in the United States. Law Lab provides representation to noncitizens, in part, through its Oregon-based network of 125 private, pro bono attorneys who have been trained in asylum and removal defense. ECF 3 (First Manning Decl.) ¶ 2. Law Lab, through Manning, designed a pro bono representation project to facilitate access to, and legal representation of, the FDC Sheridan immigrant detainees. Manning and Law Lab have previously run two similar detention-based pro bono representation projects. ECF 49 (Second Manning Decl.) ¶ 2. One of those projects, the Dilley Pro Bono Project in South Texas, has represented more than 40, 000 noncitizens since its inception in 2015. Id. ¶ 4. Manning, in his role with Law Lab, has also collaborated with the Southern Poverty Law Center to design the model for a large-scale noncitizen representation project, and directs the Centers for Excellence-a pro bono project that provides technical and strategic assistance to noncitizens and their attorneys. Id. 2.

         3. Law Lab's pro bono representation project seeks to provide a minimum of three attorney contacts with each detainee who requests legal representation, consisting of: (1) a KYR group orientation that provides an overview of immigration relief; (2) an individualized screening with a trained advocate; and (3) an individualized client conference. Law Lab has determined that at least three know-your-rights orientations of 60 to 90 minutes duration is needed adequately to inform all interested FDC Sheridan immigrant detainees of their rights. ECF 3 (First Manning Decl.) ¶ 8. After beginning the pro bono project, approximately 900 community members, including immigration specialist attorneys, civil rights attorneys, and other legal advocates have offered to provide pr bono legal services through Law Lab. ECF 49 (Second Manning Decl.) ¶ 9. Law Lab perceives that its ability to provide representation to the immigrant detainees is limited only by the physical and temporal restrictions in place at FDC Sheridan. Id.

         4. Between June 8 and June 21, 2018, Law Lab's pro bono attorneys requested, but repeatedly were denied, access to the detained individuals for the purposes of delivering legal services. ECF 23 at 6-9; ECF 3 (First Manning Decl.) ¶ 12-17; 21-22; ECF 8 (Smith Decl.) ¶ 2-10; ECF 9 (Strautman Decl.) ¶ 3-8; ECF 7 (Philbaum Decl.) ¶ 5-10; ECF 5 (Baxter-Neal Decl.) ¶ 5; ECF 4 (Sinlapasai Decl.) ¶ 12. In that time period, approximately 50 detainees had requested representation from Law Lab. ECF 3 (First Manning Decl.) ¶ 25-27. Only one attorney had met with a client, however, and that client was thereafter transferred from FDC Sheridan to the North West Detention Center in Tacoma, 5. Plaintiff Sanchez Gonzalez is currently detained at FDC Sheridan. He is unable to file a complaint on his own due to lack of access to legal counsel. His domestic partner of ten years, Xochitl Ramos Valencia, requested pro bono legal representation from Law Lab on his behalf. Before June 25, 2018, Law Lab attorneys twice attempted to meet with Sanchez Gonzalez but were denied access both times. ECF 3 (First Manning Decl.) ¶ 33-34.

         6. On June 22, 2018, Plaintiffs filed a complaint and a motion for TRO against Defendants, alleging violations of the First and Fifth Amendments of the U.S. Constitution, the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act (“APA”). At the time Plaintiffs filed their complaint, removal proceedings for the 121 immigrant detainees at FDC Sheridan had not yet commenced. Further, none of the immigrant detainees at FDC Sheridan had been served with an administrative summons known as a “Notice to Appear, ” which is how a removal proceeding typically begins. ECF 27 (TRO Hearing Transcript) 5:20-25. Before June 25, 2018, “Credible fear” interviews for immigrant detainees seeking asylum were scheduled to begin at FDC Sheridan on June 28, 2018. ECF 14-2 (Heaton Decl.) ¶ 8.

         7. On June 25, 2018, the Court held a hearing on Plaintiffs' motion for TRO. The Court granted the motion and entered the following order:

1. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall not proceed with any asylum interview or hearing, including any “credible fear” interview or screening, for such detainee, nor shall Defendants deport or remove any that detainee, until after that detainee has had a full and fair opportunity meaningfully to: (1) attend a “know your rights” training session conducted by Law Lab; and (2) if the detainee has requested representation from a Law Lab attorney or other legal counsel, consult with that attorney.
2. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall not transfer any such detainee outside of the District of Oregon without: (1) the consent of counsel for that detainee; or (2) prior leave of the Court.
3. Defendants shall provide Law Lab's designated pro bono attorneys, or a detainee's otherwise designated counsel of choice, with access to at least two of FDC Sheridan's attorney visitation rooms for a minimum of six hours per day, seven days a week (i.e., including weekends), to perform group “know your rights” training as well as individualized interviews and consultations for the immigrant detainees at FDC Sheridan. In addition, Defendants shall make all reasonable efforts to ensure that the provided attorney visitation rooms are equipped with outside-line telephones that have speakerphone capability, to facilitate the attorney's consultation with a detainee who does not speak English by calling a telephone-accessible interpreter or interpretation service. Attorney calls may not be monitored, after Defendants are satisfied that the telephone call involves an attorney.
4. Defendants shall install at least four telephone lines in each unit where immigrant detainees are held, with each line capable of placing free direct calls to legal service providers, including to Law Lab. Defendants shall permit all immigrant detainees housed at FDC Sheridan to access these telephones during facility “awake hours, ” or between 8:00 a.m. and 8:00 p.m., whichever is longer, each day of the week, including weekends. ...

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