On Sept. 25, 2017, a group of Christian Indonesian nationals living in the United States filed this lawsuit against the U.S. Department of Homeland Security (DHS), including its component Immigration and Customs Enforcement (ICE)'s Boston and Manchester Field Offices. Represented by the private law firm Nixon Peabody, plaintiffs filed motions for a temporary restraining order, preliminary injunction, and stay of removal, in the U.S. District Court for the District of Massachusetts.

Plaintiffs alleged they were long-time residents in the United States. Despite being subject to final orders of removal for years, they had been able to remain in the country and periodically check-in under Orders of Supervision, through a voluntary ICE program called "Operation Indonesian Surrender." According to plaintiffs, ICE had recently terminated this program. In June 2017, ICE's Boston Field Office instructed plaintiffs to prepare for removal to Indonesia, instead of allowing them time to seek relief in Immigration Court. As Christians, plaintiffs feared persecution for their minority religious beliefs were they to return to Indonesia. Plaintiffs alleged that ICE's actions violated the Due Process Clause of the Fifth Amendment to the U.S. Constitution as well as the Convention Against Torture (CAT).

Chief Judge Patti B. Saris was assigned to the case. The next day, Sept. 26, Judge Saris held a hearing and then issued a temporary restraining order, enjoining the defendants from removing all named plaintiffs from the United States.

On Sept. 28, plaintiffs filed an amended class petition for writs of habeas corpus and mandamus, and an amended complaint. Plaintiffs asked for immediate relief from custody under their Orders of Supervision (absent an individualized finding of danger or flight risk), and certification of a class of similarly-situated individuals who had participated in Operation Indonesian Surrender and now risked imminent deportation. Plaintiffs amended their causes of action to include, in addition to Due Process and CAT, the Immigration and Nationality Act (INA)'s asylum provisions, the Administrative Procedures Act (APA), and the Foreign Affairs Reform and Restructuring Act (FARRA).

Defendants, at the Court's request, submitted a statement on jurisdiction on Oct. 3. They argued that under 8 U.S.C. § 1252, the District Court lacked jurisdiction over the government's decision to enforce a final removal order, and that jurisdiction lay instead with the Immigration Courts. Defendants also maintained that the District Court lacked personal jurisdiction over most of the plaintiffs, who were not in detention and some of whom did not reside in the District. (One plaintiff was detained but had filed a separate habeas petition, Rombot v. Moniz, No. 1:17-cv-11577 (D. Mass. Aug 22, 2017).) Also on Oct. 3, defendants produced documents relating to Operation Indonesian Surrender.

Plaintiffs filed a second amended complaint on Oct. 6, adding more named plaintiffs. Judge Saris held an evidentiary hearing on Oct. 20.

On Nov. 22, defendants appealed Judge Saris's TRO to the First Circuit Court of Appeals, which opened a new docket (No. 17-2160).

On Nov. 27, Judge Saris issued an order holding that the District Court had subject-matter jurisdiction over all of plaintiff's claims (except the habeas claim, addressed in Rombot, which she dismissed without prejudice). Judge Saris enjoined defendants from removing plaintiffs until the Court rules on the preliminary injunction motion or until further order of the Court. 2017 WL 5707528.

On Dec. 20, defendants filed their opposition to plaintiffs' Sept. 25 motion for preliminary injunction and stay of removal. Defendants argued that the District Court lacked jurisdiction over the claims, which an Immigration Court should adjudicate. According to defendants, plaintiffs failed to show that defendants were likely to remove them before proceedings in an Immigration Court, and in the alternative they failed to show they were likely to face torture or death if removed. Plaintiffs replied on Jan. 5.

Judge Saris held a Jan. 17, 2018 hearing on the motion for preliminary injunction and stay of removal. On Feb. 1, she issued an order granting the preliminary injunction. 2018 U.S. Dist. LEXIS 16568. She found that, absent a stay, defendants would be likely to deport plaintiffs to Indonesia before the Board of Immigration Appeals (BIA) and First Circuit could consider plaintiffs' motions to stay and reopen. Thus plaintiffs were likely to succeed on their claim that they would be denied due process before being removed to a country where they have a credible fear of persecution.

The order stayed defendants from removing any plaintiff from the United States until one of the following occurs:
- a plaintiff fails to file motions to reopen and to stay with the BIA or the Immigration Court after receiving his or her A-file; or
- a plaintiff does file these motions, but the Immigration Court denies them, and the plaintiff fails to appeal the denial to the BIA; or
- a plaintiff does appeal the denial to the BIA, but BIA denies the appeal and the plaintiff fails to appeal this denial to the First Circuit; or
- or the plaintiff does appeal the denial to the First Circuit but the First Circuit does not order the stay to continue.

On Mar. 30, defendants appealed the preliminary injunction to the First Circuit, which opened a new docket (No. 18-1281).

This case is ongoing in both the district court and circuit court.

Ava Morgenstern - 04/08/2018


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