On July 28, 2017, this plaintiff -- a detained asylum-seeker -- filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of New York. The petition is not publicly available.

On July 31, the case was assigned to Judge Elizabeth A. Wolford.

The plaintiffs, all asylum-seekers detained at Batavia (the Buffalo, NY Federal Detention Facility), filed an amended petition on Aug. 21, 2017. The New York Civil Liberties Union and the International Refugee Assistance Project represented the plaintiffs. In their amended class-action petition, the plaintiffs sought to challenge the federal government’s ability to deny arriving asylum seekers parole and then incarcerate them. The plaintiffs argued that the government was doing so despite its determination that the asylum seekers were likely to win the right to remain in the United States. According to the plaintiffs, their detentions were prolonged and arbitrary, and they were denied parole requests or bond hearings. The plaintiffs alleged violations of Fifth Amendment due process, the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(d)(5)(A), and 8 C.F.R. § 212.5.

The petition sought to certify a class “of all arriving asylum-seekers who have
passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole." They also sought certification of a prolonged detention sub-class defined as "of those arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been or will be detained for more than six months without a bond hearing before an immigration judge."

The defendants moved to dismiss the case on Sept. 12, 2017. The plaintiffs moved for a preliminary injunction on Sept. 25, 2017. The Court denied the motion to dismiss and granted a preliminary injunction on Nov. 17, 2017. The Court ordered that defendants comply with their internal directive on parole hearings and provide bond hearings after six months of detention to “establish by clear and convincing evidence that an asylum-seeker is a flight risk or danger to the community to justify continued detention.” The Court stated that, while diverging from the ICE directive might be politically significant in light of the Trump administration policies, there was no legal basis for divergence. 2017 WL 5599521.

The Court granted class certification on Dec. 19, 2017. The Court further ordered that the preliminary injunction applied to the newly certified class. 2017 WL 6507248.

On Jan. 11, 2018, the defendants filed an interlocutory appeal to the Second Circuit as to the Court's denial of the defendants' motion to dismiss. The Second Circuit opened a new docket, No. 18-00094. The defendants' appellate opening brief is due May 4.

The District Court held a motions hearing on Jan. 26 and issued a Feb. 9 order clarifying the Nov. 17 preliminary injunction. Judge Wolford specified that an Immigration Judge who conducts a subclass member's bond hearing and determines that release is appropriate must consider alternative conditions of release and ability to pay bond.

On Apr. 11, 2018, the Second Circuit asked the parties to show cause why the appeal should not be remanded to the District Court in light of the U.S. Supreme Court decision in Jennings v. Rodriguez. The Second Circuit remanded the case on Oct. 30, though that order is not currently publicly available.

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

Virginia Weeks - 11/26/2017
Virginia Weeks - 11/01/2018
Ava Morgenstern - 04/21/2018


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