University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
view search results
page permalink
Case Name Damus v. Nielsen IM-DC-0045
Docket / Court 1:18-cv-00578-JEB ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Attorney Organization ACLU Chapters (any)
ACLU Immigrants' Rights Project
ACLU National (all projects)
ACLU National Prison Project
Human Rights First
Case Summary
This class action suit, filed on March 15, 2018, sought to enjoin the U.S. Department of Homeland Security (DHS) from detaining asylum seekers in order to deter other potential migrants from seeking refuge in the United States. The plaintiffs, represented by the ACLU and private counsel, were ... read more >
This class action suit, filed on March 15, 2018, sought to enjoin the U.S. Department of Homeland Security (DHS) from detaining asylum seekers in order to deter other potential migrants from seeking refuge in the United States. The plaintiffs, represented by the ACLU and private counsel, were asylum seekers who had been detained without individualized determinations that they posed a flight risk or danger to the community. The plaintiffs sued DHS under 42 U.S.C. § 1983 and alleged violations of the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), and the due process clause of the Fifth Amendment. They sought injunctive and declaratory relief. The case was filed in the U.S. District Court for the District of Columbia and assigned to Judge James E. Boasberg.

The plaintiffs stated that, upon arriving in the U.S., the government determined they had a credible fear of persecution and referred them to immigration courts for further assessment of their asylum claims. In the meantime, DHS detained them and did not provide individualized review of the need for detention. The plaintiffs argued that they were not detained due to individualized assessments that they pose a flight risk or danger to the community, but rather because DHS wanted to deter other migrants from seeking asylum in the U.S.

The plaintiffs argued that DHS adopted this broad policy of detaining asylum seekers at five Immigration and Customs Enforcement (ICE) offices--the offices in Detroit, El Paso, Los Angeles, Newark, and Philadelphia--on the basis that it would deter other migrants. The plaintiffs argued this policy was in violation of a 2015 opinion from this district court, as well as Supreme Court precedent holding that such general deterrence interests can inform criminal but not civil detention and that a conclusory national security interest was not sufficient to support the policy.

On March 20, 2018, the plaintiffs moved to certify the class, defined in the complaint as: "(1) All arriving asylum seekers; (2) who are found to have a credible fear of persecution or torture; and (3) who are or will be detained by U.S. Immigration and Customs Enforcement; (4) after having been denied parole under the authority of ICE’s Detroit, El Paso, Los Angeles, Newark, or Philadelphia Field Office."

The plaintiffs then moved for a preliminary injunction on March 30, 2018, seeking to enjoin the government from continuing to apply its deterrence policy. On April 24, 2018, the government moved to dismiss the case, claiming that the court should dismiss the complaint in its entirety because the court lacked jurisdiction to grant constitutional injunctive relief and because the complaint failed to allege facts that, taken as true, could plausibly demonstrate that the alleged unlawful deterrence policy exists.

On July 2, finding that the circumstances warranted extraordinary relief, Judge Boasberg granted the plaintiffs’ motion for preliminary injunction and granted class certification on a provisional basis for purposes of the preliminary injunction. Judge Boasberg held that it was likely that DHS had a policy or practice of detaining asylum seekers in violation of its own guidance or regulations, and so he ordered the government to follow a 2009 ICE Parole Directive--a set of principles and procedures establishing the processes by which the agency must determine whether an asylum seeker will be detained or released pending their immigration hearing. The court enjoined the defendants from denying parole to any provisional class member without first giving an individualized determination, through the parole process, that such provisional class member presented a flight risk or a danger to the community. Moreover, Judge Boasberg required that the individualized determinations be based on the specific facts of each provisional class member’s case rather than categorical criteria applicable to all provisional class members.

The court then held the motion to dismiss in abeyance as the parties worked together to implement the injunction and resolve outstanding issues outside of the courtroom. On Oct. 22, 2018 the court permitted the plaintiffs to conduct discovery for the limited purpose of determining if the government was complying with the preliminary injunction.

In a December 21, 2018 status report, the plaintiffs reported concerns about the defendants' noncompliance with the court's preliminary injunction order.

On February 28, 2019, Judge Boasberg filed an opinion and order granting in part and denying in part the defendants' motion to dismiss. He denied the motion as to the plaintiffs' APA and due process claims, but granted it as to certain defendants, dismissing them from the case. He found that his prior opinion foreclosed most of the defendants' arguments as to the plaintiffs' APA claims, and that he did not need to weigh in on the due process claim, as a decision at this point would not affect the outcome of the case. 2019 WL 1003440.

The defendants filed the administrative record on April 8.

On April 11, the plaintiffs filed a motion for a finding of civil contempt against the Los Angeles ICE Field Office for alleged ongoing violations of the court's preliminary injunction. They also requested that the court appoint a special master to oversee the Field Office's compliance with the injunction.

In a July 3 telephonic status conference, Judge Boasberg ordered the plaintiffs' motion for contempt to be held in abeyance pending the parole-grant rates to be disclosed in the defendants' next report. He noted that the rates at the Los Angeles Field Office had risen in the last report.

On July 19, the plaintiffs filed a motion for summary judgment and a permanent injunction. On September 20, the defendants filed a cross-motion for summary judgment.

On January 29, 2020, the parties filed a joint status report proposing that they withdraw their pending motions for summary judgment and that the court set a new briefing schedule to give the plaintiffs sufficient time to review any supplementation of the administrative record that may occur, as the defendants had recently completed collecting documents from the ICE field offices. The court entered an order to effectuate the parties' requests.

On February 7, Judge Boasberg issued an opinion and order denying in part the plaintiffs' motion for contempt. Judge Boasberg noted that he was denying the motion because the defendants had volunteered to implement certain remedies to ensure compliance with the preliminary injunction, but that he also found it necessary to mandate certain measures to enforce the injunction. He ordered that the staff of the Los Angeles Field Office receive training on the 2009 ICE Parole Directive (which they are supposed to be following pursuant to the injunction). He also ordered that field office officials provide short explanations when rendering parole decisions to better inform asylum seekers of their reasoning. Finally, he declined to appoint a special master, concluding that the above measures would be sufficient to ensure compliance. 2020 WL 601629.

The case is ongoing.

Virginia Weeks - 03/23/2018
Virginia Weeks - 10/22/2018
Jake Parker - 07/03/2018
Sam Kulhanek - 05/15/2020


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Discrimination-basis
Immigration status
General
Over/Unlawful Detention
Placement in detention facilities
Immigration/Border
Asylum - criteria
Asylum - procedure
Constitutional rights
Detention - criteria
Detention - procedures
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) United States
Plaintiff Description All arriving asylum seekers who are found to have a credible fear of persecution or torture and who are or will be detained by U.S. Immigration and Customs Enforcement after having been denied parole under the authority of ICE’s Detroit, El Paso, Los Angeles, Newark, or Philadelphia Field Office.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU Immigrants' Rights Project
ACLU National (all projects)
ACLU National Prison Project
Human Rights First
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Order Duration 2018 - n/a
Filed 03/15/2018
Case Ongoing Yes
Additional Resources
click to show/hide detail
  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  DAMUS V. NIELSEN
https://www.aclu.org
Date: March 2018
By: ACLU
Citation: https://www.aclu.org/cases/damus-v-nielsen
[ Detail ] [ External Link ]

  Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington Post
Date: May 22, 2017
By: Jefferson Sessions (U.S. Department of Justice)
[ Detail ] [ External Link ]

  Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13767: Border Security and Immigration Enforcement Improvements
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
Citation: 82 Fed. Reg. Presidential Documents 8793 (Jan. 27, 2017)
[ Detail ] [ PDF ]

  Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal Register
Date: Jan. 25, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

Docket(s)
1:18-cv-578 (D.D.C.)
IM-DC-0045-9000.pdf | Detail
Date: 04/24/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Complaint for Injunctive and Declaratory Relief [ECF# 3]
IM-DC-0045-0001.pdf | Detail
Date: 03/15/2018
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 33] (D.D.C.)
IM-DC-0045-0002.pdf | Detail
Date: 07/02/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 34] (313 F.Supp.3d 317) (D.D.C.)
IM-DC-0045-0003.pdf | WESTLAW| LEXIS | Detail
Date: 07/02/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 68] (2019 WL 1003440) (D.D.C.)
IM-DC-0045-0004.pdf | WESTLAW | Detail
Date: 02/28/2019
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 128] (2020 WL 601629) (D.D.C.)
IM-DC-0045-0005.pdf | WESTLAW | Detail
Date: 02/07/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Boasberg, James Emanuel (FISC, D.D.C.) show/hide docs
IM-DC-0045-0002 | IM-DC-0045-0003 | IM-DC-0045-0004 | IM-DC-0045-0005 | IM-DC-0045-9000
Plaintiff's Lawyers Ahmed, Sameer (New York) show/hide docs
IM-DC-0045-0001
Anello, Farrin R (New York) show/hide docs
IM-DC-0045-0001
Arulanantham, Ahilan T (California) show/hide docs
IM-DC-0045-0001
Auerbach, Dennis B. (District of Columbia) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Bakst, Eleni Rebecca (New York) show/hide docs
IM-DC-0045-9000
Barocas, Edward (New Jersey) show/hide docs
IM-DC-0045-0001
Bookey, Blaine (California) show/hide docs
IM-DC-0045-0001
Cardoso-Rojo, Josie (New York) show/hide docs
IM-DC-0045-0001
Fakhimi, Golnaz (Pennsylvania) show/hide docs
IM-DC-0045-0001
Gault, Laura (District of Columbia) show/hide docs
IM-DC-0045-0001
Howard, Leon F. III (New Mexico) show/hide docs
IM-DC-0045-0001
Kang, Stephen Bonggyun (District of Columbia) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Lee, Eunice (New York) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Levenson, Freda J. (Ohio) show/hide docs
IM-DC-0045-0001
Levitz, Phillip J. (District of Columbia) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
LoCicero, Jeanne (New Jersey) show/hide docs
IM-DC-0045-0001
Love, Kristin Greer (New Mexico) show/hide docs
IM-DC-0045-0001
Rabinovitz, Judy (New York) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Saldivar, Edgar (Texas) show/hide docs
IM-DC-0045-0001
Segura, Andre (Texas) show/hide docs
IM-DC-0045-0001
Siegel, Andrew (District of Columbia) show/hide docs
IM-DC-0045-9000
Spitzer, Arthur (District of Columbia) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Steinberg, Michael J. (Michigan) show/hide docs
IM-DC-0045-0001
Stottlemyer, Patricia (District of Columbia) show/hide docs
IM-DC-0045-9000
Tan, Michael K. T. (New York) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Valdes, Abril (Michigan) show/hide docs
IM-DC-0045-0001
Vieux, Hardy (District of Columbia) show/hide docs
IM-DC-0045-0001 | IM-DC-0045-9000
Walczak, Witold J. (Pennsylvania) show/hide docs
IM-DC-0045-0001
Defendant's Lawyers Braga, Victoria Marie (District of Columbia) show/hide docs
IM-DC-0045-9000
Connolly, Kathleen Ann (District of Columbia) show/hide docs
IM-DC-0045-9000
Fabian, Sarah B. (District of Columbia) show/hide docs
IM-DC-0045-9000
Halaska, Alexander James (District of Columbia) show/hide docs
IM-DC-0045-9000
Kelly, Genevieve M. (District of Columbia) show/hide docs
IM-DC-0045-9000

- click to show/hide ALL -

new search
view search results
page permalink

- top of page -