DOLLY M. GEE, District Judge.
This matter is before the Court on the Motion for a Preliminary Injunction filed by Plaintiffs Aleksandr Petrovich Khukhryanskiy and Ever Francisco Martinez-Rivas ("Plaintiffs"). The Court conducted a hearing on December 8, 2010 (the "December 8 Hearing"). Having duly considered the parties' respective positions, as presented in their briefs and at oral argument, the Court now renders is decision. For the reasons set forth below, Plaintiffs' Motion is GRANTED in part.
On March 26, 2010, Petitioner Jose Antonio Franco-Gonzales ("Franco") filed a Petition for Writ of Habeas Corpus (the "Petition") in this Court alleging various violations of the Immigration and Nationality Act ("INA"), the Due Process Clause of the 5th Amendment to the U.S. Constitution, and Section 504 of the Rehabilitation Act. On March 31, 2010, Respondents released Franco from custody on his own recognizance, under conditions of supervision pursuant to section 236 of the INA, 8 U.S.C. § 1226.
On August 2, 2010, Franco attempted to file a first amended class action complaint
On September 14, 2010, Franco filed a Motion for Review of Magistrate Judge's Decision Denying Ex Parte Application to Amend Complaint. On October 18, 2010, this Court granted Franco's Motion and provided Franco 15 days to file an amended complaint. [Doc. # 54.]
On November 2, 2010, Franco filed a First Amended Class Action Complaint ("First Amended Complaint"), which added Khukhryanskiy and Martinez as well as three other named plaintiffs. [Doc. # 64.] The First Amended Complaint alleges the following causes of action: (1) right to a competency evaluation under the INA; (2) right to a competency evaluation under the Due Process Clause; (3) right to appointed counsel under the INA; (4) right to appointed counsel under Section 504 of the Rehabilitation Act; (5) right to appointed counsel under the Due Process Clause; (6) right to release under the INA; (7) right to release under the Due Process Clause; (8) right to a detention hearing under the INA; (9) right to a detention hearing under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"); (10) right to a detention hearing under the Due Process Clause; and (11) violation of the Administrative Procedures Act.
On November 15, 2010, Plaintiffs filed (1) a TRO Application [Doc. # 57], (2) a Motion for a Preliminary Injunction [Doc. # 57], and (3) an Expedited Discovery Application [Doc. # 60]. On November 16, 2010, Defendants filed an Opposition to the TRO Application, and on November 17, 2010, Plaintiffs filed a Reply. Defendants filed their Opposition to the Expedited Discovery Application on November 19, 2010, and on November 22, 2010, Plaintiffs filed a Reply. On November 24, 2010, the Court issued an order (the "TRO") granting Plaintiffs' TRO Application and denying Plaintiffs' Expedited Discovery Application. [Doc. # 78.] The Court also set a hearing on the Preliminary Injunction Motion for December 8, 2010.
On December 1, 2010, Defendants filed an Opposition to Plaintiffs' Preliminary Injunction Motion. On December 6, 2010, Plaintiffs filed a Reply. On December 15, 2010, each of the parties filed supplemental briefs on issues identified at the December 8 Hearing, and on December 17, 2010, the parties filed their respective supplemental responses. On December 20, 21, and 22, 2010, the parties submitted additional unsolicited filings, including Defendants' "Notice of Clarification," a "Response to Defendants' Notice of Clarification," and Defendants' Status Reports regarding their efforts to secure pro bono counsel for Plaintiffs.
Plaintiff Khukhryanskiy is a 45-year-old native and citizen of Ukraine who was
On April 15, 2010, Khukhryanskiy was taken into custody by Department of Homeland Security ("DHS"). He was referred to Immigration and Customs Enforcement ("ICE") from the United States Citizenship and Immigration Services ("USCIS") after submitting his application for refugee adjustment of status pursuant to 8 U.S.C. § 1159. (Pls.' RJN, Ex. 58.) DHS initiated removal proceedings against him, charging him as deportable for having been convicted of an aggravated felony on the basis of his 2005 conviction for attempted assault and robbery. (Pls.' RJN, Ex. 64.) He is currently detained at the Northwest Detention Center in Tacoma, Washington.
Khukhryanskiy has been diagnosed with paranoid schizophrenia and psychosis (not otherwise specified), post-traumatic stress disorder, and major depression. (Decl. of Ahilan T. Arulanantham ("Arulanantham Decl." ¶¶ 5-6, Exs. 60-61.)) He has been receiving mental health treatment after being involuntarily placed at Adventist Mental Health Services in 2004 through a mental health commitment hearing. (Arulanantham Decl. ¶ 7, Ex. 62.)
DHS's Form 1-213, "Record of Deportable/Inadmissible Alien," for Khukhryanskiy states:
(Defs.' RJN, Ex. 58 at 4.)
Khukhryanskiy's medical records indicate that on August 20, 2010, Khukhryanskiy went to the clinic and stated:
(Decl. of Ahilan Arulanantham in Supp. of Pls.' Reply ("Arulanantham Reply Decl.") ¶ ¶ 8, Ex. 87, at 84.) Then, on August 21, 2010, Khukhryanskiy was brought to medical staff because he was deemed to be a danger to himself. (Id. at 82.) One entry for August 21, 2010 states:
(Id. at 83.)
On September 20 and September 24, 2010, Kimberly Barrett, a professor at the University of Washington's Department of Psychology with 20 years of experience conducting competency and mental health evaluations in criminal and immigration proceedings, met with Khukhryanskiy. Declaration of Riddhi Mukhopadhyay ("Mukhopadhyay Decl." ¶¶ 10-11.) In a report dated October 3, 2010, which is entitled, "Psychological Evaluation: Aleksandra [sic] Mestrovic Khukhryanskiy," Dr. Barrett states that Khukhryanskiy's mental illness is "chronic and very severe." (Mukhopadhyay Decl. ¶¶ 10-11, Ex.). Dr. Barrett states:
(Mukhopadhyay Decl. ¶¶ 10-11, Ex. at 2-3; emphasis in original.)
At a hearing on May 25, 2010, Khukhryanskiy stated to the Immigration Judge:
(Pl.'s RJN, Ex. 88.) In response, the Immigration Judge stated:
(Id.)
On August 25, 2010, the Immigration Judge held a master calendar hearing (the "August 25 Hearing"). At that hearing, Khukhryanskiy stated, "I just want to leave this country." (Pls.' RJN, Ex. 66 at 8-9.) Defendants also highlight the following exchange:
(Pls.' RJN, Ex. 66, at 13.) On that basis, the Immigration Judge ordered Khukhryanskiy removed from the United States to Ukraine. (Pls.' RJN, Ex. 65.)
During that same August 25 Hearing, Khukhryanskiy stated that he did not understand the proceedings:
(Pls.' RJN, Ex. 66, at 10.) Plaintiffs contend that Robert Mason, a DHS officer, attended the August 25 Hearing to assist the Immigration Judge by answering questions regarding Mr. Khukhryanskiy. According to Defendants, however, Mr. Mason was not present to serve as Mr. Khukhryanskiy's representative.
Khukhryanskiy's appeal is pending at the Board of Immigration Appeals ("BIA"), which issued a briefing schedule requiring Khukhryanskiy to file his appeal brief by November 12, 2010. (Pls.' RJN, Ex. 67.) Through the Legal Orientation Program ("LOP") provided by the Executive Office for Immigration Review ("EOIR"), Khukhryanskiy received assistance filing a Briefing Extension Request, which extended the briefing schedule to approximately December 3, 2010. (Pls.' RJN, Ex. 68.) But for the issuance of the TRO, Khukhryanskiy's brief would have been due on or about December 3, 2010.
Plaintiff Martinez is a 31-year-old native and citizen of El Salvador who has been a Lawful Permanent Resident since 2006. (Declaration of Maria Elena Felipe ("Felipe Decl.") ¶¶ 2-3.) On May 30, 2008, Martinez was convicted in the Riverside Superior Court for a violent crime against his stepfather. (Felipe Decl. ¶ 6; Defs.' RJN, Exs. 1-2.) At that time, Martinez was initially deemed incompetent to stand trial for the offense, but was eventually restored to competency and pled guilty. (Arulanantham Decl. ¶ 9, Ex. 71 at 6.) ICE served Martinez with a Notice to Appear ("NTA") dated October 20, 2009, which placed Martinez in removal proceedings. (Pls.' RJN, Ex. 72; Defs.' RJN, Ex. 4.) Martinez is currently detained at the Otay Mesa Detention Facility in San Diego, California. (Pls.' RJN, Ex. 75.)
Martinez suffers from schizophrenia and has been repeatedly hospitalized over a number of years due to this disability. (Arulanantham Decl. ¶ 8, Ex. 70.) DHS's Form I-213, "Record of Deportable/Inadmissible Alien," for Martinez states that he "is schizophrenic and currently is taking medication for said medical condition." (Pls.' RJN, Ex. 72 at 2.)
On August 2, 2010, Robert Burchuk, M.D., a member of the Expert Panel of the Los Angeles Superior Court, examined Martinez. (Declaration of Robert Burchuk, ¶¶ 3-4.) Following his examination, Dr. Burchuk diagnosed Martinez with "Schizophrenia, Undifferentiated Type, Continuous with Prominent Negative Symptoms," and described Martinez's symptoms as "[a]ffective flattening—the absence of facial expression, alogia—the inability to speak more than a few words at a time, and avolition—the inability to initiate and persist in goal-directed activity." (Burchuk Decl. ¶¶ 6-7.) According to Dr. Burchuk, Martinez:
(Id.) (emphasis added.)
During the pendency of his removal proceedings, Martinez attended several master calendar hearings before the San Diego Immigration Court. (Felipe Decl. ¶ 9, Pls.' RJN, Ex. 75.) At a hearing on June 4, 2010, Martinez's mother, Ms. Maria Elena Felipe, addressed the court to point out that she had served as her son's conservator for several years. (Felipe Decl. ¶ 9; Pls.' RJN, Ex. 75 at 3.) At each of the hearings, the Immigration Judge apprised Martinez of his right to obtain counsel and recommended he seek attorneys from the LOP. (Pls.' RJN, Ex. 75 at 2.) Martinez remained unrepresented during the entirety of his Immigration Court proceedings. (Id.)
On April 2, 2010, the Immigration Judge took Martinez's pleas to the NTA and provided Martinez with a copy of Form 589 for Martinez to pursue relief under the Convention Against Torture. (Id. at 2.) Martinez filed the application with the Immigration Court on May 25, 2010. (Id.) The immigration court set the merits hearing on September 16, 2010 (the "September 16 Hearing"). (Id. at 3.)
On August 31, 2010, Defendants submitted Dr. Burchuk's evaluation to the Immigration Court. (Pls.' RJN, Exs. 74-75.) In a memorandum to the Immigration Judge, DHS stated "in the event that Martinez is determined by the Court to be mentally incompetent, this Court has the authority to appoint a custodian, such as Maria Elena Felipe (Martinez's mother and former conservator) to speak on his behalf." (Pls.' RJN, Ex. 74.) Martinez's mother was not in attendance at the September 16 Hearing.
At the September 16 Hearing, the Immigration Judge found that Martinez was not mentally competent to proceed pro se in the removal proceedings. The judge further stated that:
(Pls.' RJN, Ex. 75 at 8-9.)
The Immigration Judge terminated the proceedings and certified her decision for appellate review. (Id. at 9-10.) Martinez's case is currently pending before the BIA and, but for the issuance of the TRO,
Federal Rule of Civil Procedure 65 governs the issuance of preliminary injunctions. The purpose of such injunctive relief is to preserve the rights and relative positions of the parties, i.e., the status quo, until a final judgment issues. See U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir.2010) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). An injunction is an exercise of a court's equitable authority, which should not be invoked as a matter of course, and "only after taking into account all of the circumstances that bear on the need for prospective relief." Salazar v. Buono, ___ U.S. ____, 130 S.Ct. 1803, 1816, 176 L.Ed.2d 634 (2010).
A plaintiff seeking injunctive relief must show that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Toyo Tire Holdings Of Ams. Inc. v. Cont'l Tire N. Am., Inc., 609 F.3d 975, 982 (9th Cir.2010) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008)). An injunction may be appropriate when a plaintiff raises "serious questions going to the merits" and demonstrates that "the balance of hardships tips sharply in the plaintiffs favor." Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1052 (9th Cir.2010) (quoting The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008)).
Unlike a preliminary injunction, a mandatory injunction "goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.2009) (internal quotations omitted). Mandatory injunctions should be denied unless the facts and law clearly favor the moving party. Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County, 550 F.3d 770, 776 (9th Cir.2008) (citing Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir.1994)). The Court, however, is empowered to grant mandatory injunctions, especially when prohibitory orders may be ineffective or inadequate. Katie A., ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1156-57 (9th Cir.2007).
Defendants argue that the Preliminary Injunction Motion should be denied because: (1) judicial review of legal questions arising from Plaintiffs' removal proceedings are barred by 8 U.S.C. §§ 1252(a)(5), (b)(9); (2) Plaintiffs failed to exhaust their administrative remedies; and (3) the Court lacks jurisdiction under 8 U.S.C. 1252(g) because the Preliminary Injunction Motion arises from the BIA's decision or action to adjudicate Plaintiffs' cases. Defendants concede that their "jurisdictional argument specifically pertains to [Plaintiffs'] appointment of counsel claim [and that Plaintiffs'] challenges to detention are still permitted under the Real ID Act because they are deemed independent of the removal proceedings themselves." (Defs.' Opp'n to Pl.'s App. for Expedited Discovery at 3 n. 1.)
Defendants contend that Plaintiffs' claims are barred by the REAL ID Act because Plaintiffs seek judicial review of legal and factual questions "arising from" Plaintiffs' removal proceedings. Plaintiffs respond that neither Section 1252(a)(5) nor Section 1252(b)(9) bar review of their claims because they do not challenge final orders of removal.
Under the REAL ID Act, an "order of removal" means:
8 U.S.C. § 1101(a)(47)(A); see also Morales-Izquierdo, 600 F.3d at 1082.
An order of removal becomes final upon the earlier of:
8 U.S.C. § 1101(a)(47)(B); see also Singh, 499 F.3d at 979.
In Singh, the Ninth Circuit distinguished between challenges to removal orders and "challenges that arise independently." 499 F.3d at 978. Although the petitioner's ineffective assistance of counsel claim arose after the issuance of the
In their Opposition, Defendants highlight the fact that Singh's claim arose after the issuance of the final order of removal. Singh, 499 F.3d at 979. The Court is not persuaded by Defendants' attempt to distinguish Singh. In fact, the timing of Singh's claim was not critical to the Ninth Circuit's analysis. See, e.g., Kharana v. Chertoff, 2007 WL 4259323, at *3 (N.D.Cal.2007) (Singh court did not limit its holding to situations where the ineffective assistance claim arose after the issuance of the removal order). Instead, emphasizing the difference between the immediate goal of his habeas petition and his "ultimate goal," the Ninth Circuit concluded that Singh's claim was a "challenge that [arose] independently." Likewise, in the instant matter, if Plaintiffs prevail on the merits of this case, they would be entitled only to relief that would help to ensure their meaningful participation in removal and/or custody proceedings.
At this time, neither Plaintiff has received a final removal order. Their BIA appeals are currently pending. While Plaintiffs' ultimate goal undoubtedly pertains to the removal orders themselves, their petition for relief before this Court is indistinguishable from that in Singh. As Plaintiffs explain in their Reply:
(Pl.'s Reply at 6.)
Defendants also rely on Aguilar v. U.S. Immigr. and Customs Enf. Div. of Dep't of Homeland Sec., 510 F.3d 1 (1st Cir.2007), in support of their contention that this Court is devoid of jurisdiction. The petitioners in Aguilar, who had been detained en mass in a raid along with more than 300 individuals, filed a habeas petition and a complaint alleging a violation of constitutional and statutory rights, including the right to counsel. No formal removal proceedings had been initiated as of the time of their petition. Noting the "frequency with which right-to-counsel claims arise in removal proceedings" and finding no evidence that the petitioners would be irreparably harmed if they were required to administratively exhaust their claims, the court held that Section 1252(b)(9) stripped the court of jurisdiction to consider the petitioners' right-to-counsel claims. Id. at 13.
This Court is neither bound by the First Circuit's decision nor persuaded that it is applicable in this case. Here, as discussed supra, the weight of the evidence presented demonstrates that Plaintiffs are mentally incompetent. Plaintiffs' unique circumstances withstand characterization as the same type of right-to-counsel claims that
Finding no basis to construe Plaintiffs' claims as a challenge to a final order of removal as defined in 8 U.S.C. § 1101(a)(47)(B), the Court concludes that 8 U.S.C. §§ 1252(a)(5) and (b)(9) do not strip the Court of jurisdiction in this case.
Defendants contend that Plaintiffs should be required to proceed with their BIA appeals because the BIA is already on notice in both cases that it must adjudicate the issue of the procedural safeguards guaranteed to mentally ill respondents in removal proceedings. Defendants fail to identify, and the Court has not found, any authority mandating administrative exhaustion under these circumstances.
Exhaustion is required where mandated by Congress, but where Congress has not clearly required exhaustion, "sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). In determining whether exhaustion is required,
In El Rescate, where the petitioners challenged the failure of the INS to require translation of all removal proceedings, the Ninth Circuit determined that it would be unrealistic to require the plaintiffs to exhaust their administrative remedies where the BIA had already "announced and reaffirmed its policy regarding translation of immigration proceedings, and its understanding of the requirements of the due process clause." El Rescate, 959 F.2d at 747.
In this case, the Court likewise takes an "intensely practical" approach in determining whether requiring exhaustion would, in fact, be futile. Sections 2.3(a) and 5.9(h)(1) of the BIA Practice Manual indicate that the BIA neither entertains motions to hold cases in abeyance while other matters are pending nor recognizes a right to appointed counsel in removal proceedings under any circumstances.
In response, Defendants argue that a variety of accommodations are possible at the administrative level short of appointment of counsel, including the appointment of guardians ad litem, termination of Plaintiffs' immigration proceedings, and administrative closure of Plaintiffs' immigration proceedings. Defendants further argue that Plaintiffs can move the BIA to hold their proceedings in abeyance while they pursue their administrative claims under the Rehabilitation Act.
Defendants' arguments ring hollow given the procedural background of this case and Defendants' constantly evolving positions. Plaintiffs find themselves in a unique posture following a Kafkaesque journey to this Court's door. Prior to the commencement of this action, Khukhryanskiy had been in mandatory detention without a hearing for over seven months. Despite existing evidence of his mental incompetence, the Immigration Court proceeded with a removal hearing wherein Khukhryanskiy appeared pro se. It is unclear whether anyone brought Khukhryanskiy's mental condition to the Immigration Judge's attention or whether anyone involved in the process considered the implications of Khukhryanskiy's condition. A removal order ultimately issued against Khukhryanskiy and he was deemed by the Immigration Judge to have waived his right to appeal, notwithstanding that no such waiver appears in the record.
Juxtaposed against Khukhryanskiy's experience is that of Martinez, who had been in mandatory detention without a hearing for more than one year. Appearing pro se at his removal proceeding, Martinez was deemed mentally incompetent by the Immigration Judge. To her credit, the Immigration Judge terminated the removal proceedings after recognizing that she could not go forward with the proceeding given Martinez's mental condition. Martinez is expected, however, to represent himself on the appeal to the BIA as to the propriety of the Immigration Judge's decision.
Aside from the voices inside their heads, both Plaintiffs are for all intents and purposes voiceless. Defendants, in essence, urge this Court to allow mentally incompetent aliens to proceed pro se to see if they can present a thoughtful and coherent analysis of, and recommendations of possible remedies for, the lack of procedural safeguards facing unrepresented mentally incompetent aliens.
Defendants next argue that 8 U.S.C. § 1252(g) strips this Court of jurisdiction. Plaintiffs respond that Section
8 U.S.C. § 1252(g) (emphasis added).
The Supreme Court has emphasized Section 1252(g)'s narrow reach. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). The provision applies only to the following "three discrete actions that the Attorney General may take: her decision or action to commence proceedings, adjudicate cases, or execute removal orders." Id. at 482, 119 S.Ct. 936 (emphasis in original; internal quotations omitted). The Supreme Court has also recognized that there are decisions or actions "collateral" to those discrete actions, stating:
American-Arab, 525 U.S. at 482, 119 S.Ct. 936 (emphasis added).
Like other Circuit courts, the Ninth Circuit has recognized that Section 1252(g)'s jurisdiction-stripping over decisions or actions to "adjudicate" cases does not remove federal jurisdiction to grant injunctive relief to classes of aliens challenging deportation procedures. See, e.g., Barahona-Gomez v. Reno, 236 F.3d 1115, 1121 (9th Cir.2001) (noting Fourth and Seventh Circuits have held that decisions or actions that occur during the formal adjudicatory process are not rendered unreviewable because of Section 1252(g)). Instead, the Ninth Circuit has distinguished between actions to obtain judicial review of the merits of INS proceedings and actions to enforce constitutional rights to due process in the context of those proceedings. See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998).
In Ortiz v. Meissner, 179 F.3d 718 (9th Cir.1999), the Ninth Circuit determined that it had jurisdiction to review administrative denials of the plaintiffs' applications for interim work authorization. In so doing, the court was particularly concerned that without district court jurisdiction, there would be no meaningful opportunity for the plaintiffs to obtain a resolution of their claim. The court stated:
Ortiz, 179 F.3d at 722 (citing McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 497 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)).
Similarly, the Walters court determined that it had jurisdiction to review the plaintiffs' due process claims that document fraud forms failed to provide plaintiffs with adequate notice:
Walters, 145 F.3d at 1052.
In this case, Defendants contend that Plaintiffs' action is one challenging the Attorney General's action to "adjudicate" Plaintiffs' cases because "their request is to enjoin the adjudication of Plaintiffs' immigration cases entirely by requesting that this Court prohibit any and all actions in their removal proceedings from being taken—a request that is plainly barred by 8 U.S.C. § 1252(g)." (Def.'s Opp'n at 7-8.)
The Court is not persuaded by Defendants' attempt to reframe Plaintiffs' petition. Plaintiffs ask the Court to enjoin removal proceedings until Plaintiffs are afforded adequate legal representation and to enjoin Plaintiffs' detention unless Plaintiffs are provided a bond hearing before an Immigration Judge. As in Walters, Plaintiffs have not raised a constitutional challenge to Defendants' decision to adjudicate cases against them or the merits of that adjudication. While the alleged constitutional violations that Plaintiffs allege may have led to the decisions currently on appeal before the BIA, if Plaintiffs prevail on their claims, they will only be entitled to legal representation to assist in their removal proceedings. Defendants disregard this pivotal distinction.
The Court also finds the cases cited by Defendants are inapposite. As Defendants recognize in their Opposition, Ali v. Mukasey, 524 F.3d 145 (2d Cir.2008), held that Section 1252(g) applied to a claim that the DHS improperly exercised its discretion in bringing removal proceedings against various aliens. As discussed supra, the instant action does not involve a challenge to the Attorney General's exercise of his discretion to adjudicate Plaintiffs' cases. Tobar-Barrera v. Napolitano, 2010 WL 972557 (D.Md.2010), simply follows the holding in American-Arab that Section 1252(g) deprives courts of jurisdiction over challenges to government actions "to commence proceedings, adjudicate cases, or execute removal orders." Id. at *2. In Tobar-Barrera, the petitioner sought to enjoin proceedings pending before the Immigration Court, challenging the Government's discretion to re-commence removal proceedings against him after had awaited an asylum ruling for almost 16 years.
Finally, Moore v. Mukasey, 2008 WL 4560619 (S.D.Tex.2008), held that to the extent petitioner sought to enjoin the commencement of removal proceedings, the court lacked subject matter jurisdiction. Presumably, even Plaintiffs would agree
Finding no authority to the contrary, the Court concludes that Section 1252(g) does not preclude this Court from exercising jurisdiction in this case.
Plaintiffs maintain that they are likely to succeed on the merits of their claims because: (1) the Due Process Clause requires (a) the appointment of counsel for unrepresented non-citizens whose serious mental disabilities render them incompetent to represent themselves and (b) the provision of a custody hearing in light of Plaintiffs' prolonged detention; (2) Plaintiffs' liberty interests at stake entitle them to appointed counsel; and (3) Section 504 of the Rehabilitation Act requires (a) the appointment of counsel as an accommodation for non-citizens who are not competent to represent themselves and (b) a custody hearing in light of Plaintiffs' prolonged detention.
The Court discusses Plaintiffs' claims for appointment of counsel and for a custody hearing in turn. As explained below, the Court finds that Plaintiffs have demonstrated that they are likely to succeed on the merits of their claims.
The Court must avoid reaching constitutional questions in advance of the necessity of deciding them. Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); see also In re Joye, 578 F.3d 1070, 1074 (9th Cir.2009). Accordingly, the Court first addresses Plaintiffs' claims for appointment of counsel under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Section 504 provides that no "qualified individual with a disability" be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a); see also 6 C.F.R. § 15.30 (prohibiting discrimination by DHS); 28 C.F.R. § 39.130 (prohibiting discrimination by the Department of Justice). An organization that receives federal funds violates Section 504 if it denies a qualified individual with a disability a reasonable accommodation that the individual needs in order to enjoy meaningful access to the benefits of public services.
To state a prima facie case under Section 504, Plaintiffs must demonstrate that: (1) they are qualified individuals with a disability, as defined under the Americans with Disabilities Act ("ADA"), (2) they are otherwise qualified for the benefit or services sought; (3) that they were denied the benefit or services solely by reason of their handicap; and (4) the program
42 U.S.C. § 12102(1).
Defendants do not appear to challenge the fact that Plaintiffs have established a prima facie case under Section 504. The Court therefore assumes, for purposes of this Motion, that a prima facie case exists.
Although the INA provides aliens with the "privilege" of representation, such representation is not provided at the Government's expense. See 8 U.S.C. § 1229a(b)(4)(B), 8 U.S.C. § 1362.
8 U.S.C. § 1229a(b)(3) (emphasis added). Among such existing "safeguards" are that (1) Immigration Judges are prohibited from accepting admissions of removability from unassisted mentally ill aliens, see 8 C.F.R. § 1240.10(c),
8 C.F.R. § 1240.4 (emphasis added).
The parties appear to agree that neither Plaintiff received the appropriate existing "safeguards," as required by 8 U.S.C. § 1229a(b)(3). In both cases, service of the NTA was defective because it was not served on either Plaintiffs representative and, as a result, neither Plaintiff was accompanied by a representative, as contemplated by 8 C.F.R. § 1240.4.
Where the parties diverge is on what must be done at this juncture. According to Plaintiffs, none of the regulatory "safeguards," discussed supra and cited to by Defendants, even if properly implemented, would assist Plaintiffs in their appeals before the BIA absent the appointment of counsel. Defendants contend that the BIA should first be allowed to determine what procedural rights are necessary for mentally incompetent aliens.
The unique circumstances of Plaintiffs' case present a matter of first impression to the Court. The Court must take into account Plaintiffs' individual characteristics and the procedural posture of their cases pending before the BIA in order to assess the reasonableness of the accommodation requested. See Mark H., 620 F.3d at 1098 (a determination of what is "reasonable" depends on an individualized inquiry and requires a "fact-specific, individualized analysis of the disabled individual's circumstances and the accommodations that might allow meaningful access to the program").
Martinez prevailed in his underlying Immigration Court removal proceedings. After
On the facts presented, it is difficult to conceive of any paradigm in which Martinez could proceed pro se. Dr. Burchuk found that Martinez's mental illness "causes him to suffer from auditory hallucinations and a paucity of spontaneous thoughts, and renders him unable to process and synthesize information," the result of which is that he is unable to "understand, formulate, and verbally express ideas in a way that most other people can." (Burchuk Decl. ¶¶ 6-7.) What Martinez now faces is the daunting task of drafting and filing a brief that sets forth the factual and legal basis upon which the BIA should uphold the termination of his removal proceedings.
Federal regulations permit a mentally incompetent alien to be accompanied by an "attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the notice to appear," or if such person cannot be found, a "custodian." 8 C.F.R. § 1240.4. As the Immigration Judge noted in her decision, however, "[t]he regulations at 8 C.F.R. § 1204.4[sic] are only a single paragraph long, and fail to define key terms, such as `custodian.'" (Pls.' RJN, Ex. 75 at 7.)
Notwithstanding that Martinez's mother had been appointed as his conservator at certain times in the past, she was not so appointed at the time of the September 16 Hearing and was not served with the NTA on Martinez's behalf. In any case, the Immigration Judge found that the Immigration Court could not "compel her to appear" on Martinez's behalf. Plaintiffs also present Ms. Felipe's testimony that she "could not and cannot serve" as Martinez's legal representative, stating:
(Decl. of Maria Elena Felipe, dated December 2, 2010, ¶ 8) [Doc. # 85-1].
Even if the Court could compel Ms. Felipe to serve as Martinez's "representative," the Court is not convinced that doing so would be a "reasonable accommodation" for Martinez at this juncture. Martinez finds himself at this critical crossroad due to Defendants' failure to provide adequate safeguards at the inception of his detention and removal proceedings. What Martinez's case presents is an opportunity for the BIA to finally provide, at best, systemic guidelines for unrepresented mentally incompetent aliens who require reasonable accommodations in removal proceedings, and, at least, clearer guidance to the Immigration Court, Defendants, and Martinez in this uncharted area of the law. As the Immigration Judge plaintively pointed out in her decision, there is a marked lack of
(Pls.' RJN, Ex. 75 at 6) (emphasis in original).
Given Plaintiff Martinez's mental condition and the importance of the issues at stake in the pending BIA appeal, the Court is compelled to conclude that he is entitled under the Rehabilitation Act to a reasonable accommodation that would provide him with adequate representation.
Unlike Martinez, Khukhryanskiy was ordered removed at his removal proceeding. The Immigration Judge in Khukhryanskiy's case did not address whether Khukhryanskiy was mentally competent to proceed pro se, despite the plethora of evidence in Khukhryanskiy's medical records indicating that he suffers from severe mental illness.
Not only did the Form 1-213 in Khukhryanskiy's file reveal that he was diagnosed as a paranoid schizophrenic, his medical records indicate that on August 20, 2010, just five days before the August 25 Hearing in which he admitted to his removability, Khukhryanskiy complained of hearing voices in his head, stating he "[would] sign anything they ask [him] to sign." (Arulanantham Reply Decl. ¶ 8, Ex. 87, at 84.) The next day, on August 21, 2010, Khukhryanskiy was taken to medical staff because he was "banging his head extremely hard to the point that he will injure himself and he was yelling" and wrapped a cord around his neck. (Id. at 82.) According to the medical records, Khukhryanskiy stated, "I can't take this place anymore, I can't control the voices in my head. I need to be released. I am going mad here!!!" (Id. at 83.)
As in Martinez's case, the NTA was not served on a "near relative, guardian, committee, or friend," as required by 8 C.F.R. § 103.5a(c)(2)(ii). Khukhryanskiy appeared pro se at his August 25 Hearing. The Immigration Judge ordered him removed and Khukhryanskiy filed an appeal before the BIA. Plaintiffs ask the Court to enjoin the BIA appellate proceedings pending appointment of counsel at Government expense to assist Khukhryanskiy in prosecuting his appeal.
On the evidence presented, the Court finds that Khukhryanskiy was not mentally competent when he was served with the NTA and when his pleadings were taken. Thus, Khukhryanskiy, like Martinez, did not meaningfully participate in his removal proceedings as a result of his mental illness. As with Martinez, the Court finds that Khukhryanskiy is likely to prevail on his claim that Defendants violated the Rehabilitation Act when they failed to provide him with adequate safeguards at the inception of his detention and during removal proceedings and that he is entitled to adequate representation under that Act.
Given the Court's finding that Plaintiffs are entitled to adequate representation under the Rehabilitation Act, the Court must next examine what constitutes "adequate representation" and determine whether paid appointed counsel would be a reasonable accommodation for Plaintiffs in this case.
While a reasonable accommodation does not require an organization to make a "fundamental" or "substantial" alteration to its programs, reasonable adjustments may be required at times to assure "meaningful access." Alexander, 469 U.S. at 300-01, 105 S.Ct. 712.
Defendants attack the reasonableness of Plaintiffs' proposed accommodation—paid appointed counsel—and argue that Section 504 is only intended to level the playing field and not to provide advantages to the disabled.
US Airways, Inc. v. Barnett, 535 U.S. 391, 397, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (emphasis added); see also Giebeler v. M & B Associates, 343 F.3d 1143, 1150 (9th Cir.2003) (applying Barnett to hold that an accommodation may result in a preference for disabled individuals over otherwise similarly situated nondisabled individuals).
Defendants initially urged the Court, at this critical phase of the BIA proceedings, to allow important issues to be presented to the BIA and addressed by an unrepresented mentally incompetent alien. Defendants contended that the fact that the BIA is on notice of Plaintiffs' mental incompetence is a sufficient safeguard of Plaintiffs' rights.
On December 21, 2010, Defendants filed a status report [Doc. # 103] informing the Court that on December 20, 2010, the Capital Area Immigrants' Rights ("CAIR") Coalition, a pro bono legal organization, agreed to represent Martinez in his case before the BIA, which Defendants argue extinguishes the exigency of Martinez's claim. Defendants filed another status report on December 22, 2010 to report that they had located pro bono counsel for Khukhryanskiy and requested the Court delay its ruling on Plaintiffs Motion until December 27, 2010 to see if the pro bono representation would "come[] to fruition." (Defendants' Status Report, filed December 22, 2010.)
The Court is not authorized to extend the TRO beyond the date of this Order without the parties' consent. Rule 65(b)(2) of the Federal Rules of Civil Procedure states:
Fed.R.Civ.P. 65(b)(2) (emphasis added). The Court issued the TRO on November 24, 2010 and it cannot be extended more than 28 days without the parties' consent. At the telephonic status conference held on December 21, 2010, the parties declined to consent to any further extension of the TRO.
As of the date of this Order, Defendants have filed a "status report." There is no sworn declaration confirming that Defendants have secured counsel for both Martinez and Khukhryanskiy relating to their immigration proceedings, presenting evidence that a retainer agreement has been signed by Plaintiffs and pro bono counsel, or providing the Court with information demonstrating that the scope of the proposed representation encompasses the full extent of the legal proceedings contemplated by Plaintiffs' Preliminary Injunction Motion. Rather, Defendants have notified the Court that Defendants have engaged in the process of securing counsel for Plaintiffs and that certain counsel have responded favorably to Defendants' efforts. Such information, in and of itself, is insufficient to either extinguish the urgency of, or to moot, Plaintiffs' claims. See Rosemere Neighborhood Ass'n v. U.S. EPA, 581 F.3d 1169, 1173 (9th Cir.2009) ("the mere [voluntary] cessation of illegal activity in response to pending litigation does not moot a case"). Defendants' offer of counsel speaks volumes, however, regarding the reasonableness of the proposed accommodation and the absence of undue burden in providing the accommodation.
In response to Defendants' offer of pro bono counsel, Plaintiffs argue that "to allow the Expedited Relief Plaintiffs to be accelerated in their consideration for pro bono work would lessen the ability of others in the proposed class to be considered, and would thus impact the fiduciary duties that Plaintiffs' counsel has for class members." (Parties' Joint Report [Doc. # 99] at 3.) While Plaintiffs dismiss Defendants' offer of pro bono counsel as a calculated
The Court finds it significant that Plaintiffs themselves define what they consider to be adequate representation. Plaintiffs ask that the representative (a "Qualified Representative") meet five criteria, including that he or she: "(1) be obligated to provide zealous representation; (2) be subject to sanction by the EOIR for ineffective assistance; (3) be free of any conflicts of interest; (4) have adequate knowledge and information to provide representation at least as competent as that provided by a detainee with ample time, motivation, and access to legal materials; and (5) maintain confidentiality of information." (Id.) The Court finds that a Qualified Representative would be a reasonable accommodation for Plaintiffs whether he or she is performing the services pro bono or at Defendants' expense.
In view of the circumstances presented by Plaintiffs' cases, Plaintiffs' definition of a Qualified Representative, and Defendants' apparent offer of counsel that meet such criteria, the Court finds that it is a reasonable accommodation for Defendants to provide a Qualified Representative(s) to represent Plaintiffs in the entirety of their immigration proceedings, whether such Qualified Representative is performing the services pro bono or at Defendants' expense.
Plaintiffs also contend that they are likely to prevail in their quest for appointed counsel based upon the Due Process Clause. They analogize their need for appointed counsel to the recognized right to translation services in removal proceedings. They point out that the Due Process Clause applies to deportation hearings and that deportation proceedings violate due process if the alien does not receive a "full and fair" hearing and suffers prejudice as a result. Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir.2010). The Ninth Circuit has held that "a competent translation is fundamental to a full and fair hearing" and that "an incorrect or incomplete transaction is the functional equivalent of no translation." Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th Cir.2000).
In light of the Court's ruling under the Rehabilitation Act, however, the Court need not, and does not, address the merits of Plaintiffs' Due Process claims at this time.
Plaintiffs also contend that they are entitled to a custody hearing at which Defendants will bear the burden of showing that further detention is justified under 8 U.S.C. § 1226(c). Section 1226(c) only authorizes mandatory detention where immigration proceedings are "expeditious."
"A statute permitting indefinite detention of an alien would raise a serious constitutional problem." Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Supreme Court has estimated the mandatory detention period under Section 1226(c) to last "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."
In this case, both Plaintiffs have been held pursuant to the mandatory detention authority under Section 1226(c) for longer than the presumptively reasonable six months. Thus, their detention has ceased to be mandatory and is now deemed discretionary under Section 1226(a). See Rodriguez, 591 F.3d at 1116. In light of the Court's ruling on Plaintiffs' Motion, the Court finds that for both Plaintiffs, there is not "significant likelihood of removal in the reasonably foreseeable future." Plaintiffs are therefore entitled to a custody hearing under Section 1226(a) at which Defendants must demonstrate that further detention is necessary.
Plaintiffs argue that unless counsel is provided, Plaintiffs could be found removable and subsequently deported without ever having an opportunity to litigate the issues that they raise in this lawsuit. If deported, Plaintiffs claim that they could face persecution in their home countries due to their mental disabilities. Plaintiffs further argue that without a custody hearing, Plaintiffs are likely to remain detained for a lengthy and indeterminate period pending their BIA appeals. Plaintiffs also contend that the cost of providing an attorney to represent them is modest if such representation helps to expedite proceedings and thus minimize the cost of detaining Plaintiffs. They point out that because Defendants regularly conduct custody hearings, holding two custody hearings for Plaintiffs is not a significant burden to Defendants.
Defendants neither contest Plaintiffs' position regarding irreparable harm nor present any evidence to the contrary. In fact, in a Notice of Clarification filed on December 20, 2010, Defendants clarified that, contrary to the position they took at the December 8 Hearing, the time period for completing removals is not dependent on the expiration of the 30-day period for appeals taken from the BIA to the Ninth Circuit Court of Appeals. [Doc. # 101.] Indeed, 8 C.F.R. § 241.33 provides that "once an order of deportation becomes final, an alien shall be taken into custody and the order shall be executed," and "the order shall be executed no sooner than 72 hours after service of the decision, regardless of whether the alien is in Service custody." Thus, Plaintiffs become deportable within 72 hours after the BIA renders its decision.
Finally, the Rehabilitation Act embodies Congress' response to its finding that "individuals with disabilities continually encounter various forms of discrimination in such critical areas as . . . public accommodations. . . and public services" and that "the goals of the Nation properly include
As discussed supra, while a mandatory injunction is generally disfavored, the Court is nevertheless empowered to grant a mandatory injunction when prohibitory orders are otherwise ineffective or inadequate. See, e.g., D.R. v. Antelope Valley Union High School District, 746 F.Supp.2d 1132, 2010 WL 4262047 (C.D.Cal.2010) (granting mandatory injunction to provide disabled plaintiff with elevator key as a reasonable accommodation). For the reasons discussed supra, any relief short of providing a Qualified Representative for Plaintiffs in this case would be both ineffective and inadequate in providing them with meaningful access to participate in their immigration proceedings. As the Court finds that the law and facts clearly favor Plaintiffs and that the potential for irreparable harm cannot be remedied by a later award of damages, the Court also finds that Plaintiffs have met their burden of demonstrating the need for a mandatory injunction.
In light of the foregoing:
(1) The Court GRANTS Plaintiffs' Motion for a Preliminary Injunction as follows:
(a) Pending a trial on the merits, Defendants, and their officers, agents, servants, employees and attorneys, and all those who are in active concert or participation with them, are hereby enjoined from pursuing further immigration proceedings against Plaintiffs until such time as (i) Plaintiffs are afforded a Qualified Representative(s) who is willing and able to represent Plaintiffs during all phases of their immigration proceedings, including appeals and/or custody hearings, whether pro bono or at Defendants' expense, and (ii) after the implementation of a briefing schedule to be mutually agreed upon by the parties in the underlying BIA proceedings;
(b) Pending a trial on the merits, Defendants, and their officers, agents, servants, employees and attorneys, and all those who are in active concert or participation with them, are hereby enjoined from detaining Plaintiffs Martinez and Khukhryanskiy under 8 U.S.C. § 1226(c) unless, within 30 days of this Order, they provide both Plaintiffs with a bond hearing before an Immigration Judge with the authority to order their release on conditions of supervision, unless the Government shows that Plaintiffs' ongoing detention is justified.
(2) The Court waives the bond requirement. See, e.g., Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.1999) (nominal security not an abuse of discretion where "vast majority of aliens [affected by class action] were very poor"); Cal. ex rel. Van De Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325 (9th Cir.1985) ("[t]he district court has discretion to dispense with the security requirement, or to request mere nominal security, where requiring security would effectively deny access to judicial review").
(3) Due to privacy considerations, this Order shall be filed under seal. Within 14 days from the date of this Order, the parties will meet and confer regarding which portions of the Order they propose to be redacted such that a redacted version of the Order may be filed. The parties
IT IS SO ORDERED.
(BIA Practice Manual, Section 2.3(a).)
(BIA Practice Manual, Section 5.9(h)(i).)
8 U.S.C. § 1229a(b)(4)(A) (emphasis added).
28 C.F.R. § 35.130(b)(7).
8 C.F.R. § 1240.10(c) (emphasis added).
8 C.F.R. § 103.5a(c)(2)(ii).
8 U.S.C. § 1226(c).
