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Jose Jimenez Moreno and Maria Jose Lopez, On Behalf of Themselves and All Others Similarly Situated v. Janet Napolitano

November 30, 2012

JOSE JIMENEZ MORENO AND MARIA JOSE LOPEZ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
JANET NAPOLITANO, SECRETARY OF THE JUDGE JOHN Z. LEE DEPARTMENT OF HOMELAND SECURITY (DHS); JOHN MORTON, DIRECTOR OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) ) AND REMOVAL OPERATIONS (ERO); DAVID C. PALMATIER, UNIT CHIEF, ICE/ERO LAW ENFORCEMENT SUPPORT CENTER (LESC);
RICARDO WONG, ICE/ERO DIRECTOR, CHICAGO FIELD OFFICE, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: John Z. Lee U.S. District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Jose Jimenez Moreno and Maria Jose Lopez ("Plaintiffs"), on behalf of themselves and similarly situated individuals, have sued Janet Napolitano, the Secretary of the Department of Homeland Security ("DHS"), and other federal officials responsible for the U.S. Immigration and Custom Enforcement ("ICE") division of the DHS. Plaintiffs allege that ICE's assertion of authority to instruct federal, state, and local law enforcement agencies ("LEAs") to continue the detention of individuals in the LEA's jails so that ICE can investigate their immigration status is a violation of ICE's statutory authority under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706(2)(A)--(D), and the Immigration and Naturalization Act ("INA"), 8 U.S.C. §§ 1226(a), 1357(a)(2), and 1357(d), as well as a violation of Plaintiffs' constitutional rights under the Fourth, Fifth, and Tenth Amendments. Plaintiffs seek declaratory and injunctive relief, or, in the alternative, habeas corpus relief. Before the Court is Defendants' motion to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction. For the reasons provided herein, the Court denies Defendants' motion.

Facts

ICE is the division of DHS charged with identifying and removing unlawfully present aliens, including criminal aliens, from the United States. (Corrected Compl. ¶ 15.) As part of carrying out that task, ICE's division of Enforcement and Removal ("ERO") issues Form I-247 immigration detainers to federal, state, and local LEAs. (Id.) These detainers contain two main sections. (Id., Ex. A.) The first section advises an LEA that DHS has taken an action concerning an individual in the LEA's custody. (Id.) The detainer lists four potential actions undertaken by DHS: (1) DHS has initiated an investigation to determine whether the individual is subject to removal from the United States; (2) DHS has issued a Notice to Appear or other charging document initiating removal proceedings; (3) DHS has issued a warrant of arrest in removal proceedings; and (4) DHS has ordered deportation or removal from the United States. (Id.) ICE indicates which actions are applicable by marking a box next to the action. (Id.)

The second section of the detainer requests that the LEA take certain actions. (Id.) DHS can request the LEA to: (1) maintain custody of an individual for a period not to exceed forty-eight hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to assume custody of the individual pursuant to 8 CFR § 287.7; (2) sign and return a copy of the form; (3) notify DHS of the time of release at least 30 days prior to release or as far in advance as possible; (4) notify DHS in the event of the inmate's death or transfer to another institution; and (5) cancel the detainer. (Id.) Like the first section, ICE indicates what is requested of the LEA by marking a box next to the appropriate action(s). (Id.)

On March 21, 2011, Plaintiff Jose Jimenez Moreno was arrested in Rockford, Illinois and taken into state custody. (Id. ¶ 13.) The next day, he was indicted by the State of Illinois for two felonies: a cocaine charge and threatening a public official. (Defs.' Mot. Dismiss 2.) That same day, the ICE Chicago Area of Responsibility ("AOR") issued a Form I-247 immigration detainer against Moreno to the Winnebago County Sheriff. (Corrected Compl. ¶ 15, Ex. A.) In the first section of the detainer, DHS advised the Sheriff that an "[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States." (Id.) In the second section, DHS requested that the Sheriff: (1) maintain custody of Moreno pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Moreno; (2) complete, sign, and return the form; (3) notify DHS at least 30 days prior to Moreno's release or as soon as possible; and (4) notify DHS in the event of Moreno's death or transfer to another institution. (Id.)

Similarly, in November 2010, Plaintiff Maria Jose Lopez pleaded guilty to the federal offense "misprision of a felony." (Id. ¶ 14.) On January 25, 2011, she surrendered herself to the Federal Correctional Institution ("FCI") in Tallahassee, Florida to serve a year-long sentence. (Id.) On February 1, 2011, ICE's Chicago AOR issued an I-247 immigration detainer against Lopez to the FCI. (Id., Ex. B.) In the first section of the detainer, DHS advised the FCI that an "[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States." (Id.) In the second section, DHS requested that the FCI: (1) maintain custody of Lopez pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Lopez; (2) notify DHS at least 30 days prior to Lopez's release or as soon as possible; and (3) notify DHS in the event of Lopez's death or transfer to another institution. (Id.)

In August 2011, Moreno and Lopez sued DHS Secretary, Janet Napolitano; ICE Director, John Morton; the Unit Chief for ICE/ERO's Law Enforcement Support Center, David C. Palmatier; and the Field Officer Director of the ICE/ERO Chicago AOR, Ricardo Wong. (Corrected Compl. ¶¶ 15-18.) Moreno and Lopez simultaneously moved to certify a class under Rule 23. (Id. ¶ 25.) The proposed class includes: [a]ll current and future persons against whom ICE has issued an immigration detainer of the Chicago Area of [R]esponsibility (AOR) where ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA's authority has expired and where ICE has indicated that the basis for the further detention is that ICE has initiated an investigation into the persons' removability, but not including any noncitizen subject to mandatory detention under 8 U.S.C. § 1226(c). (Id.)

In August 2011, ICE lifted the detainer against Moreno. (Pls.' Opp'n Mot. Dismiss 5-6.) On November 22, 2011, ICE lifted the detainer against Lopez and she was released from custody. (Id.)

On November 23, 2011, two additional individuals subject to I-247 detainers, Sergey Mayorov and Nicholas Taylor-Jones, sought leave to intervene in this action. (Id. at 9.) Several days later, at a hearing on the motion to intervene, Defendants announced that ICE had also lifted the detainers against the intervening plaintiffs. (Id.) Defendants now move to dismiss Plaintiffs' claims for lack of subject matter jurisdiction.

Discussion

Pursuant to Rule 12(b)(1), a court may dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). In addition, the Court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. Id.

I. Article III Standing

Defendants argue that Plaintiffs' Fourth and Fifth Amendment claims should be dismissed because Plaintiffs lack standing to bring them under Article III of the United States Constitution.*fn1 (Defs.' Mot. Dismiss 6-7.) Article III of the federal constitution limits the jurisdiction of the federal courts to hearing "cases" or "controversies." Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). An essential component of Article III's case-or-controversy requirement is the doctrine of standing. Id. at 560; Apex Digital, Inc., v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). "In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or particular issues." Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Whether a plaintiff has standing "in no way depends on the merits of the plaintiff's [claim]." Warth, 422 U.S. at 500; Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012) (courts should not "conflate[] standing with the merits of the case"). To satisfy the standing doctrine, a party seeking to invoke a federal court's jurisdiction must demonstrate three ...

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