United States District Court, N.D. Illinois, Eastern Division
JOSE JIMENEZ MORENO and MARIA JOSE LOPEZ, on behalf of themselves and all others similarly situated, Plaintiffs,
JANET NAPOLITANO, Secretary of the 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.
MEMORANDUM OPINION AND ORDER
JOHN Z. LEE, District Judge.
Plaintiff Jose Jimenez Moreno was in the custody of the Winnebego County Sheriff when the Immigration and Customs Enforcement Division ("ICE") of the United States Department of Homeland Security ("DHS") issued a Form I-247 immigration detainer requesting that the Sheriff maintain custody of Moreno, upon his release from state custody, for up to forty-eight hours to provide DHS time to assume custody of him. Plaintiff Maria Jose Lopez, who was serving time at a federal correctional center in Tallahassee, Florida, was also the subject of an ICE Form I-247 detainer, requesting that the correctional center maintain custody of her, upon her release, for up to forty-eight hours. Moreno and Lopez filed this lawsuit, on behalf of themselves and other similarly situated individuals, against the Secretary of DHS and other federal officials responsible for ICE, alleging that the issuance of the detainers exceeded 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), and violated their constitutional rights under the Fourth, Fifth, and Tenth Amendments.
Before the Court is Plaintiffs' amended motion for class certification pursuant to Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2). For the reasons provided herein, the Court grants Plaintiffs' motion, but modifies the class definition proposed by Plaintiffs. The Court declines to certify Plaintiffs' proposed sub-class.
I. The I-247 Detainer Form
ICE is the division of DHS charged with identifying and removing unlawfully present aliens from the United States. Am. Compl. ¶ 15. As part of carrying out that task, ICE's division of Enforcement and Removal Operations ("ERO") issues Form I-247 immigration detainers to federal, state, and local law enforcement agencies ("LEAs"). Id. The detainers, which were revised in August 2010, December 2011, and December 2012, contain two main sections. See Pl.'s Mem. Supp. Class Cert., Exs. A, B, C.
The first section advises an LEA that DHS has taken an action concerning an individual in the LEA's custody. Id. The August 2010 version of the detainer form, which was issued to Moreno and Lopez, lists four checkboxes ("f00a") corresponding to various actions undertaken by DHS: (1) commencement of an investigation to determine whether the individual is subject to removal from the United States; (2) issuance of a Notice to Appear or other charging document initiating removal proceedings; (3) issuance of a warrant of arrest in removal proceedings; and (4) issuance of an order of deportation or removal from the United States. Id., Ex. A. ICE indicates which of these actions are applicable by checking the box next to the corresponding action. Id. In December 2012, ICE revised the first checkbox to state that ICE has "[d]etermined that there is reason to believe the individual is an alien subject to removal from the United States." Id., Ex. C.
The second section of the detainer form requests that the LEA take certain actions. See id., Exs. A, B, C. 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 thirty 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 action it requests the LEA to take by checking a box next to the appropriate action(s). Id.
In December 2011, ICE modified the detainer form to request that the LEA provide a copy of the detainer form to the detained individual. Id., Exs. B, C. ICE also added a section entitled "Notice to the Detainee" and included a telephone number by which the individual could contact ICE if he or she believed the detainer to be improper. Id.
II. The Named Plaintiffs
In November 2010, Plaintiff Maria Lopez pleaded guilty to the federal offense of "misprision of a felony." Am. Compl. ¶ 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 Area of Responsibility ("AOR") issued an I-247 immigration detainer against Lopez to the FCI. Id., Ex. A.
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., Ex. A. In the second section of the detainer, 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 thirty 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., Ex. A.
On March 21, 2011, Plaintiff Jose 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: cocaine possession and threatening a public official. Defs.' Opp'n 4. That same day, ICE's Chicago AOR issued a Form I-247 immigration detainer against Moreno to the Winnebago County Sheriff. Am. Compl. ¶ 13, Ex. A.
The first section of the detainer advised the Sheriff that an "[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States." Id, Ex. A. 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 thirty 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., Ex. A.
In August 2011, after this case was filed, ICE lifted the detainer against Moreno. Defs.' Opp'n 5. On November 22, 2011, ICE lifted the detainer against Lopez. Id. 6.
III. Plaintiffs' Proposed Class Definitions
In their amended motion for class certification, Plaintiffs request that the Court certify the following class:
All current and future persons against whom ICE has an active immigration detainer that was issued out of its Chicago Area of Responsibility (AOR) where ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA's detention authority has expired and where ICE has not served a Notice to Appear or other charging document, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal.
Pls.' Am. Mot. Class Cert. 5.
Moreno also seeks to represent a sub-class consisting of:
Members of the primary class who have had detainers issued against them while they are in state or local LEA [law enforcement agency] custody and where ICE has instructed their further detention pursuant to 8 C.F.R. § 287.7.