Rosa v. McAleenan

583 F.Supp.3d 850

Hector Sigifredo Rivera ROSA, et al., Petitioners,

v.Kevin K. MCALEENAN, et al., Respondents.

Jairo Alexander Gonzalez-Recinos, et al., Petitioners,

v.Kevin K. McAleenan, et al., Respondents.

Javier Ernesto Giron Monterroza, et al., Petitioners,

v.Kevin K. McAleenan, et al., Respondents.

Santos Zuniga, et al., Petitioners,

v.Kevin K. McAleenan, et al., Respondents.

Bryan Lopez-Lopez, et al., Petitioners,

v.Kevin K. McAleenan, et al., Respondents.

Civil Action No. 1:19-CV-00138 (Lead)

Civil Action No. 1:19-CV-00095 (Member)

Civil Action No. 1:19-CV-00103 (Member)

Civil Action No. 1:19-CV-00118 (Member)

Civil Action No. 1:19-CV-00126 (Member)

United States District Court, S.D. Texas, Brownsville Division.

Signed October 15, 2019

Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, Efren Carlos Olivares, Karla Marisol Vargas, South Texas Civil Rights Project, Alamo, TX, Jaime M. Diez, Jones and Crane, Brownsville, TX, John Brent Beckert, Pro Hac Vice, Luis Campos, Pro Hac Vice, Haynes and Boone, Dallas, TX, Manuel E. Solis, Attorney at Law, Houston, TX, Thelma Odilia Garcia, Attorney at Law, Harlingen, TX, Wesley Darwin Lewis, Haynes and Boone LLP, Austin, TX, for Petitioners Jairo Alexander Gonzalez Recinos, Gerardo Henrique Herrera Rivera, Kevin Eduardo Rizzo Ruano, Jonathan Fernando Beltran Rizo, William Anthony Perez Valle, Hugo Flandez, Bryan Lopez-Lopez, William Abel Santay-Son, Hector Sigifredo Rivera Rosa, Juan Carlos Acensio Y. Acensio, Jose Neftali Arias Hernandez, Javier Alexander Reyes Vigil in 1:19-CV-00138.

Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, Nancy Lynn Masso, Office of U.S. Attorney, Brownsville, TX, Annalisa L. Cravens, United States Attorney's Office, Houston, TX, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, Eric Joel Drootman, Dept. of Homeland Security US Customs and Border Protection, Edinburg, TX, Michael Anthony Celone, Pro Hac Vice, US Dept. of Justice - Civil Division, Washington, DC, for Respondents Kevin K. McAleenan, Carla Provost, Rodolfo Karisch, Michael J. Pitts in 1:19-CV-00138.

Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, Nancy Lynn Masso, Office of U.S. Attorney, Brownsville, TX, Annalisa L. Cravens, United States Attorney's Office, Houston, TX, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, Eric Joel Drootman, Dept. of Homeland Security US Customs and Border Protection, Edinburg, TX, for Respondent John P. Sanders in 1:19-CV-00138.

Thomas Paul Buser-Clancy, ACLU of Texas, Houston, TX, for Amicus ACLU Foundation of Texas in 1:19-CV-00138.

Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, Jaime M. Diez, Jones and Crane, Brownsville, TX, John Brent Beckert, Pro Hac Vice, Luis Campos, Pro Hac Vice, Haynes and Boone, Dallas, TX, Manuel E. Solis, Attorney at Law, Houston, TX, Thelma Odilia Garcia, Attorney at Law, Harlingen, TX, Wesley Darwin Lewis, Haynes and Boone LLP, Austin, TX, for Petitioners in 1:19-CV-00095.

Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, Nancy Lynn Masso, Office of U.S. Attorney, Brownsville, TX, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, for Respondents in 1:19-CV-00095, 1:19-CV-00103.

Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, Jaime M. Diez, Jones and Crane, Brownsville, TX, Manuel E. Solis, Attorney at Law, Houston, TX, Thelma Odilia Garcia, Attorney at Law, Harlingen, TX, Wesley Darwin Lewis, Haynes and Boone LLP, Austin, TX, for Petitioners in 1:19-CV-00103.

Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, Jaime M. Diez, Jones and Crane, Brownsville, TX, Manuel E. Solis, Attorney at Law, Houston, TX, Thelma Odilia Garcia, Attorney at Law, Harlingen, TX, Wesley Darwin Lewis, Haynes and Boone LLP, Austin, TX, for Petitioners in 1:19-CV-00118.

Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, for Respondents in 1:19-CV-00118, 1:19-CV-00126.

Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, Efren Carlos Olivares, South Texas Civil Rights Project, Alamo, TX, Jaime M. Diez, Jones and Crane, Brownsville, TX, John Brent Beckert, Pro Hac Vice, Luis Campos, Pro Hac Vice, Haynes and Boone, Dallas, TX, Thelma Odilia Garcia, Attorney at Law, Harlingen, TX, Wesley Darwin Lewis, Haynes and Boone LLP, Austin, TX, for Petitioners in 1:19-CV-00126.

ORDER

Fernando Rodriguez, Jr., United States District Judge United States Customs and Border Protection (CBP) detained sixteen aliens for being in the United States illegally and kept them in its custody for weeks before transferring them to the custody of Immigration and Customs Enforcement (ICE). CBP allegedly maintained these aliens in abhorrent conditions and without access to, or contact with, counsel or family. The detained aliens filed five lawsuits, which have now been consolidated into this action, alleging a petition for writ of habeas corpus and causes of action based on alleged violations of the Administrative Procedure Act and the Fifth Amendment of the United States Constitution.¹ Petitioners advance their claims in their individual capacities and as putative class representatives of similarly situated aliens in CBP custody.²

Petitioners currently seek a preliminary injunction that would require Respondents to, among other things, grant detained aliens access to counsel while in CBP custody, improve the conditions at CBP facilities, and transfer all aliens from CBP custody to ICE custody within seventy-two hours, or otherwise release the aliens on bond or with electronic monitoring.

In each of the individual lawsuits, the Court denied the request for a temporary restraining order and scheduled a preliminary injunction hearing. Following consolidation, Petitioners filed their Second Amended Petition,³ and then filed their Motion for Preliminary Injunction.⁴ On September 5 and 6, 2019, the Court held a two-day evidentiary hearing during which 11 witnesses testified.⁵ The record contains numerous exhibits and several briefs, including one from amici American Civil Liberties Union Foundation of Texas and the American Civil Liberties Union Foundation.⁶

The Court has considered the substantial record and the applicable law. For the following reasons, the Court finds that the Motion for Preliminary Injunction should be denied.

I. Findings of Fact

Based on the exhibits in the record and the testimony the parties presented at the preliminary injunction hearing, the Court makes the following findings of fact.⁷

A. Standard Procedures for Detained Aliens⁸

United States Customs and Border Protection (CBP), a component of the Department of Homeland Security (DHS), safeguards the nation's borders. The United States Border Patrol serves as CBP's law enforcement office. By law, Border Patrol's primary responsibilities include "interdicting persons attempting to illegally enter or exit the United States".⁹ CBP detains individuals who cross "the border illegally[ ], process[es] them and then turn[s] them over to Immigration and Customs Enforcement [ICE]".¹⁰ (In this Order, the term CBP includes the actions of Border Patrol.)

When CBP detains an alien in the field, an initial medical field screening occurs.¹¹ If an alien requires immediate medical attention, CBP takes the alien to the closest medical facility.¹² Otherwise, CBP transports the individual to a CBP station. This lawsuit concerns CBP stations in the Texas counties of Cameron, Willacy, Starr, and Hidalgo. As of April 2019, within those counties, CBP maintained a Centralized Processing Center in McAllen and stations in Rio Grande City, McAllen, Weslaco, Harlingen, Fort Brown, and Brownsville (collectively, the "CBP Stations").¹³ Until the Spring of 2019, CBP transported most aliens to the McAllen Centralized Processing Center, which has a maximum capacity of 1,500 aliens.¹⁴

When aliens arrive at a CBP Station, they receive another medical examination. If medical personnel determine that an alien requires care, or if the alien expresses medical needs, CBP transports the alien to a medical center or has medical personnel at the station address the issue.¹⁵

For aliens who clear the medical examination, CBP conducts an initial interview, known as vetting or intake.¹⁶ As part of this vetting, an immigration officer interviews the alien to obtain background information, biometrics, and criminal history.¹⁷ This process enables CBP to confirm the identity of the alien.¹⁸ The immigration officer will inform the alien of the right to have his country's consular office notified of his arrest or detention, and this notification is documented in a Consular Notification Form, which each alien signs.¹⁹ For detainees from Spanish-speaking countries, CBP uses a Spanish language version of the form and provides a translator. The immigration officer will then designate the alien for expedited removal or for removal proceedings.

1. Expedited Removal

Expedited removal applies when an alien found inadmissible by an immigration officer is encountered within 100 miles of the border and cannot show he was physically present in the United States continuously for the 14 days before being encountered.²⁰ Under expedited removal, an immigration officer may "order the alien removed from the United States without further hearing or review."²¹ Before removal, however, the immigration officer poses various questions to the alien, including the four in Form I-867B:

Why did you leave your home country or country of last residence?

Do you have any fear or concern about being returned to your home country or being removed from the United States?

Would you be harmed if you are returned to your home country or country of last residence?

Do you have any questions or is there anything else you would like to add?²² The immigration officer records the responses on the form, and requests that the alien sign it under oath, confirming...