Xirum v. U.S. Immigration & Customs Enf't (ICE)

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MARIBEL XIRUM, JAVIER JAIMES JAIMES, BAIJEBO TOE, Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE), U.S. DEPARTMENT OF HOMELAND SECURITY DHS, ALEJANDRO MAYORKAS under the title of Secretary of DHS, TAE JOHNSON under the title of Acting Director of ICE, MONICA S. BURKE under the title of ICE Acting Assistant Director of Custody Management;, RICARDO A. WONG under the title of ICE Deputy Assistant Director, Oversight Compliance and Acquisition Division, SYLVIE RENDA under the title of Acting Field Office Director of the ICE Chicago Field Office, TRAVIS GRAHAM under the title of ICE Officer, ANGELINA RAMOS under the title of ICE Officer, VIRGINIA SUTTER under the title of ICE Officer, CLAY COUNTY, INDIANA, CLAY COUNTY COUNCIL, CLAY COUNTY SHERIFF'S OFFICE, PAUL B. HARDEN under the title of Clay County Sheriff, JACKIE MITCHELL under the title of Clay County Council Member, JASON BRITTON under the title of Clay County Council Member, JASON THOMAS under the title of Clay County Council Member, LARRY J. MOSS under the title of Clay County Council Member, JOHN NICOSON under the title of Clay County Council Member, DAVID AMERMAN under the title of Clay County Council Member, PATRICIA HEFFNER under the title of Clay County Council Member, BRYAN ALLENDER under the title of Clay County Commissioner, MARTY HEFFNER under the title of Clay County Commissioner, PAUL SINDERS under the title of President of the Clay County Board of Commissioner, ELIZABETH HUGHETT under the title of Clay County Sergeants and ICE Contract Coordinator, DAVID PARKER under the title of Clay County Sergeants and ICE Contract Coordinator, JASE GLASSBURN under the title of Clay County Sergeants and ICE Contract Coordinator, JENNIFER M. FLATNER under the title of Clay County Auditor, DEBRA JAMES under the title of Clay County Treasurer, Defendants.

No. 1:22-cv-00801-TWP-KMB

United States District Court, S.D. Indiana, Indianapolis Division

March 29, 2023

ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTIONS TO DISMISS

Hon Tanya Walton Pratt, United States District Court Chief Judge

This matter is before the Court on Motions to Dismiss filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) by Defendants U.S. Immigration and Customs Enforcement ("ICE") (Filing No. 60), and by the nineteen Defendants who work for or otherwise represent Clay County, Indiana ("Clay County") (together, "Defendants") (Filing No. 56). Plaintiffs Maribel Xirum, Javier Jaimes, and Baijebo Toe (together, "Plaintiffs") are noncitizens who are or were detained at the Clay County Jail in Brazil, Indiana (the "Jail") pursuant to an Intergovernmental Service Agreement (the "Agreement") between ICE and Clay County. Plaintiffs initiated this action challenging ICE's authority to continue detaining them at the Jail pursuant to the Agreement, ICE's authority to continue paying federal funds to Clay County for the detention of noncitizens, and Clay County's discretion to use the federal funds for purposes other than the care and safekeeping of noncitizens. Plaintiffs filed a Class Action Complaint seeking a variety of declaratory and injunctive relief that all serve to stop ICE from continuing to house detainees at the Jail and to prevent ICE from paying any more federal detention funds to Clay County. For the following reasons, the Court grants in part and denies in part ICE's Motion to Dismiss and grants Clay County's Motion to Dismiss.

I. BACKGROUND

The following facts are not necessarily objectively true, but, as required when reviewing a motion to dismiss, the Court accepts as true all factual allegations in the Amended Complaint and draws all inferences in favor of Plaintiffs as the non-moving parties.^[1]See Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).

A. The Agreement

In 2006, the United States Marshals Service (the "Marshals Service") entered into the Agreement with Clay County to house individuals in federal custody at the Jail (Filing No. 1 at ¶ 61). Under the Agreement, Clay County would receive a per diem payment based on the number of housed individuals. Id. at ¶ 62. In 2013, ICE issued an addendum to the Agreement that allowed it to send, and Clay County to detain, noncitizens at the Jail. The Jail began housing noncitizen detainees that same year Id. at ¶ 66. ICE pays Clay County more than one million dollars each year to detain noncitizens like the Plaintiffs. Id. at ¶ 4.

The first page of the Agreement states that the Agreement "is for the housing, safekeeping, and subsistence of federal prisoners, including guard/transportation services to medical facility and U.S. Courthouse, in accordance with the contents set forth herein" (Filing No. 1-1 at 2). Article I, titled "PURPOSE AND SECURITY PROVIDED," states:

[t]he purpose of this Intergovernmental Service Agreement (IGA) is to establish a formal binding relationship between the United States Marshals Service (USMS) and other federal user agencies (the Federal Government) and Clay County Justice Center (the Local Government) for the detention of persons charged with or convicted of violations of federal law or held as material witnesses (federal prisoners) at the Clay County Justice Center (the facility).

(Filing No. 75-2 at 3, Art. I). Under Article I, Clay County agreed "to accept and provide for the secure custody, care and safekeeping of federal prisoners in accordance with federal, state, and local law, standards, policies, procedures, or court orders". Id.

The Agreement contains provisions regarding the receiving, discharge, and transportation of detainees and the calculation, billing, and payment of funds to Clay County. It also requires that Clay County provide detainees certain "mandatory minimum conditions of confinement," which include: adequately trained staff; surveillance of detainees; three meals per day; twenty-four-hour emergency medical care; adequate access to prescription medications; smoke and fire detection systems; and water supply and waste disposal programs Id. at 8, Art. XIII.

The Agreement incorporates laws and regulations limiting the purpose for which ICE may enter into detention contracts and limiting the use of federal funds paid pursuant to those contracts. The incorporated laws and regulations at issue here are the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1557 ("INA"), the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R., Part 200 ("UAR"),^[2] ICE's Performance-Based National Detention Standards ("PBNDS"), and the "Two Strikes Mandate".

1. The Immigration and Nationality Act (INA)

The INA permits ICE to enter into detention contracts with non-federal entities, such as the Agreement with Clay County, and to make payments to cooperating entities under those contracts. The INA restricts both the purpose of the detention contracts and the use of federal funds paid under the contracts. ICE may only enter into detention contracts "for the necessary construction, physical renovation, acquisition of equipment, supplies or materials required to establish acceptable conditions of confinement and detention services." 8 U.S.C. § 1103(a)(11)(B). And ICE may only "make payments" from federal funds allocated to ICE "for necessary clothing, medical care, necessary guard hire, and the housing, care, and security of persons detained" under one of ICE's detention contracts. Id. at § (a)(11)(A).

2. The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (UAR)

As described by Plaintiffs, "[t]he UAR sets forth mandatory cost-allowance, accounting, and auditing requirements for federal and state agencies with respect to entering and maintaining agreements" (Filing No. 1 at ¶ 63). The UAR requires federal agencies paying federal funds to non-federal entities to "manage and administer the Federal award in a manner so as to ensure that Federal funding is expended and associated programs are implemented in full accordance with the U.S. Constitution, Federal Law, and public policy requirements." 2. C.F.R. §§ 200.1, 200.300(a).

The UAR also requires federal funding recipients to "[e]stablish and maintain effective internal control over the Federal award that provides reasonable assurance that the non-Federal entity is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award." Id. § 200.303(a).

3. The Performance-Based National Detention Standards (PBNDS)

Non-federal entities that enter into detention contracts with ICE are required to comply with ICE's PBNDS, which set forth several categories of detention standards, each with component parts used to measure compliance (Filing No. 1 at ¶ 89). The PBNDS includes, for example, standards for: Environmental Health and Safety, Personal Hygiene, Food Service, Medical Care, Correspondence and Other Mail, Recreation, Religious Practices, Telephone Access, Special Management Units, the Use of Force and Restraints, Sexual Abuse and Assault Prevention and Intervention, and Law Libraries and Legal Materials. These standards are described in greater detail in the Complaint. Id. at ¶¶ 97-175.

4. The Two Strikes Mandate

As part of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 ("Appropriations Act"), Congress restricted ICE's expenditure of federal detention funds to ensure that contracted facilities comply with the PBNDS. Pub. L. No. 110-329, Div. D, Tit. II (Sep. 30, 2008), 122 Stat. 3574. Congress provided that no federal detention funds "may be used to continue any contract for the provision of detention services if the two most recent overall performance evaluations received by the contracted facility are less than '...