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October 26, 2015 Sent via Electronic Mail and First-Class US Mail TO: By E-mail: Jeh Charles Johnson Secretary of Homeland Security, United States Department of Homeland Security ([email protected])

Alejandro N. Mayorkas Deputy Secretary, United States Department of Homeland Security ([email protected])

Megan H. Mack Officer for Civil Rights and Civil Liberties Office for Civil Rights and Civil Liberties, United States Department of Homeland Security ([email protected])

Mary Giovagnoli Deputy Assistant Secretary Office of Immigration and Border Security Office of Policy United States Department of Homeland Security ([email protected])

Sarah Saldaña, Director United States Immigration and Customs Enforcement ([email protected])

Gwen Keyes-Fleming Principal Legal Advisor United States Immigration and Customs Enforcement ([email protected])

Andrew Lorenzen-Strait Deputy Assistant Director Custody Programs Division, Enforcement and Removal Operations (ERO) ([email protected])

Richard Rocha Communications Advisor United States Immigration and Customs Enforcement ([email protected])

Felicia A. Escobar Special Assistant to the President for Immigration Policy Domestic Policy Council, Executive Office of the President ([email protected])

Manar Waheed Deputy Policy Director for Immigration Domestic Policy Council, Executive Office of the President ([email protected])

Juan Osuna Executive Office of Immigration Review ([email protected])

October 26, 2015 Re: Department of Homeland Security’s Pattern & Practice of

Improperly Denying Parole to Bangladeshi Asylum Seekers of 16

By First-Class US Mail: Ms. Loretta Lynch, Attorney General Department of Justice U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

John Kerry U.S. Secretary of State U.S. Department of State 2201 C Street NW Washington, DC 20520

FROM: Asian Americans Advancing Justice- Los Angeles 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017

ACLU of Southern California 1313 W. 8th Street #200 Los Angeles, CA 90017

University of California, Irvine, School of Law Immigrant Rights Clinic 401 E. Peltason Dr. Irvine, CA 92612

Public Law Center 601 W. Civic Center Dr. Santa Ana, CA 92701

Pennsylvania Immigration Resource Center 112 Pleasant Acres Rd. York, PA 17402

East Bay Sanctuary Covenant 2362 Bancroft Way Berkeley, CA 94704

Northwest Immigrant Rights Project 615 2nd Ave., #400 Seattle, WA 98104

National Immigrant Rights Project for the National Lawyers Guild 14 Beacon St, Suite 602 Boston, MA 02108

Florence Immigrant and Refugee Rights Project 300 S. Main St. Florence, AZ 85132

Public Counsel 610 S. Ardmore Ave. Los Angeles, CA 90005

National Immigrant Justice Center 208 S. La Salle St., Suite 1300 Chicago, IL 60604

Rocky Mountain Immigrant Advocacy Network 3489 W. 72nd Ave., #211 Westminister, CO 80030

Council on American-Islamic Relations 453 New Jersey Ave., SE Washington, DC 20003

South Asian Americans Leading Together 6930 Carroll Ave., Suite 506 Takoma Park, MD 20912

DRUM 72-18 Roosevelt Ave. Jackson Heights, NY 11372

Asian Americans Advancing Justice- ALC 55 Columbus Ave. San Francisco, CA 94111



Re: Department of Homeland Security’s Pattern & Practice of Improperly Denying Parole to Bangladeshi Asylum Seekers Dear Secretary Johnson, Attorney General Lynch and Secretary Kerry:

Our organizations write to express our concerns with the Department of Homeland Security’s (“DHS”) pattern and practice of improperly denying parole to Bangladeshi asylum seekers in immigration detention and its unjustified stance that those affiliated with the Bangladesh National Party (“BNP”) are members of a Tier III terrorist organization as defined by the Immigration and Nationality Act. DHS’ position is unfairly affecting Bangladeshi detainees both at the parole stage, where it appears that DHS is systematically issuing denials to Bangladeshi asylum seekers, as well as at the bond hearing stage, where DHS is consistently arguing as a blanket matter that bond should be denied for any Bangladeshi applicant affiliated with the BNP.

In light of the current political unrest in Bangladesh, it appears that many Bangladeshi

asylum seekers have fled to escape persecution due to their affiliation with the BNP, the primary opposition party seeking to regain power. However, since late 2014, DHS’s policy has resulted in a disproportionately high number of Bangladeshi asylum seekers remaining in detention pending consideration of their asylum claims. For example, based on Public Law Center’s meetings with Bangladeshi detainees at the James A. Musick Facility as of several weeks ago, of 23 detainees, it appears that only two have been able to successfully post bond and leave the facility. Similarly, at the Adelanto Detention Facility in Adelanto, California, of 38 Bangladeshi detainees, only three have successfully posted bond and been released. We have heard of similar accounts around the country. We are aware of large numbers of Bangladeshi detainees unjustifiably held by ICE elsewhere in the country as well, including in El Paso, Texas.

For the reasons explained below, we ask that the Department of Homeland Security

refrain from taking the position that the BNP is a Tier III terrorist organization in any pending case—whether in the context of release on parole, bond, or the merits of removal cases. In addition, we ask that the DHS take the following additional steps to ameliorate the harm that its position on this issue has caused, and to ensure that no further such harm occurs in the future.

With respect to the detention of Bangladeshi asylum seekers: 1. reverse any directive or formal or informal guidance instructing parole officers and ICE trial attorneys to systematically deny parole to Bangladeshi detainees, or deny parole to Bangladeshi detainees affiliated with the BNP; 2. reconsider parole determinations for all Bangladeshi asylum seekers who were previously denied parole, and instruct parole officers to apply the correct standards.

With respect to the removal cases of Bangladeshi asylum seekers:



1. submit a statement to all relevant tribunals (whether within the immigration court system or in the federal courts of appeal) that DHS is no longer taking this position in any case where it has asserted that the BNP is a Tier III terrorist organization; and 2. refrain from removing any individuals who were found ineligible for any form of relief in whole or in part on the ground that the BNP is a Tier III terrorist organization until the DHS resolves this issue or, if necessary, until the federal courts have addressed it.

1. Brief History of the BNP and Its Place in Bangladeshi Politics. As mentioned earlier, many of the Bangladeshi asylum seekers claim that they have fled

Bangladesh in order to escape persecution on account of their affiliation with the BNP, which currently is the main opposition party. The Awami League (“AL”), the party currently in power,1 formed the first national government in 1972,2 and the BNP was created as an alternative to the AL.3 The BNP has gained power on numerous occasions since its inception, including most recently between 2001 and 2006.4 During this time, the Bangladeshi government was an ally of the U.S., including on issues related to counterterrorism in the period immediately following the 9/11 terrorist attacks in the U.S.5

The BNP and AL have been engaged in intense rivalry since the 1990s,6 often leading to bouts of political violence.7 Most recently, the parties clashed during the January 2014 elections

1 HUMAN RIGHTS WATCH, DEMOCRACY IN THE CROSSFIRE: OPPOSITION VIOLENCE AND GOVERNMENT ABUSES IN THE 2014 PRE- AND POST- ELECTION PERIOD IN BANGLADESH 10 (2014), available at https://www.hrw.org/sites/default/files/reports/bangladesh0414_ ForUpload.pdf [hereafter DEMOCRACY IN THE CROSSFIRE]. 2 See INT’L CRISIS GRP., MAPPING BANGLADESH’S POLITICAL CRISIS 3 (2015), available at http://www.crisisgroup.org/~/media/Files/asia/south-asia/bangladesh/264-mapping-bangladesh-s-political-crisis.pdf. 3 Id. 4 Id. at 4 (second election under the caretaker system in October 2001 returned the BNP to power). 5 See, e.g., OFFICE OF THE COORDINATOR FOR COUNTERTERRORISM, U.S. DEP’T OF STATE, 2004 COUNTRY REPORTS ON TERRORISM 72-73 (2005), available at http://www.state.gov/documents/organization/45322.pdf (noting that in 2004, Bangladesh supported the global war on terror and that the United States was assisting Bangladesh’s capacity to combat terrorism). 6 INT’L CRISIS GRP., supra note 2, at 4. 7 See, e.g., id. at 6-7, 21-22.



when they could not agree on the appropriate mechanism to hold elections. As a result, the elections were the most violent in the country’s history; there were countrywide strikes, demonstrations, traffic blockades, and attacks on the AL supporters. 8 In response, the government cracked down on the BNP’s strongholds, reportedly torturing, illegally detaining, and extrajudicially killing leaders and activists.9 A Human Rights Watch investigation indicated that people were detained solely because of their affiliation with the BNP, and they were later charged in criminal cases in which they had not been originally named.10 Political violence and human rights violations have continued since the elections.11

2. The Department of Homeland Security’s Stance on BNP Members Seeking Asylum is Unsupported by the Evidence.

Though members of the BNP face a very real and actual threat to their lives, DHS

appears to be denying parole to these asylum seekers for pretextual reasons. At bond hearings that take place after denial at the parole stage, DHS has consistently taken the position that BNP is a Tier III terrorist organization as defined by the Immigration and Nationality Act (“INA”), 8 U.S.C.A. § 1182(a)(3)(B)(vi) (West 2013). The entirety of DHS’ claim is based on its unsupported allegation that the BNP is engaged in “continued terrorist activities as well as their affiliations with Islamic extremist entities including the Jamaat-ul Mujahideen Bangladesh (JMB) and the Lashkar-e-Taiba (LeT).”12 However, this position is belied by both the BNP’s history and DHS’ lack of evidence.

The Government should abandon its arguments concerning the BNP and formally

renounce them in the manner we request above for at least three reasons. First, even assuming that a major political party’s mere “affiliation with” a terrorist organization could justify the classification of that party as itself a terrorist organization, the BNP is not affiliated with any of the alleged terrorist organizations identified by DHS. Second, even if the BNP has an affiliation with a terrorist organization, which there is no absolutely evidence of based on our review of

8 Id. at 6; see also DEMOCRACY IN THE CROSSFIRE, supra note 1, at 2. 9 INT’L CRISIS GRP., supra note 2, at 6-7; see also DEMOCRACY IN THE CROSSFIRE, supra note 1, at 3. 10 DEMOCRACY IN THE CROSSFIRE, supra note 1, at 4. 11 See generally id. 12 See, e.g., Ex. A at 3. Exhibit A is a redacted DHS pre-hearing brief that argues the BNP is a terrorist organization. It is similar to other briefs filed in many cases involving Bangladeshi asylum seekers. See generally Ex. B. Exhibit B is practice advisory created by the National Immigration Project of the National Lawyers Guild with assistance of the ACLU; the practice advisory describes the arguments made by DHS in many cases involving Bangladeshi asylum seekers.



DHS’s filings, under the plain language of the INA a Tier III designation requires that a group have more than a mere “affiliation with” a terrorist organization; it must also provide, inter alia, material support to the organization. See INA, 8 U.S.C.A. § 1182(a)(3)(B). Third, there is no evidence that the BNP itself engages in terrorist activities, even as that term is broadly defined in the statute. Thus, DHS’ allegation that the BNP is a Tier III terrorist organization is wholly unjustified, and it therefore must stop denying parole, asylum, and other protections to Bangladeshi detainees on this basis.

A. DHS’ Submissions Do Not Establish that the BNP, or Its Subgroups, Are Affiliated With Organizations That Engage in Terrorist Activists.

There is no evidence that the BNP is engaged in, and or has a subgroup that engages in,

terrorist activity as described in the INA, 8 U.S.C.A. 1182 §§ 212(a)(3)(B)(iv)(I)-(VI). Specifically, the BNP does not engage in, or have a subgroup that engages in, terrorist activity through the use of “an explosive firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damages to property.”13 Consequently, even assuming for the sake of argument that a Bangladeshi detainee claiming affiliation with BNP provided “material support” to the BNP, that detainee has not provided “material support . . . to a terrorist organization” under the INA, 8 U.S.C.A. § 1182 (a)(3)(B)(iv)(VI)(dd) since the BNP is not itself a terrorist organization.

Though DHS has asserted that the BNP is engaged with Islamic Extremist groups, it has not, and cannot, establish that the BNP is affiliated with “Islamic Extremist groups,” including the JMB, the LeT, and the Harakatul-Jihad-i-Islami Bangladesh (HUJI-B).14

i. The BNP is not affiliated with the JMB.

DHS’ claim that the BNP is affiliated with the JMB is particularly implausible given that, between 2005 and 2006, the BNP-led government cracked down on the JMB, charging, prosecuting, and convicting hundreds of JMB members and its leader.15 DHS has provided no examples where the BNP has supported the JMB, either directly or indirectly, since this crackdown. Furthermore, other than a fleeting reference to a disputed and politically motivated allegation by the current governing party, the AL, concerning the HUJI-B (addressed below in § C.4.a.iii), DHS provides no evidence of any BNP association with the JMB after 2006.16

13 Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)(iii)(V)(b) (West 2013). 14 See generally Ex. A. 15 INT’L CRISIS GROUP, supra note 2, at 11. 16 See Ex. A at 4-6.



Contrary to DHS’s assertion, any tie between the BNP and Jamaat-e-Islami (JeI),

Bangladesh’s largest Islamic political party,17 cannot form a basis for concluding that the BNP provides material support to, or is even affiliated with, JMB. DHS argues that the BNP (then the controlling government party) allowed JeI and Islamic Chatra Shabir (ICS), JeI’s student wing, to reenter Bangladeshi politics, which indicates close ties between these entities.18 However, this action in and of itself does not demonstrate that the BNP provided material support to the JMB in any way, let alone that it did so during any relevant time period. While the JMB has recruited members from ICS and to some extent JeI, DHS’ own evidence clearly states that those recruited were individuals who were “disgruntled with the policies of their leaders.”19

The JeI and the BNP are distinct parties whose relationship is characterized as a “solely political, not ideological alliance, like that between UK Conservatives and Liberal Democrats.”20 Thus, any tie between the BNP and JeI cannot form a basis for concluding that the BNP provides material support to, or is even affiliated with, JMB.

ii. The BNP is not affiliated with the LeT.

DHS has also provided no evidence linking the BNP to the LeT. Instead, they have cited to possible ties between the LeT and the JMB.21 However, given that the BNP is not affiliated with the JMB for the reasons set forth above, there is simply no evidence of a connection between the LeT and the BNP. Moreover, given LeT’s allegiance to Pakistan,22 it is hard to take seriously the unsupported suggestion that the BNP is even affiliated with, let alone supportive of, the LeT. Bangladesh itself was born out of historical opposition to Pakistan, and successfully fought for independence from Pakistan just a few years before the BNP was founded.23

iii. The BNP is not affiliated with the HUJI-B.

DHS has also implied that the BNP is connected to HUJI-B, a Tier I terrorist

17 DEMOCRACY IN THE CROSSFIRE, supra note 1, at 10. 18 Ex. A at 4. 19 INT’L CRISIS GRP., THE THREAT FROM JAMAAT-UL MUJAHIDEEN BANGLADESH 5 (2010), available at http://www.crisisgroup.org/~/media/Files/asia/south-asia/bangladesh/187_ the_threat_from_jamaat_ul_mujahideen_bangladesh. 20 INT’L CRISIS GRP., supra note 2, at 10. 21 See, e.g., Ex. A at 3 (citing to INT’L CRISIS GRP, supra note 19, which states that JMB’s link to LeT is of concern). 22 See INT’L CRISIS GRP., supra note 2, at 24. 23 See Bangladesh Islamist leader Ghulam Azam charged, BRIT. BROADCASTING CORP. (May 13, 2012), available at http://www.bbc.com/news/world-asia-18049515.



organization.24 This implication is entirely premised on unsubstantiated and politically motivated allegations regarding the son of the BNP’s leader, Khaleda Zia.25

As a threshold matter, the fact—even if true—that a single individual related by blood to a leader of the BNP has ties to a terrorist organization would not suffice to establish that a group or subgroup of the party engages in terrorist activity.26

In any event, the charge against Zia’s son cannot serve as a basis for such a finding because it is an entirely political charge that has never been accepted by any court.27 In 2011, the AL issued a warrant for Tarique Rahman, Zia’s son, with aiding and abetting HUJI-B in the attempted assassination of the AL’s leader in 2004.28 In the intervening years, no court has ever substantiated this charge. In fact, the AL similarly charged over 20 other individuals with the same attempted assassination,29 including Zia herself, who was Prime Minister at the time.30 These charges were made as part of the AL’s larger, politically-motivated, anti-BNP campaign.31

Suppression through the use of trumped-up charges presented to the judiciary is not uncommon in Bangladesh. For example, the ruling AL also interfered with the efforts of the Anti-Corruption Commission (ACC), a government agency tasked with investigating corruption. The AL forced the ACC to drop thousands of corruption cases involving the AL, while bringing new charges against Zia and Rahman.32 The Department of State has noted that:

the government subjected the judiciary to political pressure, and cases involving opposition leaders often proceeded in an irregular fashion. Corruption remained a serious problem within the judiciary and was a factor in lengthy delays of trials,

24 See Ex. A at 5. 25 See id. 26 See Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)(vi)(III) (West 2013). 27 INT’L CRISIS GRP., supra note 2, at 13. 28 Farid Ahmed, Bangladesh ex-premier’s son wanted in grenade attack, CNN.COM (July 4, 2011, 1:12 PM), http://www.cnn.com/2011/WORLD/asiapcf/07/04/bangladesh.arrest.warrant/; see also INT’L CRISIS GRP., supra note 2, at 13. 29 Ahmed, supra note 28. 30 INT’L CRISIS GRP., supra note 2, at 13. 31 Id. 32 BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEP’T OF STATE, 2010 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: BANGLADESH 29 (2011), available at http://www.state.gov/documents/organization/160056.pdf.



which were subjected to witness tampering and intimidation of victims.33

In sum, the evidence does not support DHS’ contention that the BNP is a Tier III terrorist group. The BNP is one of the two largest political parties in Bangladesh and previously led a government that cracked down on international and domestic terrorist groups, and it worked closely with the United States to address JMB’s domestic terrorism.34 Neither the JMB nor the HUJI-B are subgroups of the BNP, and they not affiliated with the BNP in any way, shape, or form. Similarly, there are no connections of any kind between the LeT and the BNP.

B. Even if the BNP Were Affiliated with a Terrorist Organization, Mere Affiliation is Not Enough for a Tier III Designation.

Even assuming arguendo that the BNP were affiliated with a terrorist organization,

absent an explicit determination that the BNP solicited funding, recruited individuals for, or provided material support to said organization, the plain language of INA, 8 U.S.C.A. § 1182(a)(3)(B)(vi)(III) (West 2013) forecloses a finding that the BNP is a Tier III terrorist organization.

Under section 1182(a)(3)(B)(vi)(III) of the INA, a Tier III terrorist organization is defined as a “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which [engages in terrorist activity].” The phrase “engage in terrorist activity” is defined in sections 1182(a)(3)(B)(iv)(I-VI); it includes, inter alia, committing and planning terrorist activities, soliciting funds or recruiting individuals for terrorist activities or terrorist organizations, and affording material support to a terrorist organization.

The omission of “affiliation” as a separate criterion within the definitions of terrorist organizations and “engag[ing] in terrorist activity” cannot be understood as accidental, given that Congress knows how to render inadmissible individuals who are merely “affiliated with” a disfavored group.35 Congress codified a ground of inadmissibility based on an “affiliation with

33 BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEP’T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2014: BANGLADESH 21-22 (2014), available at http://www.state.gov/documents/organization/236846.pdf. 34 OFFICE OF THE COORDINATOR FOR COUNTERTERRORISM, U.S. DEP’T OF STATE, 2005 COUNTRY REPORTS ON TERRORISM: SOUTH ASIA OVERVIEW (2006), available at http://www.state.gov/j/ct/rls/crt/2005/64345.htm. The State Department’s 2005 report noted that Bangladesh saw the rise of the JMB during this time, and that the JMB actively engaged in acts of domestic terrorism. However, Prime Minister Zia of the BNP regularly condemned these terrorist acts and renewed bans on the JMB as a terrorist organization. Prime Minister Zia also cooperated with the United States to address these terrorist attacks, drafting a comprehensive anti-money laundering law and strengthening control to ports of entry. Id. 35 See, e.g., Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(D) (West 2013) (rendering inadmissible “[a]ny immigrant who is or has been a member of or affiliated with the



the Communist or any other totalitarian party.”36 In light of that provision, Congress’s decision not to codify an “affiliation with” ground for Tier III groups creates a strong inference that Congress did not intend to impose inadmissibility based on mere affiliation.37 A group’s mere affiliation with a terrorist organization cannot justify classification as a Tier III terrorist organization.

C. DHS’ Submissions Do Not Establish that the BNP Engages in Terrorist Activities.

DHS has not established, and cannot establish, that the BNP has engaged in terrorist

activities by participating in and inciting violence. 38 This assertion is based on a deep misunderstanding of Bangladeshi politics and an incorrect understanding of the nature of the political activity that the BNP advocates.

First, while the BNP has routinely called for strikes and protests, this is a regular feature of Bangladesh’s democracy.39 Calling for strikes and protests is well within the BNP’s rights as a political party and does not define it as a terrorist organization. Other organizations that courts have identified as Tier III terrorist organizations have called for far more explicitly violent actions or held extremist goals, such as kidnapping or a regime change.40 The BNP has never advocated for such actions or held such goals; even in their disagreement with the AL over the

Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign”) (emphasis added). 36 See, e.g., id. 37 See Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (“[A] negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.”). 38 See Ex. A at 5-6. 39 Letter from James F. Moriarty, U.S. Ambassador (ret.) to Bangladesh (April 17, 2015) (“In the democracies of South Asia, calling for strikes and closures is a time-honored way of movements and political parties . . . Indeed the right to call for strikes is protected in Bangladesh’s legal system”). 40 See, e.g., Bojnoordi v. Holder, 757 F.3d 1075, 1078 (9th Cir. 2014) (finding a Tier III terrorist organization when the organization’s goal was “regime change, which could only be accomplished through violence”); Viegas v. Holder, 699 F.3d 798, 802 (4th Cir. 2012) (finding a Tier III terrorist organization when the organization’s factions engaged in violence against the government); Haile v. Holder, 658 F.3d 1122, 1127 (9th Cir. 2011) (finding a Tier III terrorist organization when the organization carried out kidnapping, assassination, and hijacking).



management of the most recent elections, the BNP has only called for a boycott of the elections—not an overthrow of the AL-led government or violence.41

More importantly, in contrast to DHS’ assertion, the BNP and its leadership has consistently condemned any violence associated with strikes or other protests. For example, during the most recent elections when the AL government refused to allow an election overseen by a neutral caretaker government, as had been the practice since the 1990s, the BNP called for political protests. 42 But, consistent with its historical position, the BNP called for peaceful protests and denounced any associated violence, even explicitly accusing activists of terrorism.43 While there have been recent violent political clashes in Bangladesh, the Department of State has described them as “linked to criminal activities rather than to political motives.” 44 Thus, individual party members may be taking it upon themselves to perpetrate violence, but the party and its leadership as a whole do not support these actions. In such cases, “[a]n organization is not a terrorist organization just because one of its members commits an act of armed violence . . . even if his objective was to advance the organization’s goals.”45 Second, if DHS’ assertion were true, and routine violence arising from otherwise-lawful strikes and protests constituted terrorist activity, DHS would have to deem every political party in Bangladesh—and, indeed, most of the political parties in South Asia—terrorist organizations. This designation would include the

41 DEMOCRACY IN THE CROSSFIRE, supra note 2, at 2. See generally INT’L CRISIS GRP., supra note 2, at 3-7 (discussing the history and rivalry between the AL and BNP as political parties). 42 INT’L CRISIS GRP., supra note 2, at 1. 43 See Bangladesh Firebomb Attacks on Bus and Truck Kill Nine, BRIT. BROADCASTING CORP. (Feb. 7, 2015), available at http://www.bbc.com/news/world-asia-31191812; Bangladesh Opposition Leader Khaleda Zia Charged Over Arson Attack, BRIT. BROADCASTING CORP. (Jan. 3, 2014), available at http://www.bbc.com/news/world-asia-31127763; see also Democracy in the Crossfire, at 13. 44 BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, supra note 33, at 3. 45 See Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008) (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 930-32 (1982)); see also Khan v. Holder, 766 F.3d 689, 699 (7th Cir. 2014).



governing AL party,46 to which the United States gave more than 600 million dollars of aid between 2010 and 201247 and will give close to 5 billion dollars in aid between 2012 and 2017.48

Violent protests and clashes regularly occur in Bangladesh, with political violence flaring up in 1996 and 2006, as well as most recently in 2014.49 According to the legal aid and human rights NGO Ain o Salish Kendra (ASK), which the Department of State regularly cites, in 2014 more than 664 incidents of political violence occurred, resulting in 8,373 individuals injured and 147 deaths. 50 Of the 664 incidents that occurred, only 146 involved the BNP in any way (resulting in 31 deaths). Indeed, the AL fomented nearly twice as many political incidents, with 280 violent incidents involving 64 deaths. 51 Significantly, these numbers do not include violence committed by AL security forces, who have cracked down on the opposition through extrajudicial killings of protestors—including bystander children—destruction of property, and widespread arbitrary arrests.52 Any reading of INA, 8 U.S.C.A. § 1182(a)(3)(B)(vi) that would classify the BNP as an undesignated Tier III terrorist organization based on this type of political violence would necessarily require the same finding with respect to the AL and every other political party in the country. Such a reading would certainly run counter to Congressional intent, given the fact that Congress is giving the AL billions of dollars in U.S. economic and military aid.

46 See, e.g., HUMAN RIGHTS WATCH, BLOOD ON THE STREETS: THE USE OF EXCESSIVE FORCE DURING BANGLADESH PROTESTS 4 (2013), available at http://www.hrw.org/sites/default/files/reports/bangladesh0813_ForUpload_0.pdf (indicating that during a national march, activists of the AL joined in violent clashes that arose between protesters and security forces). 47 See Foreign Aid Explorer: Bangladesh, USAID, https://explorer.usaid.gov/country-detail.html#Bangladesh (last visited Aug. 10, 2015). 48 Press Release, Embassy of the United States of America in Dhaka, Bangladesh, USAID Celebrates 50th Anniversary and 40 Years with Bangladesh (Jan. 12, 2012), available at http://photos.state.gov/libraries/bangladesh/8601/2012%20Press%20Releases/USAID%2050th%20Anniversary_%20Jan%2012_%202012.pdf. 49 See INT’L CRISIS GRP., supra note 2, at 1, 4. 50 Political Violence in 2014, Ain o Salish Kendra (Jan. 17, 2015), https://docs.google.com/viewerng/viewer?url=http://www.askbd.org/ask/wp-content/uploads /2015/01/Political-Violence-2014-ASK-Documentation1.pdf 51 Id. 52 HUMAN RIGHTS WATCH, supra note 46, 13-20.



3. DHS Must Discontinue Arguing that Bangladeshi Asylum Seekers Claiming

Persecution on the Basis of their BNP Affiliation are Members of a Tier III Terrorist Organization.

Based on reports we have heard from detainees and their advocates, we have reason to

believe that immigration judges are denying release on bond to Bangladeshi individuals otherwise eligible for such release pursuant to the Ninth Circuit’s decision in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) because of DHS’ unsupported assertion that BNP is a Tier III terrorist organization. We also have reason to believe that when such detainees are awarded bond under Rodriguez, immigration judges are granting very high bonds—sometimes as high as $50,000—at least in part because of DHS’ unsupported assertion that BNP is a Tier III terrorist organization. In contrast, the mean bond amount for prolonged detainees in the Central District of California is $15,883, while the median is $10,000.53 As explained above, the BNP is neither a Tier III terrorist organization, nor is it affiliated with any terrorist organizations. Thus, DHS’ pattern and practice of improperly denying parole to Bangladeshi asylum seekers in detention—or, when bond is granted, advocating for extraordinarily high bond amounts—must stop.

We are also concerned that Bangladeshi detainees’ asylum proceedings are tainted by DHS’ allegation that BNP is a Tier III terrorist organization. As discussed above, at Rodriguez bond hearings, DHS has argued that those Bangladeshi asylum seekers claiming persecution on account of their affiliation with the BNP are members of a Tier III terrorist organization. While immigration judges have denied asylum to Bangladeshi detainees for a variety of reasons, it is very likely that asylum proceedings are tainted by DHS’ unsupported assertion that BNP is a terrorist organization. DHS must stop arguing that those Bangladeshi asylum seekers claiming persecution on account of their affiliation with the BNP are members of a Tier III terrorist organization.

Further, DHS’ current stance, in addition to being out of touch with reality, is also completely at odds with its own policy directives. Many asylum seekers have suffered trauma and abuse prior to arrival in the United States. Detaining asylum seekers in prison-like conditions is re-traumatizing and may create long-term psychological consequences. 54 Uncertainty about the length of detention is itself a significant cause of anxiety and mental

53 See Ex. C (collecting and summarizing government data on bond amounts for individuals detained for more than six months as part of Petitioners-Appellees/Cross Appellants’ Request for Judicial Notice at 86, Rodriguez v. Robbins, No. 13-56706 (9th Cir. Sept. 22, 2014) ECF No. 24-4). 54 See PHYSICIANS FOR HUMAN RIGHTS & THE BELLEVUE/NYU PROGRAM FOR SURVIVORS OF TORTURE, FROM PERSECUTION TO PRISON: THE HEALTH CONSEQUENCES OF DETENTION FOR ASYLUM SEEKERS 1-3 (2003), available at https://s3.amazonaws.com/PHR_Reports/persecution-to-prison-US-2003.pdf.



distress,55 and detention becomes especially isolating and hostile for an asylum seeker who is unable to communicate or understand English.56 Detention also impacts an individual’s ability to demonstrate eligibility for asylum; not only is it difficult for an applicant to gather documentation in support of his or her asylum claim, it is nearly impossible for an applicant to secure legal representation.57 Because of the unique situation of asylum seekers, members of Congress, the bipartisan U.S. International Religious Freedom Commission, and national and international human rights organizations urged DHS to reform its detention and treatment of asylum seekers.58

In response, DHS issued the ICE Policy Directive 11002.1: Parole of Arriving Aliens Founds to Have a Credible Fear of Persecution or Torture in 2009 to increase parole grants to asylum seekers and shift away from detaining asylum seekers.59 Under this directive, individuals found to have a credible fear of persecution should be considered for parole, and parole may be granted once asylum seekers establish credible fear, identity, community ties, and that they are not a fight or security risk.60 The parole application process requires an individualized, case-by-case determination of whether detention is necessary.61 The guidance memo favors parole where identity is established and the individual is neither a flight risk nor a danger to the community.62

However, DHS is not honoring its own guidance towards Bangladeshi asylum applicants with political persecution claims. Most of these applicants have established a credible fear,

55 Id. at 5. 56 Id. at 117-18 (recounting stories of non-English speaking detainees put in segregation or solitary confinement). 57 HUMAN RIGHTS FIRST, U.S DETENTION OF ASYLUM SEEKERS: SEEKING PROTECTION, FINDING PRISON 42 (2009), available at https://www.humanrightsfirst.org/wp-content/uploads/pdf/090429-RP-hrf-asylum-detention-report.pdf 58 See generally id. at 68-73; U.S. COMM’N FOR INT’L RELIGIOUS FREEDOM, REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL (2005), available at http://www.uscirf.gov/reports-briefs/special-reports/report-asylum-seekers-in-expedited-removal. 59 U.S. Immigration and Customs Enforcement, Directive No. 11002.1, Parole of Arriving Aliens Found to Have A Credible Fear of Persecution or Torture 6-7 (2009), available at http://www.ice.gov/doclib/dro/pdf/11002.1-hd-parole_of_arriving_aliens_found_credible_fear .pdf. 60 Id. § 4.2. 61 Id. 62 See id. § 6.2



produced identification documents, and submitted proof of an eligible sponsor.63 According to the 2009 criteria, they are not a danger to the community. Thus, they are the type of asylum seekers that the parole guidance is intended to assist. However, DHS is carrying out a blanket, systematic denial of parole applications submitted by Bangladeshi asylum applicants with political persecution claims on account of their support or membership in the BNP. DHS is circumventing its own policy and depriving individuals of an individualized determination of their parole application where DHS ought to balance the interests of the individual against any security risk.

For instance, of the 23 Bangladeshi detainees we met with at the Musick facility, 21 established a credible fear of persecution. Of these, at least 18 submitted an application for parole that included proof of identification and community ties; yet all were denied parole. Take for instance the situation of Islam Tanvir who is a BNP supporter and was forced to flee his country after suffering multiple instances of harm by the Awami League. After passing his credible fear interview, Tanvir submitted a parole application which included sponsorship from his cousin, a U.S. citizen who lives in New York and was willing to support Tanvir. Nevertheless, ICE denied parole on the pretext that they were not satisfied by the proof of identification submitted and for failure to demonstrate strong enough ties to the community, even though comparable identity documents are routinely deemed sufficient in other cases. Tanvir, like many Bangladeshi asylum seekers, came to the United States specifically because of his ties to the Bangladeshi immigrant community residing here, such as his cousin and his cousin’s family. At Tanvir’s prolonged custody redetermination hearing, Tanvir’s cousin and friend from Bangladesh traveled from New York to Los Angeles in order to testify in person and corroborate that Tanvir was neither a flight risk nor a danger to society. However, because DHS argued that BNP constitutes a Tier-III terrorist organization, Tanvir was denied bond.

Tanvir’s case is not unique. At least dozens of Bangladeshi asylum seekers are

languishing in detention facilities across the United States just as he is.

For all of these reasons, it is clear that DHS’ current policy in denying parole and opposing release on bond to Bangladeshi detainees affiliated with the BNP on account of its position that BNP is a Tier III terrorist organization is unjustified. We ask that you immediately take the steps identified at the outset of this letter in order to rectify the harms created by this unjustified policy.

63 Indeed, because of the sizable Bangladeshi immigrant community residing in the United States, many Bangladeshi detainees have family members and close friends living in the U.S. who can qualify as their sponsor. See MIGRATION POLICY INSTITUTE, RAD DIASPORA PROFILE: THE BANGLADESHI DIASPORA IN THE UNITED STATES 1 (2014), available at http://www.migrationpolicy.org/sites/default/files/publications/RAD-Bangladesh.pdf (As of July 2014, there were an estimated 277,000 Bangladeshis living in the U.S.).



We look forward to hearing from you by November 13, 2015, to reach a resolution on

this matter. If you have any questions, please contact Laboni Hoq, Asian Americans Advancing Justice – LA, [email protected], 213-977-7500, ext. 257.

Sincerely, Laboni Hoq, Esq. Litigation Director Asian Americans Advancing Justice | LA

EXHIBIT A

EXHIBIT B

1

14 Beacon Street Suite 602 Boston, MA 02108 Tel. (617) 227-9727 Fax (617) 227-5495

PRACTICE ADVISORY1

The Bangladesh National Party is Not a Tier III Terrorist Organization:

Sample Brief2

August 24, 2015

I. Introduction

The Department of Homeland Security (“DHS”) recently has adopted the position that the

Bangladesh National Party (“BNP”), the second largest political party in Bangladesh, is an

undesignated ‘Tier III’ terrorist organization. In general, DHS argues that members of the BNP

are ineligible for asylum or withholding of removal due to alleged engagement in terrorist

activities. Similarly, DHS regularly denies bond to Bangladeshi BNP members and, in bond

proceedings, argues that immigration judges do not have jurisdiction to redetermine custody

status. Contrary to DHS’ assertions, the BNP is not a Tier III terrorist organization and therefore

membership in the BNP does not constitute engaging in terrorist activities.

DHS’s position on this issue is highly problematic. First, DHS is misapplying the terrorism bars

under INA § 212(a)(3)(B) by relying on vague legal arguments which confuses the broad term

“affiliation” with recruitment, solicitation of funds and material support. Second, due to the

recent crackdowns against the BNP by the current Bangladeshi government, which includes

extra-judicial arrests and killings, BNP members are particularly vulnerable to persecution and

may be in dire need of asylum.

This practice advisory is intended to inform advocates of DHS’ recent position regarding the

BNP which is based on review of DHS briefings shared with the authoring organizations. The

sample brief is intended to exemplify how one might respond to DHS’ position by providing

needed context on the various political factions in Bangladesh and explaining why the BNP does

not meet the statutory definition of a Tier III terrorist organization.

1 Copyright (c) 2015, National Immigration Project of the National Lawyers Guild. This

advisory is intended for lawyers and is not a substitute for independent legal advice provided by

a lawyer familiar with a client’s case. 2 This advisory and the attached sample brief were authored by Khaled Alrabe while he

was a Law Fellow at the National Immigration Project, with the help of Trina Realmuto at the

Project and Ahilan Arulanantham at the ACLU of Southern California.

2

II. DHS’ Position

DHS argues that the BNP is a Tier III terrorist organization as defined in § 212(a)(3)(B)(vi) of

the Immigration and Nationality Act (INA).3 This claim is based on DHS’ allegations that the

BNP engages in terrorist activity – specifically, activities defined in INA §

212(a)(3)(B)(iii)(V)(b)4 – through its own activities as well as the activities of its alleged

affiliates.

More specifically, DHS claims that BNP members provide “material support” to this Tier III

terrorist organization through their membership.5 Consequently, DHS claims that all BNP

members are ineligible for asylum,6 and/or ineligible for withholding of removal.

7 DHS also

argues that immigration judges do not have jurisdiction to redetermine the custody status of BNP

members because they have engaged in terrorist activities.8

Underlying all of DHS’ arguments is the mistaken premise that the BNP is a Tier III terrorist

organization. As explained below and in the attached brief, DHS is wrong.

III. Sample Brief and Additional Attachments

The attached sample brief provides a factual background about the political landscape in

Bangladesh and an overview of one paramilitary organization and two Tier I terrorist

organizations that DHS raises in its effort to link terrorism to the BNP. The brief further

explains why the BNP is a not a Tier III terrorist organization because: (1) the evidence does not

establish that the BNP, or its subgroups, are affiliated with organizations that engage in terrorist

activities; (2) even if the BNP were affiliated with such organizations, a Tier III designation

requires more the mere “affiliation”; and (3) the evidence does not establish that the BNP itself

engages in terrorist activities.

Footnote 50 of the sample brief references a letter from James F. Moriarty. As practitioners may

wish to attach the letter as an exhibit, it follows the brief.

The last attachment to the advisory is a July 7, 2015 decision from Immigration Judge Dorothy

Harbeck in Elizabeth, New Jersey finding that the BNP is not a Tier III terrorist organization.

3 A Tier III terrorist organization is defined as “a group of two or more individuals,

whether organized or not, which engages in, or has a subgroup which engages in, the activities

described in subclauses (I) through (VI) of clause (iv).” INA § 212(a)(3)(B)(vi). 4 This subsection defines terrorist activity to include the “use of any explosive firearm, or

other weapon or dangerous device (other than for mere personal monetary gain), with intent to

endanger, directly or indirectly, the safety of one or more individuals or to cause substantial

damages to property.” INA § 212(a)(3)(B)(iii)(V)(b). 5 INA § 212(a)(3)(B)(iv)(VI)(dd).

6 INA § 208(b)(2)(A)(v) (barring asylum to individuals described in INA §§

212(a)(3)(B)(i)(I-IV) & (VI) or INA § 237(a)(4)(B). 7 INA § 241(b)(3)(vi) (barring withholding to individuals described in INA § 237(a)(4)(B),

which, in turn, references individuals described in INA § 212(a)(3)(B)). 8 8 C.F.R. § 1003.19(h)(2)(i)(C).

SAMPLE BRIEF

(FOR FILING WITH THE IMMIGRATION COURT)

This motion is not a substitute for independent legal advice supplied by a lawyer familiar with a

client’s case. It is not intended as, nor does it constitute, legal advice. DO NOT TREAT THIS

SAMPLE MOTION AS LEGAL ADVICE.

[If applicable: DETAINED]

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

[CITY], [STATE]

In the Matter of: )

)

_____________________________________, ) A Number:________________

)

Respondent. )

)

Insert one: )

In Removal Proceedings. )

In Bond Proceedings. )

)

Select one:

BRIEF IN SUPPORT OF ELIGIBILTY FOR BOND

[Note: This brief addresses the IJ’s jurisdiction to conduct bond proceedings.

It does not address the merits of a bond request (i.e, flight risk or danger to the community).

Readers are advised to make merits arguments as appropriate.]

BRIEF IN SUPPORT FOR ELIGIBILTY FOR ASYLUM / WITHOLDING

TABLE OF CONTENTS

Page

I. INTRODUCTION……………………………………………………………………….

II. FACTUAL BACKGROUND……………………………………………………………

A. The Awami League (AL) – Current Governing Party…………………………..

B. The Bangladesh Nationalist Party (BNP) – Second Largest Political Party,

Former Governing Party, and Main Opposition to the AL……………………….

C. Jamaat-e-Islami (JeI) – Third Largest Political Party…………………………….

D. Jamaat-ul Mujahideen Bangladesh (JMB) – Paramilitary Organization…………

E. Lashkar-e-Taiba (LeT) – Tier I Terrorist Organization……………………………

F. Harakatul-Jihad-i-Islami Bangladesh (HUJI-B) – Tier I Terrorist Organization….

III. THE BNP IS NOT A TERRORIST ORGANIZATION…………………………………

A. The Evidence Does Not Establish that the BNP, or Its Subgroups, Are

Affiliated With Organizations That Engage in Terrorist Activists…………………

1. The BNP is not affiliated with the JMB…………………………………….

2. The BNP is not affiliated with the LeT……………………………………..

3. The BNP is not affiliated with the HUJI-B…………………………………

B. Even If The BNP Were “Affiliated With” a Terrorist Organization, Under the

Plain Language of INA § 212(a)(3)(B), Mere Affiliation With a Terrorist

Organization Alone Cannot Justify a Tier III Designation…….……………...

C. The Evidence Does Not Establish that the BNP Engages in Terrorist Activities…

IV. CONCLUSION……………………………………………………………………………

I. INTRODUCTION

Respondent submits this brief in support of [her/his] claim that [her/his] membership in

the BNP does not constitute terrorist activity as defined in § 212(a)(3)(B)(iv)(VI)(dd) of the

Immigration and Nationality Act (“INA”) because the Bangladesh Nationalist Party (“BNP”) is

not a “Tier III” terrorist organization. Therefore, [insert as applicable]

[Respondent is not barred from asylum under INA § 212(a)(3)(B)(i)(I)]

[Respondent is not barred from withholding under INA § 208(b)(2)(A)(v)]

[the regulation at 8 C.F.R. § 1003.19(h)(2)(i)(C) is not applicable to this case and this

Court has jurisdiction to redetermine [his/her] custody status and should order Respondent’s

immediate release [on bond in the amount of $_____.].

DHS’ arguments are entirely premised on the erroneous assertion that the Bangladesh

Nationalist Party (“BNP”), of which Respondent [is/was] a member, is a Tier III terrorist

organization. As explained below, the evidence does not establish that the BNP or its subgroups

are affiliated with groups that engage in terrorist activities. Second, even if the BNP were

affiliated with a terrorist organization, under the plain language of INA § 212(a)(3)(B), mere

affiliation does not justify a Tier III classification absent an explicit finding that that the BNP

solicited funding, recruited individuals or provided material support to such terrorist

organization. Finally, the evidence does not establish that the BNP itself engages in terrorist

activities.

//

//

//

//

II. FACTUAL BACKGROUND1

This section sets forth an overview of Bangladesh’s recent political history through a

description of the country’s three major political parties. Bangladesh came into existence after it

successfully fought a war of independence from Pakistan in 1971.2 India supported Bangladesh

in that conflict. Since that time, it has been ruled by both democratically-elected and military

governments from time to time.

Since the fall of absolute military rule in 1990, an intense rivalry between two major

political parties, the Awami League (AL), and the Bangladesh Nationalist Party (BNP) has

defined Bangladesh’s democratic landscape.3 This rivalry regularly escalates to political

violence, with major incidents having occurred in 1996, 2006, and most recently both 2014 and

2015.4 The third largest party is the Jamaat-e-Islami (JeI), which, at various times, has had

political alliances with both the BNP and AL.5

In addition, this section contains an overview of one paramilitary organization and two

1 All footnote citations contain at least one citation to either U.S. government publications

or sources that U.S. Citizen and Immigration Services refers to as “the most accurate accounts of

conditions in a particular country” which include: The Department of State, International Crisis

Group, Human Rights Watch, Amnesty International and IHS Jane’s List. See U.S. Citizen and

Immigration Services, Refugee, Asylum and International Operations Directorate – Officer

Training (September 6, 2012) at 22, available at http://www.uscis.gov/sites/default/files/USCIS/

About%20Us/Directorates%20and%20Program%20Offices/RAIO/coi-researching-using-

country-origin-information-raio-adjudications.pdf (last visited June 8, 2015). 2 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3. 3 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3; Victor Mallet, Bangladesh: A Dangerous Rivalry, Fin. Times, April 12, 2015. 4 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3-5; John F. Burns, Voters Are Few in Bangladesh As a Dozen Die in Clashes, N.Y. Times,

February 16, 1996; Vow of Bangladesh Protests, N.Y. Times, November 12, 2006; Julfikar Ali

Manik, Four Opposition Activists Die in Clashes in Bangladesh, N.Y. Times, January 5, 2015. 5 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3; Syed Zain Al-Mahmood, Bangladesh Court Srikes Down Jamaat-e-Islami’s Electoral

Registration, Wall St. J., August 1, 2013.

Tier I terrorist organizations that the Department of Homeland Security (DHS) raises in its effort

to link terrorism to the BNP.

A. The Awami League (AL) – Current Governing Party

The Awami League (AL), led by Sheikh Hasina, is the current governing party in

Bangladesh. It formed the first national government in 1972 and previously governed the

country from 1996 to 2001. After a seven year absence from power, the AL regained control in

2008.6

The AL won the most recent national election in 2014, a disputed election which the

country’s main opposition party (the BNP) boycotted because the AL refused to adhere to the

tradition of having a neutral caretaker government conduct the election.7 The United States,

United Kingdom, and the European Union strongly criticized the 2014 election.8 The

Department of State declared that “the United States is disappointed by the recent Parliamentary

elections in Bangladesh” and that “the results of the just-concluded elections do not appear to

credibly express the will of the Bangladeshi people.”9 The ideological leanings of the AL

include the principles of democracy, socialism, and secularism.10

Despite its purported

secularism, the AL has allied with Islamist parties in the past, including the JeI, had pledged to

6 Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Bangladesh

Country Reports on Human Rights Practices – 2008 (Feb. 25, 2009), available at

http://www.state.gov/j/drl/rls/hrrpt/2008/sca/119132.htm (last visited June 8, 2015). 7 Ellen Barry, Opposition Party Boycotting Bangladesh Election, N.Y. Times, January 4,

2014; Bangladesh's Bitter Election Boycott, British Broadcasting Corp. (BBC), January 3, 2014;

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at 5-6. 8 Julhas Alam, Violence, Low Turnout Mar Elections in Bangladesh, Wash. Post, January

5, 2014; International Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh (March

1, 2010) at 7. 9 Bureau of Public Affairs, Press Release, U.S. Dep’t of State, Parliamentary Elections in

Bangladesh (Jan. 6, 2014), available at http://www.state.gov/r/pa/prs/ps/2014/01/219331.htm

(last visited June 8, 2015). 10

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

at 3; International Crisis Group, Bangladesh Today (October 23, 2006) at 4.

declare Muslim minorities to be non-Muslims, and to enact blasphemy laws.11

B. The Bangladesh Nationalist Party (BNP) – Second Largest Political Party,

Former Governing Party, and Main Opposition to the AL

The Bangladesh Nationalist Party (BNP) is currently the main opposition party to the AL.

The BNP governed the country from 1991 to 1996 and again from 2001 to 2006.12

In late 2006,

as has been the tradition since democracy returned to Bangladesh, the BNP government

transferred power to a neutral caretaker government that would oversee the subsequent election.

This was followed by a one year period of military rule; elections were held in 2008.13

When the

BNP was in power between 2001 and 2006, it was a strong ally of the United States, particularly

with respect to counterterrorism. At no point did the United States government suggest, even

remotely, that the BNP was a terrorist organization, or that Bangladesh was a state sponsor of

terrorism during the time it was ruled by BNP.14

11


3-4; Syed Zain Al-Mahmood, Bangladesh Court Srikes Down Jamaat-e-Islami’s Electoral

Registration, Wall St. J., August 1, 2013. 12

Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Bangladesh

Country Reports on Human Rights Practices – 2001 (Mar. 4, 2002), available at

http://www.state.gov/j/drl/rls/hrrpt/2001/sa/8224.htm; Bureau of Democracy, Human Rights and

Labor, U.S. Dep’t of State, Bangladesh Country Reports on Human Rights Practices – 1993

(Jan. 15, 1994) available at http://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_

report_sasia/Bangladesh.html (last visited June 8, 2015). 13



http://www.state.gov/j/drl/rls/hrrpt/2007/100612.htm (last visited June 8, 2015). 14

For example, the Department of State reported that:

Prime Minister Begum Khaleda Zia regularly condemned terrorism at domestic

and international forums. The government renewed bans on Jamaat ul Mujahedin

Bangladesh (JMB), Jagrata Muslim Janata Bangladesh (JMJB), and Harkat ul-

Jihad-i-Islami/Bangladesh (HUJI-B) as terrorist organizations. There was good

cooperation between law enforcement agencies on several cases relating to

domestic terrorism. With U.S. technical assistance, Bangladesh drafted a

The BNP boycotted the 2014 election (ultimately won by the AL) because the election

was not held under a neutral caretaker government, as had been the practice since the 1990s.15

Following the 2014 election, the AL-led government has detained and/or placed under house

arrest hundreds of BNP activists and leaders. Khaleda Zia, the leader of the BNP, remains one of

the few major BNP leaders not yet formally arrested.16

The BNP’s political platform is associated with Bangladeshi nationalism and economic

liberalism.17

However, the BNP has allied with groups that held different views on the national

question (e.g., JeI), despite its professed dedication to Bangladeshi nationalism.

C. Jamaat-e-Islami (JeI) – Third Largest Political Party

Jamaat-e-Islami (JeI) is the third largest political party in Bangladesh. It was officially

established in Bangladesh in 1979 and was banned for a period of time due to its anti-secular

nature, until the restoration of democratic rule in the 1990s.18

It is an Islamist party with ties to

other Islamist political parties in the Indian subcontinent.19

The JeI has allied with both the AL

comprehensive new anti-money laundering law. Bangladesh was also working

with the United States to strengthen controls at land, sea, and air ports of entry.

Bureau of Counterterrorism, Office of the Coordinator for Counterterrorism, U.S. Dep’t of State,

2005 Country Reports on Terrorism: South Asia Overview (April 28, 2006), available at

http://www.state.gov/j/ct/rls/crt/2005/64345.htm (last visited June 8, 2015). 15

See supra, n.6. 16

On the Boil: the Prime Minister has Backed the Opposition Up Against a Barricade, The

Economist, March 5, 2015. Bangladesh: Crackdown on Opposition, Media, Human Rights

Watch, January 8, 2015, available at http://www.hrw.org/news/2015/01/08/bangladesh-

crackdown-opposition-media (last visited June 8, 2015). 17


3; International Crisis Group, Bangladesh Today (October 23, 2006) at 4. 18


3; International Crisis Group, Bangladesh Today (October 23, 2006) at 15. 19

HIS Jane’s List, Internal Affairs, Bangladesh (October 17, 2012) at 7-8; International

Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at 3.

and the BNP in the past; it had an electoral alliance with the AL in 199620

and it was a coalition

partner in the BNP governments (1991-1996 and 2001-2006).21

The Islamic Chatra Shabir (ICS)

is the student wing of JeI and a gateway for students and youth to join politics.22

In 2010, the AL government established a domestic International Crimes Tribunal (ICT)

to prosecute individuals who committed war crimes during Bangladesh’s war of independence in

1971.23

The ICT has prosecuted and sentenced to death many JeI members, despite heavy

international criticism of the politically motivated nature of ICT prosecutions and the lack of due

process.24

The United States has publicly expressed concern with the proceedings of the ICT,

urging a halt to executions.25

A Department of State cable discussing the creation of the ICT

expressed that “[t]here is little doubt that hardline elements within the ruling [AL] party believe

that the time is right to crush Jamaat and other Islamic parties.”26

//

//

20

See supra, n.3. 21


3-4. 22

International Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh (March

1, 2010) at 3. 23



http://www.state.gov/j/drl/rls/hrrpt/2009/sca/136085.htm (last visited June 8, 2015). 24

Bangladesh: Justice for the past requires fair trials, warn UN experts, Office of the High

Commissioner of Human Rights, February 17, 2013, available at

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12972&LangID=E

(last visited June 8, 2015); Bangladesh: Conviction of Journalist Chills Speech, Amnesty

International, 6 December 2014, available at https://www.amnesty.org/en/press-

releases/2014/12/bangladesh-conviction-journalist-chills-speech/ (last visited June 8, 2015);

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at ii. 25

Bureau of Public Affairs, Press Release, U.S. Dep’t of State, Statement on the

Bangladesh International Crimes Tribunal (ICT) Death Sentence of Kamaruzzaman (Apr. 11,

2015), available at http://www.state.gov/r/pa/prs/ps/2015/04/240591.htm (last visited June 8,

2015). 26

Joseph Allchin, The Midlife Crisis of Bangladesh, Foreign Policy, December 21, 2012.

D. Jamaat-ul Mujahideen Bangladesh (JMB) – Paramilitary Organization

The Jamaat-ul Mujahideen Bangladesh (JMB) is a paramilitary organization founded in

1998 by Sheikh Abdur Rahman, who was dissatisfied with the JeI’s commitment to the

democratic process.27

Between 2002 and 2005, when the BNP and JeI had formed a coalition

government, the JMB engaged in violence, including bombings. On August 17, 2005, the JMB

synchronized 500 bombings across Bangladesh, killing 2 people and injuring 50 others.28

Subsequently, in 2006, the then BNP-led government cracked down on the JMB, arresting,

prosecuting and convicting hundreds of JMB members and top leaders of the JMB, many of

whom were sentenced to death.29

This crackdown significantly reduced the JMB’s power,

although it remains a threat.30

Notably, the United States partnered with the BNP-led

government in tackling domestic and international terrorism.31

E. Lashkar-e-Taiba (LeT) – Tier I Terrorist Organization

The LeT is a Pakistani militant organization founded in the late 1980s whose focus is on

ending Indian control over its state of Kashmir.32

The LeT has been responsible for a number of

27

International Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh at 2-4. 28

Bureau of Counterterrorism, Office of the Coordinator for Counterterrorism, U.S. Dep’t

of State, 2005 Country Reports on Terrorism: South Asia Overview (April 28, 2006), available

at http://www.state.gov/j/ct/rls/crt/2005/64345.htm (last visited June 8, 2015); International

Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh at 12. 29

Bureau of Counterterrorism, Office of the Coordinator for Counterterrorism, U.S. Dep’t

of State, 2006 Country Reports on Terrorism: South Asia Overview (April 30, 2007), available

at http://www.state.gov/j/ct/rls/crt/2006/82734.htm (last visited June 8, 2015); Top Bangladeshi

Militant Held, British Broadcasting Corp. (BBC), March 6, 2006; International Crisis Group, The

Threat from Jamaat-Ul-Mujahideen Bangladesh (March 1, 2010), at 13. 30


1, 2010), at 1. 31

2006 Country Reports on Terrorism: South Asia Overview. 32

Bureau of Counterterrorism, Country Reports on Terrorism 2013, Chapter 6, Foreign

Terrorist Organizations, available at http://www.state.gov/j/ct/rls/crt/2013/224829.htm (last

visited June 8, 2015).

high profile attacks on civilians, including the 2008 attacks in Mumbai, India.33

Since 2001, the

United States government has listed LeT as a Tier I terrorist organization pursuant to INA §

219.34

However, the Department of State’s 2013 Country Reports on Terrorism does not state

that the LeT has any activities in Bangladesh.35

F. Harakatul-Jihad-i-Islami Bangladesh (HUJI-B) – Tier I Terrorist

Organization

HUJI-B is a branch of the Pakistani-based Harakat-ul-Jihad al-Islami (HUJI). The branch

was formed in 1992 and consists of veterans of the Afghan jihad.36

Since 2008, the United States

government has listed HUJI-B as a Tier I terrorist organization pursuant to INA § 219. The BNP

banned the HUJI-B in 2005.37

The HUJI-B has engaged in various bombing campaigns,

including a grenade attack on the British High Commissioner in Sylhet, Bangladesh.38

III. THE BNP IS NOT A TERRORIST ORGANIZATION.

Contrary to the assertions by the Department of Homeland Security (DHS), the BNP is

not a terrorist organization as defined in § 212(a)(3)(B)(vi) of the Immigration and Nationality

Act (INA), which defines a Tier III terrorist organization as:

a group of two or more individuals, whether organized or not, which engages in,

or has a subgroup which engages in, the activities described in subclauses (I)

through (VI) of clause (iv).

INA § 212(a)(3)(B)(vi)(III). The BNP is not engaged, and does not have a subgroup which

engages in, terrorist activity as described in INA § 212(a)(3)(B)(iv)(I)-(VI). Specifically, the

33

Id. 34

Bureau of Counterterrorism, Designated Foreign Terrorist Organizations, available at

http://www.state.gov/j/ct/rls/other/des/123085.htm (last visited June 8, 2015). 35

Id. 36

Id. 37

Id.; 2006 Country Reports on Terrorism: South Asia Overview. 38


1, 2010) at i.

BNP does not engage in, or have a subgroup which engages in, terrorist activity through the use

of “an explosive firearm, or other weapon or dangerous device (other than for mere personal

monetary gain), with intent to endanger, directly or indirectly, the safety of one or more

individuals or to cause substantial damages to property.” INA § 212(a)(3)(B)(iii)(V)(b).

Consequently, even assuming arguendo that Respondent provided “material support” to

the BNP, Respondent has not provided “material support . . . to a terrorist organization” under

INA § 212(a)(3)(B)(iv)(VI)(dd) since the BNP is not a terrorist organization.

The entirety of DHS’ claim that the BNP is a Tier III organization is based on DHS’

unsupported allegation that the BNP is engaged in “activities and affiliation with Islamic

Extremist groups in and near Bangladesh” including the JMB and the LeT. See [Name of DHS

Doc at *]. First, BNP is simply not affiliated with any of the groups at issue. On the contrary, it

is a mainstream political party that has governed one of the largest democracies on Earth on

several occasions over the last forty years, and it cannot be deemed to be “affiliated” with the

organizations to which DHS refers. Second, even if the BNP has an affiliation with a terrorist

organization, under the plain language of INA § 212(a)(3)(B), a Tier III designation requires that

a group have more than a mere ‘affiliation with’ a terrorist organization. The statute’s plain

language requires more than mere “affiliation with” a terrorist organization. A major political

party cannot be classified as itself a terrorist organization absent a showing that it solicited

funding, recruited individuals, or provided material support to the group, as the statute’s

language plainly contemplates. Third, there is no evidence that the BNP itself engages in terrorist

activities. Therefore, this Court must reject DHS’ allegation and find that the BNP is not a Tier

III terrorist organization.

A. The Evidence Does Not Establish that the BNP, or Its Subgroups, Are

Affiliated With Organizations That Engage in Terrorist Activists.

DHS has not, and cannot, establish that the BNP is affiliated with “Islamic Extremist

groups,” including the JMB, the LeT, and the HUJI-B. See [Name of DHS Doc at *].

1. The BNP is not affiliated with the JMB.

DHS’ claim that the BNP is affiliated with the JMB is particularly striking given that,

between 2005 and 2006, the BNP-led government cracked down on the JMB, charging,

prosecuting and convicting hundreds of JMB members and leader.39

DHS provides no examples

where the BNP has supported the JMB, either directly or indirectly, since this crackdown.

Furthermore, other than a fleeting reference to a disputed and politically motivated allegation by

the AL concerning the HUJI-B (addressed below in § III. A.3), DHS provides no evidence of any

BNP association with the JMB after 2006.

In the early 1990s, the BNP (then the controlling government party) allowed ICS and JeI

to reenter Bangladeshi politics, however, this action does not demonstrate that the BNP provided

material support to the JMB in any way, let alone that it did so during any relevant time period.

While the JMB has recruited members from ICS and to some extent JeI, DHS’ own evidence

clearly states that those recruited were individuals who were “disgruntled with the policies of

their leaders.”40

Furthermore, the JeI was a coalition partner with the BNP during the crackdown

on the JMB, and in any event the JeI and the BNP are distinct parties whose relationship is

characterized as a “solely political, not ideological alliance, like that between UK Conservatives

39

See supra, n.26. 40


1, 2010), at 5.

and Liberal Democrats.”41

Thus, any tie between the BNP and JeI cannot form a basis for

concluding that BNP provides material support to, or is even affiliated with, JMB.

2. The BNP is not affiliated with the LeT.

DHS provides no evidence linking the BNP to the LeT, but rather cites to possible ties

between the LeT and the JMB. See [Name of DHS Doc at *].42

Given that the BNP is not

affiliated with the JMB, there is simply no evidence of a connection between the LeT and the

BNP. Moreover, given LeT’s allegiance to Pakistan and BNP’s nationalism, which is borne of

Bangladesh’s historical opposition to Pakistan, any suggestion even of affiliation, let alone

support, between the BNP and LeT could not be taken seriously.

3. The BNP is not affiliated with the HUJI-B.

To the extent that DHS asserts that the BNP is connected to HUJI-B, a Tier I terrorist

organization (see [Name of DHS Doc at *]), that assertion must fail as it is entirely premised on

unsubstantiated and politically motivated allegations regarding the son of the BNP’s leader,

Khaleda Zia.

As a threshold matter, the fact – even if true - that a single individual related by blood to

a leader of the BNP has ties to a terrorist organization would not suffice to establish that a group

or subgroup of the party engages in terrorist activity. See INA § 212(a)(3)(B)(vi)(III).

In any event, the charge against Ms. Zia’s son cannot serve as a basis for such a finding

because it is an entirely political charge that has never been accepted by any court.43

In 2007, the

AL party charged Tarique Rahman, Ms. Zia’s son, with abetting HUJI-B in the attempted

41


1, 2010), at 10. 42

DHS cites to International Crisis Group, The Threat from Jamaat-Ul-Mujahideen

Bangladesh (March 1, 2010), at 21-22. 43

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015), at

13.

assassination of the AL’s leader in 2004. In the intervening eight years, no court has ever

substantiated this charge, and the AL party similarly charged twenty seven other individuals with

the attempted assassination, including Ms. Zia herself, who was Prime Minister at the time.44

These charges were made as part of the AL’s larger, politically-motivated anti-BNP campaign.45

This type of suppression, through the use of trumped-up charges presented to the

judiciary, is not uncommon in Bangladesh. For example, the ruling AL also interfered with the

efforts of the Anti-Corruption Commission (ACC), a government agency tasked with

investigating corruption. The AL party forced the ACC to drop thousands of corruption cases

involving the AL, while maintaining most charges against the BNP and bringing new charges

against Khaleda Zia and her son Tarique Rahman.46

. The Department of State has noted that:

the government subjected the judiciary to political pressure, and cases involving

opposition leaders often proceeded in an irregular fashion. Corruption remained a

serious problem within the judiciary and was a factor in lengthy delays of trials,

which were subjected to witness tampering and intimidation of victims..47

* * * *

In sum, the evidence does not support DHS’ contention that the BNP party is a Tier III

terrorist group. The BNP is one of the two largest political parties in Bangladesh and previously

led a government that cracked down on international and domestic terrorist groups, for which it

received praise from the United States as a staunch counterterrorism ally. Neither the JMB nor

the HUJI-B are subgroups of the BNP, nor are they even affiliated with it. Similarly, there are

44

Id. 45

Id. 46


Country Reports on Human Rights Practices – 2010 (Apr. 8, 2011), available at

http://www.state.gov/j/drl/rls/hrrpt/2010/sca/154478.htm (last visited June 8, 2015). 47



http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper (last visited June 8,

2015).

no connections of any kind between the LeT and the BNP.

B. Even If The BNP Were “Affiliated With” a Terrorist Organization, Under

the Plain Language of INA § 212(a)(3)(B), Mere Affiliation With a Terrorist

Organization Alone Cannot Justify a Tier III Designation.

Even assuming arguendo that the BNP were affiliated with a terrorist organization,

absent an explicit determination that the BNP solicited funding, recruited individuals or provided

material support to said organization, the plain language of INA § 212(a)(3)(B)(vi)(III)

forecloses a finding that the BNP is a Tier III terrorist organization.

Under INA § 212(a)(3)(B)(vi)(III), a Tier III terrorist organization is defined as a “group

of two or more individuals, whether organized or not, which engages in, or has a subgroup which

[engages in terrorist activity].” The phrase ”engage in terrorist activity” is defined in INA §§

212(a)(3)(B)(iv)(I-VI); it includes, inter alia, committing and planning terrorist activities,

soliciting funds or recruiting individuals for terrorist activities or terrorist organizations, and

affording material support to a terrorist organization. Congress knows how to render

inadmissible individuals who are merely “affiliated with” a disfavored group, as it did so in a

neighboring provision.48

Given that Congress did codify an “affiliation with the Communist or

any other totalitarian party,” see, e.g., INA § 212(a)(3)(D), its decision not to codify an

“affiliation with” a Tier III group creates a strong inference that Congress did not intend to

impose inadmissibility based on mere affiliation. See Hamdan v. Rumsfeld, 548 U.S. 557, 578

(2006) (“a negative inference may be drawn from the exclusion of language from one statutory

provision that is included in other provisions of the same statute.”). A group’s mere affiliation

with a terrorist organization cannot justify classification as a Tier III terrorist organization.

48

See, e.g., INA § 212(a)(3)(D) (rendering inadmissible “[a]ny immigrant who is or has

been a member of or affiliated with the Communist or any other totalitarian party (or subdivision

or affiliate thereof), domestic or foreign.”) Emphasis added.

C. The Evidence Does Not Establish that the BNP Engages in Terrorist

Activities.

DHS likewise has not established, and cannot establish, that the BNP has engaged in

terrorist activities by participating in and inciting violence. See [Name of DHS Doc at *]. This

assertion is mistakenly based on a deep misunderstanding of Bangladeshi politics and an

incorrect understanding of the nature of the political activity that the BNP advocates.

First, while the BNP has routinely called for strikes and protests, this is a regular feature

of Bangladesh’s democracy. In contrast, the BNP has consistently condemned any violence

associated with strikes or other protests. For example, when the AL government refused to allow

an election overseen by a neutral care-taker government, as had been the practice since the

1990s, the BNP called for political protests.49

But, consistent with its historical position, the

BNP called for peaceful protests and denounced any associated violence.50

While there have

been recent violent political clashes in Bangladesh, the Department of State has described them

as “linked to criminal activities rather than to political motives.”51

Second, if DHS’ assertion were true, and routine violence arising from otherwise-lawful

strikes and protests constituted terrorist activity, DHS would have to deem every political party

49

International Crisis Group, Mapping Bangladesh’s Political Crisis at 1. 50

Letter from James F. Moriarity, U.S. Ambassador (ret.) to Bangladesh (April 17, 2015)

(“In the democracies of South Asia, calling for strikes and closures is a time-honored way of

movements and political parties… indeed the right to call for strikes is protected in Bangladesh’s

legal system”) see Exhibit __; Bangladesh firebomb attacks on bus and truck kill nine, British

Broadcasting Corp. (BBC), February 7, 2015, available at http://www.bbc.com/news/world-asia-

31191812

(last visited June 8, 2015); Bangladesh opposition leader Khaleda Zia charged over arson

attack, British Broadcasting Corp. (BBC), January 3, 2014, available at

http://www.bbc.com/news/world-asia-31127763 (last visited June 8, 2015). 51



http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper (last visited June 8,

2015).

in Bangladesh, and, indeed, most of the political parties in South Asia, as terrorist organizations.

This designation would include the governing AL party, to which the United States gave more

than $700 million dollars of aid between 2010 and 2012 and will give at least $5 billion dollars

in aid between 2012 and 2017.52

Violent protests and clashes regularly occur in Bangladesh, with political violence flaring

up in 1996, 2006 and most recently 2014 and 2015.53

According to the legal aid and human

rights NGO Ain o Salish Kendra (ASK), which the Department of State regularly cites, in 2014

more than 664 incidents of political violence occurred, resulting in 8,373 individuals injured and

147 deaths.54

Of the 664 incidents that occurred, only 146 involved the BNP in any way

(resulting in 31 deaths). Indeed, the AL fomented nearly twice as many political incidents; with

280 violent incidents involving 64 deaths.55

Significantly, these numbers do not include violence

committed by AL security forces, who have cracked down on the opposition through

extrajudicial killings of protestors - including bystander children - destruction of property, and

widespread arbitrary arrests.56

Any reading of INA § 212(a)(3)(B)(vi) that would classify the BNP as an undesignated

Tier III terrorist organization based on this type of political violence necessarily would require

52

See U.S. Overseas Loans and Grants (Greenbook), Program and Account Reports,

available at https://eads.usaid.gov/gbk/, accessed June 8, 2015; Embassy of the United States of

America in Dhaka – Public Affairs Section, USAID Celebrates 50th

Anniversary and 40 years

with Bangladesh, January 2012, available at

http://dhaka.usembassy.gov/embassy_press_releases_2012.html (last visited June 8, 2015). 53

See supra, n.3. 54

Bangladesh Country Reports on Human Rights Practices – 2010, Ain O Salish Kendra,

Breakdown of Inter Party and Police Clashes, January-December 2014. 55

Ain O Salish Kendra, Breakdown of Inter Party and Police Clashes, January-December

2014. 56

Human Rights Watch, Blood on the Streets: The Use of Excessive Force During

Bangladesh Protests, (August 2013), at 12-19, International Crisis Group, Mapping

Bangladesh’s Political Crisis (February 9, 2015) at 13.

the same finding with respect to the AL and every other political party in the country. Such a

reading would certainly run counter to Congressional intent, given the fact that Congress is

giving the AL billions of dollars in U.S. economic and military aid. Similarly, the resulting

implication—that Congress is materially supporting a terrorist organization—would be absurd.

IV. CONCLUSION

For the reasons stated above, the BNP is not a Tier III terrorist organization.

Accordingly, this Court should find that [insert as applicable]

[Respondent is eligible for asylum / withholding]

[this Court has jurisdiction to redetermine Respondent’s custody status and should order

Respondent’s immediate release [on bond in the amount of $_____ ]].

Dated: Respectfully submitted,

______________________

NAME OF ATTORNEY

[LIST OF EXHIBITS]

[ATTACH PROOF OF SERVICE]

EXHIBIT C

Nos. 13-56706, 13-56755 ______________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT _______________________________________

ALEJANDRO RODRIGUEZ, et al.,

Petitioners-Appellees/Cross Appellants,

v.

TIMOTHY ROBBINS, et al., Respondents-Appellants/Cross Appellees.

________________________________________

On Appeal from the United States District Court, Central District of California No. CV 07-3239-TJH (RNB)

_________________________________

PETITIONERS-APPELLEES/CROSS APPELLANTS’ REQUEST FOR JUDICIAL NOTICE

____________________________________

AHILAN T. ARULANANTHAM [email protected] MICHAEL KAUFMAN [email protected] ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 977-5297 JUDY RABINOVITZ [email protected] MICHAEL TAN [email protected] ACLU Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2618 Facsimile: (212) 549-2654

JAYASHRI SRIKANTIAH [email protected] Stanford Law School Immigrants’ Rights Clinic Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: (650) 724-2442 Facsimile: (650) 723-4426

SEAN COMMONS [email protected] WEN SHEN [email protected] Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896-6000 Facsimile: (213) 896-6600

Case: 13-56706 09/22/2014 ID: 9249376 DktEntry: 24-1 Page: 1 of 6 (1 of 90)

1

Pursuant to Federal Rule of Evidence 201, Petitioners respectfully request

that the Court take judicial notice of reports that the Government (hereinafter

“Respondents”) have submitted to the District Court to date concerning the

implementation of the permanent injunction and a statistical summary of the

contents of the first three such reports. The reports and statistical summary are

contained in Exhibits A and B to the Declaration of Caitlin Patler (“Patler Decl.”),

respectively.

Petitioners provide this information because this Court requested

information concerning the outcomes of bond hearings conducted pursuant to the

District Court’s preliminary injunction order when it heard Respondents’ appeal

from that order last year. During oral argument in that appeal, a member of the

panel requested—and government counsel provided—aggregate data regarding the

outcomes of the bond hearings conducted pursuant to the preliminary injunction.

The Court subsequently incorporated that information into its published decision

upholding the preliminary injunction. See Rodriguez v. Robbins, 715 F.3d 1127,

1131 n.2 (9th Cir. 2013).

When the District Court later granted summary judgment, it ordered

Respondents to provide reports to the Court and Petitioners about the outcomes of

the bond hearings it had ordered. See D. Ct. Order, ER 82.


2

Because aggregate information about the outcomes of these bond hearings

may again inform the Court’s decision, Petitioners now provide that information

for the Court’s benefit. The reports contain data produced by Respondents

regarding the provision of bond hearings pursuant to the preliminary and

permanent injunctions in this case. See Patler Decl. Exh. A. Petitioners have also

provided a summary of the reports’ contents, and a declaration that authenticates

and explains the summaries. See Patler Decl.; id. Exh. B.

Judicial notice may be taken at any stage of the proceeding, including by an

appellate court during the pendency of an appeal. Fed. R. Evid. 201(d); Lowry v.

Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003); Circuit Advisory Committee Note

Seven to Ninth Circuit Rule 27-1. Judicial notice is appropriate for any matter “not

subject to reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.” Fed.

R. Evid. 201(b).

Here, the reports in Exhibit A are properly subject to judicial notice because

they “can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.” The reports consist of data Respondents

extracted from government databases that summarize orders of immigration judges

that grant or deny bond to class members. “Judicial notice is properly taken of

orders and decisions made by other courts or administrative agencies.” Papai v.

Harbor Tug & Barge Co., 67 F.3d 203, 207 n.5 (9th Cir. 1995), rev’d on other


3

grounds, 520 U.S. 548 (1997); Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th

Cir. 2002) (“[A] Court may take judicial notice of the rules, regulations and orders

of administrative agencies issued pursuant to their delegated authority.”) (internal

citation and quotations omitted). United States v. Ferguson, 681 F.3d 826, 834 (6th

Cir. 2012) (“‘Judicial records are a source of ‘reasonably indisputable accuracy’

when they record some judicial action such as dismissing an action, granting a

motion, or finding a fact.’”) (quoting 21B Charles Alan Wright et al., Federal

Practice and Procedure § 5106.4 (2d ed. 2005)). Such data is also regularly relied

upon by the government in immigration proceedings. Cf. Fed. R. Evid. 803(6), (8).

For these reasons, the reports satisfy the “‘essential prerequisite’ to taking judicial

notice of an adjudicative fact”—readily determinable accuracy. Rivera v. Philip

Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005) (quoting Fed. R. Evid. 201(a) &

(b) advisory committee’s notes).

For the convenience of the Court, Petitioners also have summarized the data

within the first three status reports. See Patler Decl. Exh. B. Petitioners have

compiled those summaries both because the Court’s prior opinion cited the data in

that form—i.e., as a statistical summary—and because Respondents’ raw data on

the hundreds of bond hearings conducted under the preliminary and permanent

injunctions would not be useful to the Court unless summarized.

The Court can take judicial notice of these summaries because they reflect

simple mathematical calculations (i.e. addition, averaging). See Patler Decl. ¶ 4;


4

Miller v. Fed. Land Bank of Spokane, 587 F.2d 415, 422 (9th Cir. 1978) (“This is a

matter of mathematics, of which the court could and should have taken judicial

notice.”); Moore v. Matthews, 445 F. Supp. 2d 516, 525 n.7 (D. Md. 2006) (taking

judicial notice of simple mathematical calculation, and collecting cases finding

such calculations properly subject to judicial notice); see generally 21B Fed. Prac.

& Proc. Evid. § 5105, “Combinatorial Common Knowledge” (2d ed.);

1 Weinstein’s Federal Evidence § 201.12 (2014). In addition, should there be any

concern about the accuracy of the mathematical calculations, Petitioners have

included the underlying reports so that they can be independently verified. See

Patler Decl. Exh. A.

For the foregoing reasons, Petitioners respectfully request that the Court take

judicial notice of the reports attached as Exhibit A and the statistical summaries

attached as Exhibit B.

Respectfully submitted, SIDLEY AUSTIN LLP Dated: September 22, 2014 s/ Sean Commons_____________ SEAN COMMONS Counsel for Petitioner


5

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the

Clerk of the Court for the United States Court of Appeal for the Ninth Circuit using

the appellate CM/ECF system. Participants in the case who are registered CM/ECF

users will be served by the appellate CM/ECF system.

DATED: September 22, 2014

/s/ Sean Commons________________ SEAN COMMONS Counsel for Petitioner


Nos. 13-53706, 13-56755

______________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT _______________________________________


Petitioners-Appellees/Cross Appellants,

v.

TIMOTHY ROBBINS, et al., Respondents-Appellants/Cross Appellees.

________________________________________

On Appeal from the United States District Court, Central District of California No. CV 07-3239-TJH (RNB)

_________________________________

DECLARATION OF DR. CAITLIN PATLER IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE

____________________________________

AHILAN T. ARULANANTHAM [email protected] MICHAEL KAUFMAN [email protected] ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 977-5297 JUDY RABINOVITZ [email protected] MICHAEL TAN [email protected] ACLU Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2618 Facsimile: (212) 549-2654

JAYASHRI SRIKANTIAH [email protected] Stanford Law School Immigrants’ Rights Clinic Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: (650) 724-2442 Facsimile: (650) 723-4426

SEAN COMMONS [email protected] WEN SHEN [email protected] Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896-6000 Facsimile: (213) 896-6600


1

DECLARATION OF CAITLIN PATLER

I, Dr. Caitlin Patler, hereby declare:

1. I am a University of California President’s Postdoctoral Fellow in the

UC Irvine Department of Criminology, Law and Society. I received my Ph.D. in

Sociology from UCLA in 2014, where I was a National Science Foundation Graduate

Research Fellow, a Ford Foundation Diversity Fellow, and a UCLA Center for the

Study of Women Paula Stone Legal Research Fellow. I received my M.A. in

Sociology at UCLA in 2009, and my B.A. with College Honors, Magna Cum Laude,

in Sociology and Chicana/o Studies from UCLA in 2003.

2. I have extensive training, expertise, and experience in quantitative

analysis and methodology, having completed courses in survey research

methodology, statistics, and advanced quantitative data analysis.

3. Petitioners’ counsel gave me a true and correct set of reports and

spreadsheets that the Government filed as part of its compliance reporting in

Rodriguez v. Robbins. The status reports and supporting spreadsheets were filed on

November 4, 2013, January 28, 2014, Feburary 7, 2014, April 4, 2014, April 28,

2014, May 15, 2014, July 28, 2014, and September 15, 2014. These reports are

reflected on the district court docket as Dkt. 377, 405, 408, 411, 412, 417, 420, 422

and 429. Attached here to as Exhibit A are true and correct copies of these status

reports and spreadsheets.

4. I have summarized the data contained in the spreadsheets accompanying

the first three status reports that were filed on on November 4, 2013 (“13-11-04

Spreadsheet 01 -- Accompanying Status Report 01”), January 28, 2014 (“14-01-28

Spreadsheet 02 -- Accompanying Status Report 02”), Feburary 7, 2014 (“14-02-07

Spreadsheet 02 -- SUPPLEMENTAL -- Accompanying Status Report 02”), and April

28, 2014 (“14-04-28 Spreadsheet 03 -- Accompanying Status Report 03” and “14-

04-28 ACLU Identified Missing SS Entries 4_28_2013”). I conducted the summaries

without performing any techniques that require advanced statistical training or


2

understanding, using just simple mathematical formulas (such as addition or

averaging). Attached hereto as Exhibit B is a true and correct copy of tables

containing the summarized data.

5. The government status reports include data on approximately 2,068

individuals who were scheduled for a bond hearing under the preliminary and

permanent injunctions, and provides data on the outcome of 1,680 bond hearings

where bond was either granted (in some amount) or denied.

6. The government’s status reports also include data on the outcomes of

approximately 270 bond appeals filed by immigration detainees. Exhibit B groups

these 270 appeals into three groups: (a) instances where an appeal was remanded for

further proceedings; (b) instances where an appeal was labeled as “dismissed,”

“affirm decision,” “summary affirmance,” “sustain,” or “dismiss appeal/affirm IJ

decision”;1 and (c) instances where an appeal was labeled as “withdrawn/appeal

withdrawn,” “lacks jurisdiction,” “moot bond,” “pending” or “other.”

I declare under penalty of perjury of the laws of the State of California and the

United States that the foregoing is true and correct to the best of my knowledge and

belief. Executed this 22st day of September, 2014, in Los Angeles, California.

__________________ CAITLIN PATLER

1 “IJ” is used as an abbreviation for Immigration Judge.

belief. Executed this 22st day of September, 2014, in Los Angeles, California.

__________________


EXHIBIT A


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STUART F. DELERY Principal Assistant Attorney General Civil Division DAVID J. KLINE Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON Trial Attorney Attorneys for Respondents

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. CV 07-3239-TJH (RNBx) RESPONDENTS’ FIRST STATUS REPORT ON IMPLEMENTATION OF THE AUGUST 6, 2013 FINAL ORDER AND PERMANENT INJUNCTION Hon. Terry J. Hatter, Jr.


Petitioners, vs.

TIMOTHY S. ROBBINS, in his capacity as U.S. Immigration and Customs Enforcement, Los Angeles District Field Office Director, et al.,

Respondents.

)) ) ) ) ) ) ) ) ) ) ) ) )

Respondents submit the following status report on the implementation of this

Court’s August 6, 2013 Order, Judgment and Permanent Injunction.

OVERVIEW AND SUMMARY

This report details (1) steps taken by U.S. Immigration and Customs

Enforcement (“ICE”) to implement a system for the identification of current and

future class members; (2) steps taken by ICE and the Executive Office for

Immigration Review (“EOIR”) to ensure the automatic-scheduling of bond hearings

for aliens whose detention at 180 days will qualify them as class members and entitle

them to an automatically-scheduled Rodriguez hearing by the 181st day of their

Case 2:07-cv-03239-TJH-RNB Document 377 Filed 11/04/13 Page 1 of 30 Page ID #:8533Case: 13-56706 09/22/2014 ID: 9249376 DktEntry: 24-3 Page: 2 of 71 (11 of 90)

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detention; (3) steps taken by EOIR and the immigration courts within this district to

notify detainees, their representatives, and class counsel of the date, time, and location

of the automatically-scheduled bond hearings; and (4) other steps taken by

Respondents to comply with the Order.

Respondents are contemporaneously sending by e-mail to counsel for

Petitioners, and will file under seal with this Court, an Excel spreadsheet containing

information about the bond hearings that have been held under both the preliminary

and permanent injunction. Although the Order does not require Respondents to report

information regarding bond hearings granted under the preliminary injunction – the

August 6, 2013 Order only requires periodic reporting of certain information about

current and future class members – Respondents have endeavored to provide the

ordered information for all detainees provided with bond hearings since September 12,

2012. Accordingly, the spreadsheet details information about more than 1,300

Rodriguez bond hearings held within this district dating back more than a year.1

Respondents included information about bond hearings granted under the preliminary

injunction to provide this Court with assurance that Respondents take their obligations

under this Court’s orders seriously, and to document efforts made by Respondents

over the past year to comply with this Court’s directives.

This status report was compiled from information gathered from ICE; EOIR;

and from staff and administrators at the various immigration court locations within

this district.

As this report details, ICE, EOIR, and the immigration courts have taken

numerous and significant steps in short order to effectively create and implement an

entirely new regime for the identification of Rodriguez class members; to

automatically schedule and hold bond hearings before immigration judges for those 1 In Respondents’ ex parte application for an extension of time to file this report, undersigned counsel inadvertently transposed the number of entries from his notes, reporting that there were more than “2,100” hearings, when in fact estimates at that time were that the spreadsheet would contain more than 1,200 entries.


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class members; and to provide clear and comprehendible written notice to aliens, their

representatives, and class counsel of automatically-scheduled bond hearings. Because

the bond hearing regime ordered by this Court is new and requires the coordinated

efforts of different government agencies, refinements have been made and will

continue to be made over time to the system described below. Accordingly,

Respondents are committed to notifying class counsel and this Court of any

corrections or revisions to any information contained in this report or in the

accompanying spreadsheet, and to do so sooner than the next 90-day reporting period

established by this Court, if warranted.

RELEVANT PROCEDURAL BACKGROUND

On September 12, 2012, this Court entered a preliminary injunction ordering

Respondents to provide bond hearings at six months to two distinct subclasses in this

action: aliens detained under 8 U.S.C. §§ 1225(b) and 1226(c). ECF No. 255.

Following the entry of this Court’s preliminary injunction, and beginning before the

effective date of November 13, 2012,2 Respondents began providing bond hearings

consistent with the preliminary injunction to the sections 1225(b) and 1226(c)

subclass members.

On August 6, 2013, this Court entered a final order, judgment, and permanent

injunction in this action. ECF No. 353 (the “Order”).3 The Order requires

Respondents to provide bond hearings, under a clear and convincing evidence

standard with the burden of proof on the Government, to all class members by their

181st day of detention. The Order also requires Respondents to make periodic reports

as follows:

2 The U.S. Court of Appeals for the Ninth Circuit denied Respondents’ motion for a stay pending their appeal of the preliminary injunction, but granted an extension of time for Respondents to provide bond hearings under the preliminary injunction from October 13, 2012, to November 13, 2012. 3 The parties have filed notices of appeal of the Order.


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Within 60 days of the date of this Order, Respondents shall file a status report describing the steps taken to timely identify all current and future class members and to ensure that they receive bond hearings and notice of those hearings. Along with the status report, Respondents shall file under seal (with a copy served on class counsel) a list containing [1] each class member’s name and [2] alien number, [3] the date of any scheduled or completed bond hearing, [4] whether the class member is or was represented, [5] the Immigration Judge who conducted or will conduct the hearing, [6] the bond amount set, if any, and [7] whether any appeal has been taken. Respondents shall file and serve an updated status report and class member list every 90 days thereafter until August 1, 2015. The updated reports and lists shall include the information for all class members in detention as of the date of the prior report.

Order at 5. On October 4, 2013, this Court granted Respondents’ ex parte application

for a temporary stay due to a lapse in appropriations, and ordered Respondents to file

this report within 10 days of October 17, 2013. ECF No. 364. This Court later

extended the deadline by one week to accommodate Respondents. ECF No. 375.

STEPS TAKEN TO IDENTIFY CLASS MEMBERS

The Order first requires Respondents to describe “the steps taken to timely

identify all current and future class members…” Order at 5.

A. Description of the Class Members

ICE identifies Rodriguez class members based on the certified class definition.

The certified class is defined as “all non-citizens within the Central District of

California who: (1) are or were detained for longer than six months pursuant to one of

the general immigration detention statutes [8 U.S.C. §§ 1225(b), 1226, or 1231(a)],

pending completion of removal proceedings, including judicial review, (2) are not and

have not been detained pursuant to a national security detention statute, and (3) have

not been afforded a hearing to determine whether their detention is justified.” See

ECF Nos. 77 (class certification), 161 (subclass certification). There are several

exceptions that Petitioners have identified: (1) individuals “detained pursuant to the

one of the national security detention statutes at 8 U.S.C. 1226a and 8 U.S.C. 1531-

37”; (2) individuals subject to “a final order of removal and no stay of that removal


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order, such that the government has legal authority to remove them”; and (3)

“juveniles … held under the care of the Office of Refugee Resettlement.” ECF No.

111 at ¶¶105-08.

Following the Order, which clarified the scope of the class, included within the

class are aliens detained while being processed for reinstatement under 8 U.S.C. §

1231(a)(5), aliens detained for proceedings initiated by an administrative removal

order under 8 U.S.C. § 1228(b), and aliens detained under the general immigration

statutes after entering the United States through the Visa Waiver Program.4

B. ICE’s Identification of Rodriguez Class Members

1. After this Court entered the preliminary injunction, ICE Enforcement and

Removal Operations (“ERO”) began to query, on a weekly basis, ICE’s detention and

4 In their Motion Concerning Non-Compliance, which Respondents oppose in a response to be filed contemporaneously with this report, Petitioners have raised the narrow issue of whether certain aliens fall within the class. Petitioners have not sought clarification of the class with respect to this category of aliens, as they did when the parties disputed whether aliens in withholding-only proceedings and aliens admitted under the Visa Waiver Program were included in the class definition. Specifically, Petitioners contend that aliens whose appeal to the Board of Immigration Appeals has been dismissed – and whose administrative orders of removal are therefore are administratively final – but who have not filed a petition for review and sought a stay of their removal, fall within the class if their detention reaches 180 days after the Board has dismissed their appeal, but before the 30-day deadline to file a petition for review with the Ninth Circuit. Under 8 U.S.C. § 1231(a)(2)(B)(i), those aliens are within the statutorily-defined removal period, and are subject to “a final order of removal and no stay of that removal order, such that the government has legal authority to remove them.” ECF No. 111, ¶ 105. Thus, such aliens decidedly fall within one of Petitioners’ own “carve-out” exceptions to the class definition. Id. Furthermore, the Order explicitly states that an individual only falls within the class if that individual has been detained in the Central District for six months or longer and “remains detained even though the government does not have present authority to deport that individual…” An individual with a final order of removal and no pending petition for review is an individual that the government has present authority to remove, and thus falls outside the class. In any event, this matter is presently before the Court on Petitioners’ motion.


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removal electronic database through its ENFORCE Module5 weekly to identify all

current detainees within the Central District of California who had been in custody for

150 days. To avoid multiple reports of the same alien, ERO removed from the

weekly reports the names of aliens who were previously reported. ERO then

conducted a review of information within the ENFORCE Module to determine which

aliens were detained under 8 U.S.C. §§ 1225(b) or 1226(c). If there was any

uncertainty as to the statutory basis for the detention authority, ERO took the

conservative measure of including the alien on the list. Under the preliminary

injunction, ERO then sent the list to the ICE’s Office of Chief Counsel, Los Angeles

(“OCC”) for review and processing as described in paragraph 5 below.

2. Since the Order issued on August 6, 2013, ERO has queried the

ENFORCE Module at least once each week to identify all aliens detained at that time

within the Central District of California for 140 days. To avoid multiple reports of

the same alien, ERO removes from the weekly reports the names of aliens who have

been previously reported.

3. ERO also checks its Ninth Circuit email inbox, to which the Ninth

Circuit sends emails regarding newly-filed Petitions for Review (“PFR”) of

immigration cases. ERO checks the email inbox to see if the recent PFRs were filed

by aliens in detention for 140 days. If so, ERO includes the alien in the list.

4. Each week ERO sends the list of individuals that have been detained 140

days and fall within the parameters of the class to OCC for review.

5. OCC reviews the list to determine whether each alien falls within the

Rodriguez class. Prior to the Court’s August 6, 2013 Order, OCC reviewed the list to 5 In the course of discovery in this action, Respondents designated two witnesses to testify at a deposition regarding the ICE electronic database. Those witnesses testified at length regarding the database, and ICE’s use of the ENFORCE Module to identify aliens whose detention reached or exceeded six months, including in the context of ICE’s use of the database suite of software to produce the list of more than 1,000 aliens detained for six months or longer during a one-year period relevant to discovery.


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determine whether each alien fell within the preliminary injunction subclass (i.e. was

detained pursuant to 8 U.S.C. §§ 1225(b) or 1226(c)). Currently, OCC reviews the list

to determine if the alien is detained under one of the four challenged detention statutes

– 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), or 1231(a). OCC notes which listed aliens

require a Rodriguez bond hearing. Examples of aliens who would not require a

Rodriguez bond hearing include: aliens who received administratively final orders of

removal after ERO delivered the weekly list to the OCC; aliens who already had a

Rodriguez bond hearing or a bond hearing that comports with the requirements in

Rodriguez; and aliens who were already granted bond but have not yet posted that

bond with ERO. If eligibility for a Rodriguez bond is unclear, OCC treats the case as

a potential class member and includes it on the list.

6. Each week OCC sends to EOIR its reviewed list of aliens who are or will

become Rodriguez class members during the next 30 days and who require a bond

hearing. That list provides names, A numbers and the book-in dates (date entered into

ICE custody). Where possible, OCC identifies the potential class members to EOIR

prior to the aliens reaching 150 days of detention (i.e., OCC conservatively allows ten

days for its own review, if necessary) so that EOIR has sufficient time (30 days at a

minimum) to schedule the hearing and provide notice to the class member and to class

counsel. Infrequently, potential class members come to OCC’s attention after the 150

day mark. Examples include: where a detained alien who has been in ICE custody

more than 180 days is transferred into a facility within the Central District, or where

an alien has his or her removal proceedings reopened while in detention. Such aliens

may become Rodriguez class members after reaching 180 days in custody. When

informed of such occurrences, OCC includes those aliens in the next list provided to

EOIR.

* * *

Accordingly, ICE has developed a system of procedures to identify aliens

detained for 140 days; to convey the list of such aliens to OCC for review and


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inclusion on the list sent to EOIR; to conservatively include on that list aliens whose

inclusion in the class is uncertain; and to send the list to EOIR with sufficient lead

time to allow for the scheduling of bond hearings by the immigration court.

STEPS TAKEN TO AUTOMATICALLY SCHEDULE BOND HEARINGS AND ISSUE WRITTEN NOTICE OF THOSE HEARINGS

The Order first requires Respondents to describe “the steps taken . . . to ensure

that [class members] receive bond hearings and notice of those hearings…” Order at

5.

A. Overview of the Los Angeles Immigration Court

In understanding how the immigration court automatically schedules bond

hearings, it is important to first provide this Court with a brief overview of the Los

Angeles Immigration Court and the detention facilities in the Central District of

California.

DHS detainees in the greater Los Angeles area are generally housed in a

number of different facilities run by different entities contracted by the DHS. The

Adelanto Detention Facility in San Bernardino County (“ADL”) is a privately run

detention facility opened in November 2012. DHS also has contracted with the

Orange County Sheriff’s Department (“OCSD”) to house DHS detainees at their Theo

Lacy, James Musik and Santa Ana jail locations. Theo Lacy only houses male

detainees for DHS. James Musik houses both males and females. The Santa Ana

facility is an umbrella name for a number of smaller OCSD jails wherein DHS will

transport aliens to the Santa Ana jail location for their Immigration Court hearings.

The Immigration Court currently has seven immigration judges assigned solely

to dockets of removal proceedings of detained aliens (the “Detained Docket”). Four

judges are assigned to Adelanto cases. Out of these four, three immigration judges

hear detainees in-person at the ADL facility, while one additional judge located in

downtown Los Angeles at 606 South Olive Street hears Adelanto cases via video-

teleconferencing (“VTC”). Three immigration judges hear cases at the Orange


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County facilities. Out of these three, two immigration judges hear cases on the

Detained Docket in person at the Federal Building at 300 North Los Angeles Street

(the “LA3” location for database purposes), while one additional immigration judge

located in downtown Los Angeles at 606 South Olive Street hears Detained Docket

cases via VTC. Aliens whose cases previously heard by the Los Angeles Immigration

Court, and who are subsequently taken into custody or detained in other locations

throughout the country who file motions for bond hearings, are denoted as Los

Angeles (or “LOS”) cases for record purposes.

B. Process Followed by the Los Angeles Immigration Court

in Scheduling Rodriguez Bond Hearings

Court personnel have been instructed by Assistant Chief Judge Thomas Y.K.

Fong that the scheduling of bond hearings under Rodriguez is of significant

importance, and that the procedures for scheduling a hearing must be followed in each

case.

When the list sent by OCC identifying aliens within the Rodriguez class is

received by the immigration court point of contact, the following steps are taken:

1. Immigration court administrators check each detainee’s A number

against EOIR’s electronic database, accessed through the CASE software program6, to

ascertain that a bond hearing has not already been scheduled because of a previously

submitted motion for bond.

2. Immigration court administrators then review, for each alien, the book-in

date obtained by ICE. The list of detainees for whom a bond hearing must be

scheduled is then emailed by immigration court administrators to the appropriate court

staff at each of the immigration court locations to set the hearing date.

6 In the course of discovery in this action, Respondents designated a witness to testify at a deposition regarding the EOIR electronic database. That witness testified at length regarding the database, and EOIR’s use of CASE to record information regarding individual proceedings before the immigration court.


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3. Each scheduling e-mail is marked as a “PRIORITY” task and contains

information and instructions for scheduling the hearing. Those instructions (1)

identify each detainee by first and last name; (2) identify each detainee by A number;

(3) identify each detainee’s book-in date, i.e., the date of initial detention; (4) identify

the Los Angeles Immigration Court location responsible for scheduling the hearing

(e.g., OCSD, LA3); and (5) identify the date after which a Rodriguez hearing is to be

scheduled (e.g., for an alien detained beginning on May 20, 2013, the e-mail will

instruct the legal assistant to “Schedule after 11/16/13”). Court staff then schedules

each bond hearing date in response to the e-mail for a date close to the 180th or 181st

day.7 Each scheduled hearing date is inputted into CASE.

C. Process for Issuing Written Notice of the Hearing

1. Written hearing notices are generated by court staff at each immigration

court location. Exemplars of notices sent under the preliminary injunction are

attached as Attachment 1. Exemplars of notices sent out under the permanent

injunction are attached as Attachment 2.

7 There is an issue of jurisdictional and scheduling clarity that will need to be addressed by the parties. In the course of preparing this Report, counsel for Respondents discovered that the Order has created confusion among immigration judges because aliens do not become class members until their 180th day of detention, but the Order requires a bond hearing by the 18st day of detention. This has led to circumstances where jurisdiction has been denied because the alien has not fallen within the class, a situation created by the immigration court administrators scheduling a bond hearing before the 180th day – and before the alien becomes a class member – in order to comply with the Court’s Order that the hearing be held “by” the 181st day of detention. A possible solution Respondents will explore with Petitioners is the modification of the Order to require Respondents to hold the bond hearing by the 195th day of detention – a solution employed in at least one other case in this district, See Franco-Gonzalez v. DHS, No. 10-CV-0221-DMG (C.D. Cal.), ECF No. 593 ¶ 7. This would ensure that bond hearings are held after detainees have become members of the class, without the requirement that they have a bond hearing within one day of becoming a class member.

Case 2:07-cv-03239-TJH-RNB Document 377 Filed 11/04/13 Page 10 of 30 Page ID #:8542


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2. Once generated, each hearing notice is scanned and e-mailed to EOIR

headquarters in Falls Church, Virginia, and identified in the subject line as “DHS

IDENTIFIED.” The scanned hearing notices are distributed to the Assistant Chief

Immigration Judge; the Supervisory Legal Assistant; the Administrative Assistant; the

Court Administrator; and the Office of the General Counsel.

3. Written hearing notices are then served on the detainees and their

immigration attorneys, if any. Aliens who are detained at Theo Lacy and James

Musik facilities receive their notices care of the OCSD/ERO Custodial Officer by

Federal Express to the Theo Lacy address; aliens detained at Santa Ana receive their

hearing notices the OCSD/ERO Custodial Officer by Federal Express to the Santa

Ana facility address. If a case is on appeal, but the Record of Proceeding contains a

previously filed notice of representation by an attorney (an “EOIR-28” form), the

attorney is sent a copy of this bond notice. However, if a new EOIR-28 has been

submitted for the instant bond hearing (if previously requested by motion, for

example)8 then the notice is sent to that attorney.

4. Prior to October 23, 2013, copies of the written hearing notices were sent

by e-mail from the EOIR Office of General Counsel to counsel for Respondents,

Theodore W. Atkinson and Sarah S. Wilson, who then forwarded the written notices

8 Although bond hearings are automatically scheduled, in a number of cases detainees or their immigration attorneys have made a written request or filed a motion for a bond hearing under Rodriguez. In those cases, the immigration court follows a different set of procedures. Generally, the bond motion is checked for legal sufficiency and compliance with the Immigration Court Practice Manual (if filed by an attorney, court staff checks to make sure that the motion includes an EOIR-28, contains a Certificate of Service upon the DHS, and otherwise comports with motion requirements). If the motion is filed by a pro se respondent, the court will stamp the motion with the “Served on DHS” stamp and provide a copy of the motion to DHS (often there is no Certificate of Service when an alien files a bond motion pro se). If there is no bond hearing already scheduled or pending, then the matter is scheduled for the next available session for a bond hearing. Written notice is served in the same manner as described in this report.



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to counsel for Petitioners. However, in an effort to increase the efficiency of the

process of notifying class counsel of hearing dates, and to minimize the number of

links in a multiple e-mail chain, beginning on or about October 23, 2013, the Los

Angeles Immigration Court has begun mailing copies of issued written notices to

Petitioners’ counsel, Michael Kaufman, Staff Attorney, ACLU of Southern California,

1313 West 8th Street, Los Angeles, CA 90017 (counsel for Respondents continue to

send e-mail copies of notices to Mr. Kaufman, a redundant system that will be

discontinued once the mailing system has been up and running for a period of time).

The parties previously agreed that copies of the written notices could be sent to Mr.

Kaufman as the point of contact for class counsel.

* * * Because ICE generates a list of potential Rodriguez class members at their

140th day of detention, and provides that list to the Los Angeles Immigration Court

approximately 30 days before the 180th day of detention, immigration court staff has

sufficient time to allow for the scheduling of bond hearings and the issuance of written

notice. That process follows a set of procedures developed by immigration court staff,

including Judge Fong, for the timely scheduling of Rodriguez bond hearings going

forward. In addition, the written notice complies with this Court’s Order by providing

clear, comprehendible notice of the date, location, and time of the automatically-

scheduled bond hearings, which are provided to detainees, their immigration counsel,

if any, and to class counsel.

ADDITIONAL COMPLIANCE MEASURES

In seeking to ensure compliance with this Court’s preliminary and permanent

injunctions, Respondents have taken steps beyond what was required by this Court in

its injunction orders.

First, since in or around November 2012, Respondents have voluntarily

provided class counsel for Petitioners with copies of written notices identifying the

date, location, and times of Rodriguez hearings, in advance of those hearings. This

step was taken to permit counsel for Petitioners with an opportunity to attend bond



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hearings so that counsel for Petitioners could see first-hand the steps taken by

Respondents to comply with this Court’s injunctions.

Second, beginning in November 2012, undersigned counsel for Respondents

requested that EOIR provide counsel, for litigation purposes, with a periodic report of

efforts taken by the immigration court to schedule and hold Rodriguez hearings.

These reports were produced on a weekly basis from November 2012 until

approximately May 2013, at which time EOIR generated those reports at counsel’s

instructions on a monthly basis. Those reports identified Rodriguez bond hearings

held and contained the types of information this Court ordered to be produced on a

periodic basis as part of the monitoring and reporting requirements of the permanent

injunction. Notably, while these reports contained up to date information on

Rodriguez bond hearings so undersigned counsel could track compliance with the

injunctions, the spreadsheet accompanying this report was created separately by

Respondents for production to class counsel and this Court.

Third, as noted above, Respondents included within the accompanying

spreadsheet information dating back to the September 12, 2012 preliminary injunction

for all detainees provided with a Rodriguez hearing, regardless of whether that hearing

was held under the preliminary injunction, or held or scheduled under the permanent

injunction.

NOTES ON THE ACCOMPANYING SPREADSHEET

In its Order, this Court ordered Respondents to “file under seal (with a copy

served on class counsel) a list containing each class member’s name and alien number,

the date of any scheduled or completed bond hearing, whether the class member is or

was represented, the Immigration Judge who conducted or will conduct the hearing,

the bond amount set, if any, and whether any appeal has been taken.” Order at 5.

In complying with this instruction, Respondents created an Excel spreadsheet

detailing the information required by the Court. The spreadsheet contains the

following columns: (1) the detainee’s last name; (2) the detainee’s first name; (3) the



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detainee’s A number; (4) the date the detainee was provided with a Rodriguez hearing,

or the date a Rodriguez hearing is scheduled for the detainee; (5) whether the class

member is represented (as indicated in the field named “Represented”); (6) the name

of the immigration judge who conducted the hearing; (7) the bond amount set, if any;

and (8) whether any appeal to the Board of Immigration Appeals has been taken. In

addition, the spreadsheet includes information not required by this Court’s Order: (9)

the spreadsheet identifies whether alternatives to detention were ordered in Rodriguez

hearings included in the spreadsheet; (10) and the spreadsheet also indicates the action

taken by the immigration court if bond was not granted or denied. Notes on each

column are provided below.

A. Method of Collection

The spreadsheet was created from information provided by ICE, EOIR, and the

immigration courts. Not all of the information could be reliably culled from a single

database. ICE generally has better or more information on detention and class

member identification, and the immigration courts have better or more information on

representation, the identity of immigration judges, the outcomes of hearings and

whether an appeal has been taken in an individual case. The information was

collected from electronic databases, as well as through individual review of Records

of Proceedings (“ROPs”) where electronic database information was unavailable. In

several cases, information was manually inputted into the spreadsheet after a check of

the ROP in a given case, whereas other information was derived from electronic

databases of both ICE and EOIR.

Most of the information about hearing outcomes and hearing dates came

directly from court personnel at the immigration court. In almost every case, the

information has been reported at least twice – once to counsel for Respondents over

the course of the past year as part of the compliance reporting requested by counsel

for litigation purposes, and again when Respondents separately created the

spreadsheet for this report. Because information has been reported on different



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occasions, prior reports were used by counsel to check against the accuracy of the data

in the accompanying spreadsheet. At the same time, both ICE and EOIR conducted

reviews of the spreadsheet to cross-check the accuracy of much of the information

originally reported by a different component. The spreadsheet was created and

reviewed with the input and assistance of numerous employees and counsel at ICE,

EOIR, and at the immigration court.

B. Notes on the Information in Each Column

Respondents note the following definitions and descriptions with respect to

each column on the accompanying spreadsheet:

(1) Alien Name and A Number: The first two columns identify the detainee

by last name and first name. The third column identifies the alien’s A number. In a

very small number of cases, information about the alien name and A number did not

initially match when inputted into the spreadsheet. In resolving this discrepancy,

EOIR and ICE generally conducted separate inquiries of their systems to identify

those aliens where the alien name could not be matched with an A number, or vice

versa.

(2) The hearing date – This is the date of the detainee’s Rodriguez hearing,

based on either reliable database information or on information reported by the

immigration court with respect to an individual case. A date after the date of this

report indicates that a bond hearing has been scheduled for that date, and/or the fact

that the hearing is to be scheduled is noted on the spreadsheet. Detainees whose

Rodriguez hearings have been scheduled to occur in the future, but before the next 90-

day report, will be included in Respondents’ next report to this Court and to class

counsel, so that outcome information for those aliens will be up to date.

(3) Representation: Information regarding whether an alien is represented in

proceedings is derived primarily from information contained in CASE, and was

collected in a manner similar to the attorney information gathered and produced

during the course of discovery. Respondents note that the column provides



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information based on the most recent EOIR-28 information. It is possible, however,

that the attorney identified as representing the alien may not have been present at the

Rodriguez hearing, or may have withdrawn before the Rodriguez hearing, but without

individually reviewing each hearing record – a significantly burdensome task – the

information provided is the most accurate information available.

(4) Hearing Result – This column contains information not required by the

Order, but which Respondents provide to more comprehensively show the outcome

beyond simply reporting whether bond was set or denied. The “Hearing Result”

column contains one of the following:

(a) Where a bond amount is reported as a dollar figure, that figure

represents the bond amount set by the immigration judge. A dollar figure in this

column indicates that the immigration judge granted bond, in the amount shown.9

(b) “No bond” means that the immigration denied bond on a

conclusion that the detainee is found to be flight risk or danger to the community after

presentation of evidence at the bond hearing. This indicates that the alien, at the time

of reporting, remains detained.

(c) “ATD” means alternatives to detention. Although not required

under this Court’s Order, where readily available information is available

Respondents have also identified if ATD was ordered by the Court. This information,

provided by ICE, means that the bond decision could include (in addition to a bond

amount) an order that the alien be placed on electronic monitoring (such as through a

GPS tracking device, or telephonic reporting, or both), but it is not limited to

electronic monitoring. ATD could also include office visits, random home visits, etc.

(d) “No jurisdiction” means that the immigration judge neither granted

nor denied bond, but instead determined that the alien was not a Rodriguez class 9 Due to the government shutdown, results of bond hearings conducted just prior to and during the shutdown are generally not reported because that information has not been formally recorded in electronic databases in CASE. Those detainees’ cases will be included in the next status report and spreadsheet.



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member. The immigration judge may have reached this conclusion for various

reasons, including (1) the alien was detained less than 180 days at the time of the

hearing; (2) the alien had a final removal order and had not obtained a stay of removal

or filed a petition for review with an accompanying request for a stay; or (3) the alien

already had a heightened bond hearing in compliance with V. Singh v. Holder, 638

F.3d 1196 (9th Cir. 2011), pursuant to Casas-Castrillon, 535 F.3d 942 (9th Cir. 2008),

Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), or some other authority. In cases

where the alien had not reached 180 days of detention, those aliens will be reported on

in future status reports, provided they fall into the class definition and receive a

Rodriguez hearing. Similarly, if aliens who were not in the class at the time of their

hearings because there was no judicial impediment to removal become class members

(such as through filing a petition for review and obtaining a stay of removal, in

addition to detention for six months), those aliens will be included in future reports.

(e) “Other” means that the Court did not reach a bond decision because the

alien is not entitled to a bond for reasons other than lack of jurisdiction. These

determinations include circumstances in which an alien was removed or released prior

to the date of the scheduled bond hearing.

(f) “Continued” means that the hearing was continued by the immigration

judge on a continuance request made by the alien, the alien’s representative, or

counsel for the Government.



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Date: November 4, 2013 STUART F. DELERYActing Assistant Attorney General Civil Division DAVID J. KLINE Director, Office of Immigration LitigationDistrict Court Section /s/ Theodore W. Atkinson THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON Trial Attorney

Attorneys for Respondents



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ATTACHMENT A



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ATTACHMENT B



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I certify that on November 4, 2013, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-5211 Fax: 213-977-5297 Email: [email protected] Jayashri Srikantiah Stanford Law School Immigrants’ Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]

Judy Rabinovitz ACLU Immigrants’ Rights Project 125 Broad Street 18th Floor New York, NY 10004 212-549-2618 Fax: 212-549-2654 Email: [email protected] Cody Jacobs Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-896-6000 Fax: 213-896-6600 Email: [email protected]

/s/ Theodore W. Atkinson

Theodore W. Atkinson United States Department of Justice



13-11-04 Spreadsheet 01 – Accompanying Status Report 01

FILED UNDER SEAL


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STUART F. DELERY Assistant Attorney General Civil Division COLIN KISOR Deputy Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON Trial Attorney Attorneys for Respondents


WESTERN DIVISION

Case No. CV 07-3239-TJH (RNBx) RESPONDENTS’ SECOND STATUS REPORT ON IMPLEMENTATION OF THE AUGUST 6, 2013 FINAL ORDER AND PERMANENT INJUNCTION Hon. Terry J. Hatter, Jr.


Petitioners, vs.


Respondents.

)) ) ) ) ) ) ) ) ) ) ) ) )



ACCOMPANYING SPREADSHEET


Petitioners, and will file under seal with this Court, an Excel spreadsheet containing

information about the bond hearings that have been held under both the preliminary

and permanent injunction. The spreadsheet also contains information on bond

hearings held since Respondents filed their previous status report, and including

information up to January 10, 2014. The spreadsheet also provides updated


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information with respect to aliens previously identified in the first status report

spreadsheet, but for whom information was not available or who have had

developments in their proceedings requiring reporting.

The spreadsheet contains information on 760 bond hearings held between

August 6, 2013 (the date of the permanent injunction) and January 10, 2013. The

spreadsheet provides information required under the permanent injunction, as well as

other information not required by the permanent injunction, but which Respondents

have agreed to provide, including certain information regarding the posting of bond,

release date, the last known address for each alien released on bond, and other

information.

Respondents make the following notes regarding the information in the

spreadsheet:

1. The date of the bond hearing is the date the bond hearing was completed.

In some cases, aliens or counsel for the Government will request a brief continuance

at the initial bond hearing. The date reported is the date the hearing was completed.

2. In instances where it is noted that an appeal has been taken, a “Y”

notation may mean that the alien has reserved appeal, but in some cases an alien may

not take an appeal. In other cases where a “Y” notation is made but there is no appeal

information, an appeal has been filed, but the Board of Immigration Appeals has not

yet issued a decision. Respondents also note that in a certain number of cases,

information on the outcome of the appeal cannot be readily determined without review

of the record of proceedings. Respondents are in the process of reviewing those

records to complete the information. In each case, the appeal information will be

updated in future status reports.

3. In the first spreadsheet, bond outcomes were noted in a number of cases

with the entries “no jurisdiction,” “no action,” or “other.” In November and

December 2013, the Executive Office of Immigration Review (“EOIR”) and the

immigration court staff worked to implement a more detailed reporting system. Under


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that system, immigration judges and court staff are provided with a method for

reporting more detailed information by entering specific codes indicating the outcome

of a bond hearing. These improvements allow Respondents to provide more complete

information in the quarterly spreadsheets.

PETITIONERS’ COMPLIANCE MOTION

AND NEGOTIATIONS BETWEEN THE PARTIES

On December 9, 2013, this Court heard argument on Petitioners’ motion for

compliance. At the conclusion of that hearing, the Court instructed the parties to

negotiate certain issues and ordered the parties to submit a proposed order following

those negotiations.

Although the parties were able to agree on several issues, they were unable to

resolve certain issues concerning (1) information to be contained in the quarterly

spreadsheet accompanying the Respondents’ status reports; and (2) the scope and

meaning of the Court’s comments from the bench regarding a category of aliens the

Court indicated should be included in the class. The parties submitted a proposed

order to this Court on December 23, 2013. That proposed order was submitted to

chambers, but Respondents erred in filing a copy through this Court’s ECF/CM

system. Respondents are contemporaneously filing a notice of filing of that proposed

order.

The parties have also been negotiating a revised notice to be sent to aliens

scheduled for a bond hearing under the permanent injunction. Respondents sent a

draft proposal to Petitioners, who have sent back a counter-proposal. That counter-

proposal is being reviewed by Respondents at this time. Respondents intend to

respond to Petitioners’ counter-proposal by January 31. The parties expect to

complete negotiations shortly thereafter, and raise the matter with the Court if they

cannot agree on a revised notice.


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Date: January 28, 2014 STUART F. DELERYAssistant Attorney General Civil Division COLIN KISOR Deputy Director, Office of Immigration Litigation District Court Section /s/ Theodore W. Atkinson THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON Trial Attorney



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I certify that on January 28, 2014, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-5211 Fax: 213-977-5297 Email: [email protected] Jayashri Srikantiah Stanford Law School Immigrants’ Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]





14-01-28 Spreadsheet 02 -- Accompanying Status Report 02 FILED UNDER SEAL


14-02-07 Spreadsheet 02 -- SUPPLEMENTAL -- Accompanying Status Report 02

FILED UNDER SEAL


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STUART F. DELERY Assistant Attorney General Civil Division COLIN KISOR Deputy Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON Trial Attorney Attorneys for Respondents


WESTERN DIVISION

Case No. CV 07-3239-TJH (RNBx) RESPONDENTS’ SUPPLEMENTAL STATUS REPORT ON IMPLEMENTATION OF THE AUGUST 6, 2013 FINAL ORDER AND PERMANENT INJUNCTION Hon. Terry J. Hatter, Jr.


Petitioners, vs.


Respondents.

)) ) ) ) ) ) ) ) ) ) ) ) )

Respondents submit the following supplemental status report on the

implementation of this Court’s August 6, 2013 Order, Judgment and Permanent

Injunction (the “Order”). This supplemental status report addresses (1) successful

efforts by the parties to negotiate a revised notice for use in connection with the

scheduling of Rodriguez hearings, and (2) to apprise the Court of an issue raised by

Petitioners of a number of notices not sent to class counsel during the preliminary

injunction period and under the permanent injunction, and of steps taken by

Respondents to address the issue and to ensure that hearing notices continue to be sent

to class counsel.


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Agreement Regarding Revised Notice of Hearing


compliance. As part of their motion, Petitioners argued that the notice sent to aliens

who were scheduled for a Rodriguez hearing was insufficient to comply with the

Order. Petitioners argued at the hearing that the notice failed to contain information

which Petitioners contended was required by the Order, including information

concerning the Government’s burden of proof, the right of an alien to present evidence

at the hearing, and the factors the immigration judge must consider in awarding bond.

Respondents argued that the Order required Respondents to notify aliens of the date

and location of the hearing, which Petitioners conceded the notice provided.

Without ruling on the issue, this Court encouraged the parties to attempt

negotiation of a revised notice. The parties submitted a proposed order the Court later

entered setting forth a schedule for negotiations.

The parties have since reached an agreement on language of a revised notice.

Respondents will submit by April 4 a proposed order to Petitioners for review and

approval concerning the use of the notice. Once the parties agree on the proposed

order, the parties will jointly submit the order to the Court for entry.

Issue Regarding Missing Notices to Class Counsel

On February 19, 2014, Petitioners notified counsel for Respondents by e-mail

that they had discovered that they had not received copies of notices sent to aliens or

their immigration proceeding representatives. Specifically, class counsel wrote that

they had discovered “more than 690 instances when [they] did not receive a notice.”

Attached to the e-mail were two spreadsheets purporting to identify the instances

when a hearing was reported by Respondents, but for which a notice was not received

by class counsel. One spreadsheet covered the hearings held under the preliminary

injunction, and the second spreadsheet covered the hearings held under the permanent

injunction.

As a result of the e-mail, Respondents investigated Petitioners’ concern, and


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reported the results of that investigation to counsel for Petitioners. The parties also

discussed the issues by telephone in a “meet and confer” call in advance of a potential

motion by Petitioners.

Respondents’ findings are as follows:

(1) Duplicate Entries – Petitioners reported “more than 690” instances in which

they did not receive a copy of a notice sent to an alien or an alien’s representative.

However, in comparing the spreadsheets Petitioners sent purporting to show each

instance of a hearing reported where no notice copy was received, there were a

number of duplicate entries. After eliminating duplicate entries on Petitioners’

spreadsheets, the number of non-duplicate instances is 530.

(2) Preliminary Injunction Notices – Of the 530 instances reported by Petitioners,

the Executive Office for Immigration Review (“EOIR”) has determined that

approximately 330 hearings were held under the preliminary injunction, and

approximately 200 were held under the permanent injunction. “Approximately” is

used here because some hearings were scheduled under the preliminary injunction, but

may have occurred after the permanent injunction was entered.

With respect to the approximately 320 instances in which class counsel asserts

they did not receive a copy of the notice sent to aliens, there are several explanations

why that may be the case.

• First, the preliminary injunction did not require Respondents to send a copy of

the bond hearing notice to class counsel. Although neither party can recall the

specific date on which they agreed, the parties agreed in October or November

2012 that Respondents would scan and send copies of notices to class counsel

for Petitioners so that Petitioners could attend hearings for monitoring purposes.

Shortly after the Court entered the preliminary injunction on September 12,

2012, but before Respondents voluntarily agreed to provide copies of notices,

the immigration courts in this district began scheduling bond hearings and

sending notices to detainees. Accordingly, for an indeterminate number of


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hearings, no copies of notices were sent to class counsel because there was no

order to do so, and Respondents had not yet offered or agreed to do so.

• Second, an indeterminate number of the bond hearings under the preliminary

injunction were held after Respondents agreed to provide notice, but before

immigration court personnel received instructions or training on scanning and

e-mailing notices to counsel for Respondents.

• Third, some hearings were held without any notice. Specifically, no notice was

sent to an alien in those cases in which the alien requested a bond hearing in

person during a master calendar hearing, or an immigration judge recognized

the alien was entitled to a bond hearing under the preliminary injunction, and

the hearing was held then and there with the consent of the alien and DHS

counsel present in the courtroom. Petitioners have stated their agreement with

Respondents that no written notice is required in those general circumstances.

• Fourth, during at least some portion of the preliminary injunction period, no

notice copies were sent to class counsel if the alien filed a written request for a

Rodriguez hearing. For at least some period, copies of notices were scanned

and sent to counsel for Respondents only when the hearing was automatically

scheduled under the preliminary injunction. Thus, for an indeterminate number

of hearings affirmatively requested by the alien, no notice copy was sent.

Respondents note that this is not the practice under the permanent injunction. If

an alien requests a hearing, copies of notices issued are sent to class counsel.

(3) Permanent Injunction Notices –Approximately 200 bond hearings were held

under the permanent injunction for which Petitioners claim to have received no notice

copy.

Respondents note that a number of copies were not sent due to the inherent

ramping-up time between when the Order issued and when the formalized process for

providing copies of the notice to class counsel could be put into place. Unlike the

preliminary injunction, the permanent injunction required Respondents to provide


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copies of notices to class counsel for hearings scheduled under the Order’s 30-day

window. It took several weeks after the Order was entered for the Order to be

disseminated to the immigration court through agency counsel, for the parties to

decide whether to seek a stay of the order, for the immigration court to establish a

system for providing copies of notice to counsel (a process that was court-ordered and

more formalized than under our preliminary injunction agreement), and for the

immigration court staff to implement the system and train legal assistants on the

process for generating and mailing notices. This ramping-up period was complicated

by the government shutdown, which lasted from October 1, 2013 to October 16, 2013

– during which period neither EOIR staff in the General Counsel’s Office nor OIL

attorneys were permitted to work on any matters, including forwarding notices.

During the ramping-up period, approximately 166 of the post-permanent injunction

hearings of the 200 Petitioners identified were scheduled or held.1

As of October 23, 2013, a system in which notices were mailed by the

immigration courts in this district directly to class counsel was fully implemented.

The remaining 34 instances reported by Petitioners occurred after this date. That

number is significantly lower than the instances in the preceding period, indicating

that the system adopted by the immigration court for mailing notice copies directly to

class counsel is working. With respect to those 34 cases, Respondents have

discovered the following:

• 12 were attorney requests for hearings for which no copies were generated (that

practice has since changed, and a copy of a written notice is sent if an alien

makes a motion for a Rodriguez hearing before one can be automatically

scheduled).

• 10 were held after oral requests for a hearing made by aliens in immigration

1 As noted above, for an indeterminate number of such hearings, those hearings were scheduled during the preliminary injunction period, when notice copies were not required to be sent.


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court, and with the consent of DHS. Petitioners have agreed with Respondents

that in those cases no notice is required.

• 4 were data entry errors, meaning they were non-existent A numbers or A

numbers of aliens who had a bond hearing, but not a Rodriguez bond hearing.

• 1 case was actually under the preliminary injunction and held in 2012.

Respondents erroneously identified the hearing as occurring in 2013 after the

permanent injunction.

• 4 were “no action” cases, meaning that the aliens were removed or granted

relief, and no notice of a hearing was mailed because no hearing was held.

• The remaining cases were cases in which the immigration court actually mailed

the notices to class counsel, and Petitioners were mistaken in reporting those as

instances in which they did not receive notice.

* * *

Respondents understand and are committed to meeting their obligations under

the Order. Accordingly, after Petitioners raised their concerns, Assistant Chief

Immigration Judge Thomas Y.K. Fong sent out a directive to immigration court staff,

reiterating to supervisors the need to train and supervise staff to send copies of notices

to class in each case in which a Rodriguez hearing is scheduled. Staff temporarily

detailed to the immigration court will be trained, as well. Moreover, Supervisory

Legal Assistants will maintain a hard copy of each notice sent on a going forward

basis, and agency counsel and staff will check notice copies against hearing reports to

verify that notice copies are sent in each reported case.

Respondents’ next quarterly status report is due April 28, 2014. Respondents

will apprise the Court regarding any additional developments on this issue at that

time.


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Date: April 4, 2014 STUART F. DELERYAssistant Attorney General Civil Division COLIN KISOR Deputy Director, Office of Immigration Litigation District Court Section /s/ Theodore W. Atkinson THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON Trial Attorney



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I certify that on April 4, 2014, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-5211 Fax: 213-977-5297 Email: [email protected] Jayashri Srikantiah Stanford Law School Immigrants’ Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]





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STUART F. DELERY Assistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON EREZ R. REUVENI Trial Attorneys Attorneys for Respondents


WESTERN DIVISION

Case No. CV 07-3239-TJH (RNBx) RESPONDENTS’ THIRD STATUS REPORT ON IMPLEMENTATION OF THE AUGUST 6, 2013 FINAL ORDER AND PERMANENT INJUNCTION Hon. Terry J. Hatter, Jr.


Petitioners, vs.


Respondents.

)) ) ) ) ) ) ) ) ) ) ) ) )



ACCOMPANYING SPREADSHEETS


Petitioners, and will file under seal with this Court, two Excel spreadsheets. The first

contains information about the bond hearings that have been held under the permanent

injunction. The spreadsheet also contains information on bond hearings held since

Respondents filed their previous status report, and including information up to April

10, 2014. The spreadsheet also provides updated information with respect to aliens


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identified in previous status report spreadsheets or to whom notices were sent, but for

whom information was not available or who have had developments in their

proceedings requiring reporting.

There is one informational note about the first spreadsheet: in some rows, there

are more than one date listed for “Bond Hearing Date.” The first date is the first

scheduled hearing date, and later dates are dates to which the hearings were continued.

The second spreadsheet lists approximately 100 entries. These are the instances

in which Petitioners received a notice, but previous spreadsheets did not list bond

hearing information. Of the approximately 100 entries, approximately 10 entries

contain missing information. This is because the Executive Office for Immigration

Review (“EOIR”) recently suffered a catastrophic failure of its database servers, as

was reported in the media. Accordingly, EOIR could not do a search of the active

database to complete certain entries. In other cases, the A-number list provided by

class counsel contained numbers for which no data was present in the database. This

indicates that the A-number was transposed on class counsel’s list.

OUTSTANDING MOTION FOR COMPLIANCE MATTERS




those negotiations.

One of the issues to be negotiated was a revised notice to be sent to aliens

scheduled for a bond hearing under the permanent injunction. The parties have agreed

on language for the revised notice and are in the process of finalizing a proposed order

for this Court that would authorize its use. Respondents expect that a proposed order

will be filed by May 15.

Another issue the Court asked the parties to address is the representation that

Petitioners sought identifying categories of aliens to whom Respondents are not

providing bond hearings. Respondents had provided an identification of those


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categories of aliens in a letter to class counsel on December 3, 2013. At the December

9 hearing, Petitioners requested that the Court order Respondents to file a declaration

identifying those alien categories, but the Court agreed that Respondents could instead

make a representation in a report to the Court identifying those categories of aliens.

On April 23, 2014, Petitioners’ counsel provided Respondents with proposed

language for inclusion in this report. Respondent client agency counsel are currently

reviewing the language of those representations to ensure accuracy. Unfortunately,

that review could not be completed in time to allow inclusion of the representation in

this report. However, Respondents will make the representation in a supplemental

report by May 15.

Date: April 28, 2014 STUART F. DELERYAssistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4135 [email protected] SARAH S. WILSON EREZ R. REUVENI Trial Attorneys Attorneys for Respondents


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I certify that on April 28, 2014, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-5211 Fax: 213-977-5297 Email: [email protected] Jayashri Srikantiah Stanford Law School Immigrants’ Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]





14-04-28 Spreadsheet 03 -- Accompanying Status Report 03

FILED UNDER SEAL


14-04-28 ACLU Identified Missing SS Entries 4_28_2013

FILED UNDER SEAL


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STUART F. DELERY Assistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 888, Ben Franklin Station Washington, DC 20044 Phone: (202) 616-4266 [email protected] SARAH S. WILSON EREZ R. REUVENI Trial Attorneys Attorneys for Respondents


WESTERN DIVISION

Case No. CV 07-3239-TJH (RNBx) RESPONDENTS’ SUPPLEMENTAL THIRD STATUS REPORT ON IMPLEMENTATION OF THE AUGUST 6, 2013 FINAL ORDER AND PERMANENT INJUNCTION Hon. Terry J. Hatter, Jr.


Petitioners, vs.


Respondents.

)) ) ) ) ) ) ) ) ) ) ) ) )

Respondents submit the following supplemental status report on the

implementation of this Court’s August 6, 2013 Order, Judgment and Permanent

Injunction.

* * *

As noted in Respondents’ Third Status Report filed April 28, 2014, one of the

issues to be negotiated with respect to Petitioners’ Motion for Compliance was a

revised notice to be sent to aliens scheduled for a bond hearing under the permanent

injunction.


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The parties have agreed on language for the revised notice and have finalized a

proposed order for this Court that would authorize its use. Respondents submit that

proposed order with this supplemental report.

* * *

Another issue the Court asked the parties to address with respect to the Motion

for Compliance was the representation that Petitioners sought identifying categories of

aliens to whom Respondents are not providing bond hearings. Respondents had

provided an identification of those categories of aliens in a letter to class counsel on

December 3, 2013. At the December 9 hearing, Petitioners requested that the Court

order Respondents to file a declaration identifying those alien categories, but the

Court agreed that Respondents could instead make a representation in a report to the

Court identifying those categories of aliens.

On April 23, 2014, Petitioners’ counsel provided Respondents with proposed

language for inclusion in this report, which Respondents considered in revising the

representation language below:

Respondents represent that the only aliens detained for six months or longer in

the Central District of California for whom Respondents do not provide a Rodriguez

hearing are those who fall outside the class definition. Such aliens fall within one of

the following categories:

(1) juvenile alien detainees who are detained for six months or longer under

the care of the Department of Health and Human Services;

(2) aliens detained under 8 U.S.C. § 1226a or 8 U.S.C. §§ 1531-1537;

(3) alien detainees who received a Rodriguez hearing under the preliminary

injunction and for whom a bond decision was made by the immigration judge under

the standards set forth in V. Singh;


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(4) alien detainees who received a bond hearing under Casas-Castrillon or

Diouf II and for whom a bond decision was made by the Immigration Judge under the

standards set forth in V. Singh;

(5) alien detainees who have an administratively final order of removal and

no judicial stay of their removal order such that the government has present authority

to remove, including (a) alien detainees who did not file a petition for review within

30 days after the Board of Immigration Appeals (“BIA”) denied their appeal, 1 (b)

alien detainees who filed a petition for review within 30 days of the BIA’s decision,

but no stay of removal is in effect; (c) alien detainees who have a pending petition for

review, but who have had a motion for a stay of removal denied or a stay of removal

lifted; and (d) alien detainees who have had their petition for review denied by the

court of appeals and there is no judicial stay of their removal;

(6) alien detainees who have an administratively final order of removal and

who do not seek administrative review of that order.

Respondents further represent that after diligent consideration, they are aware

of no other exceptions or exclusions to the class definition.

1 The parties disagree whether aliens who have received an administratively final order of removal, but who have not filed a petition for review (but have 30 days to do so) fall within the class definition and cannot be removed. This Court has indicated that they are in the class; but it has not indicated whether they may be removed during this period. That dispute is currently before this Court and a proposed order resolving that dispute has been under consideration by this Court since January 2014. While this matter remains under advisement, Respondents have agreed to provide Rodriguez bond hearings to alien detainees who have an administratively final order of removal, no judicial impediment to removal, but the time to file a petition for review has not lapsed.


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Date: May 15, 2014 STUART F. DELERYAssistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation District Court Section THEODORE W. ATKINSON United States Department of Justice Office of Immigration Litigation P.O. Box 888, Ben Franklin Station Washington, DC 20044 Phone: (202) 216-4266 [email protected] SARAH S. WILSON EREZ R. REUVENI Trial Attorneys Attorneys for Respondents


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I certify that on May 15, 2014, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-5211 Fax: 213-977-5297 Email: [email protected] Jayashri Srikantiah Stanford Law School Immigrants’ Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]





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WESTERN DIVISION

Case No. CV 07-3239-TJH (RNBx) [PROPOSED] ORDER Hon. Terry J. Hatter, Jr. Hearing: none requested


Petitioners, vs.


Respondents.

)) ) ) ) ) ) ) ) ) ) ) ) )

This matter came on Petitioners’ motion for compliance [ECF No. 367] with

this Court’s August 6, 2013 Order, Judgment and Permanent Injunction (the “Order”)

[ECF No. 353]. As part of Petitioners’ motion for compliance, Petitioners challenged

the notice of bond hearing issued by Respondents as not in compliance with the Order.

Oral argument on the motion for compliance was held on December 9, 2013. At the

hearing, this Court encouraged the parties to attempt to negotiate mutually agreed

upon language of a revised notice to comply with the Order. The parties reached

agreement on revised notice language on or about January 17, 2014.

Accordingly, the Court enters the following order proposed by the parties:

Case 2:07-cv-03239-TJH-RNB Document 420-1 Filed 05/15/14 Page 1 of 4 Page ID #:9132


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1. For any bond hearing conducted pursuant to this Court’s August 6, 2013

Order, Judgment and Permanent Injunction [ECF No. 353], Respondents shall provide

written notice to the detainee of his or her upcoming bond hearing containing the

language as follows. The parties may agree to changes in the language without further

order of this Court. This order does not modify or supersede Respondents’

obligations to ensure receipt of the notice by the class member and class counsel under

the Order.

SUPPLEMENT TO NOTICE OF CUSTODY DETERMINATION HEARING UNDER RODRIGUEZ V. ROBBINS As noted in the attached Notice of Hearing, your case has been scheduled/rescheduled for a custody determination hearing before an immigration judge, as ordered by the federal district court in Rodriguez v. Robbins. At your custody determination hearing, the government must prove by clear and convincing evidence that you are a flight risk or danger to the community to keep you detained. To show that you are a flight-risk, the government must show that you are not likely to appear for future immigration hearings or for removal. To show that you are a danger, the government must show that your release would harm property or persons. The Immigration Judge will consider alternatives to detention, such as supervised release and electronic monitoring, in determining whether you can be released. You may present evidence to show why you are not a flight risk or danger to the community and should be released, including documents or witnesses. You may also testify at your custody determination hearing. If you intend to present evidence, you may submit documents and/or a witness list either at your hearing, or by filing them with the immigration court before your hearing. A copy must be sent to the Department of Homeland Security (DHS). If you submit documents at the hearing, you must bring a copy for the DHS attorney. You may be represented at your custody determination hearing at no expense to the government, by an attorney or other individual authorized and qualified to represent persons before an immigration court. If you wish to be represented,



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your attorney or representative should appear with you at your custody determination hearing. If you do not appear with an attorney at your custody determination hearing and wish to be represented, you may ask the judge for more time to find an attorney or representative. If you disagree with the judge’s decision at the end of the hearing, you can appeal the decision by filing Form EOIR-26 with the Board of Immigration Appeals (BIA) within 30 days of the decision.

Dated: ___________________________ Hon. Terry Hatter , Jr. UNITED STATES DISTRICT JUDGE



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STUART F. DELERY Assistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation EREZ REUVENI Trial Attorney United States Department of Justice Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 307-4293 Facsimile: (202) 616-8962 Email: erez.r.reuveni @usdoj.gov SARAH S. WILSON Attorneys for Respondents


WESTERN DIVISION

No. cv 07-3239-TJH (RNBx) RESPONDENTS’ FOURTH STATUS REPORT ON IMPLEMENTATION OF THE AUGUST 6, 2013 FINAL ORDER AND PERMANENT INJUNCTION Hon. Terry J. Hatter, Jr.


Plaintiffs, vs.

TIMOTHY S. ROBBINS, in his capacity as U.S. Immigration and Custom Enforcement, Los Angeles District Field Office Director, et al.,

Defendants.

| | | | | | | | | | | | | | | | | | | |


Court’s August 6, 2013 Order, Judgment, and Permanent Injunction.



Petitioners, and will file under seal with this Court, an Excel spreadsheet that contains


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information about the bond hearings that have been held under the permanent

injunction since Respondents filed their previous status report, and including

information up to July 11, 2014.

There is one informational note about the spreadsheet: in some rows, there is

more than one date listed for “Bond Hearing Date.” The first date is the first scheduled

hearing date, and later dates are dates to which the hearings were continued.

OUTSTANDING MOTION FOR COMPLIANCE MATTERS




those negotiations.

One of the issues to be negotiated was a revised notice to be sent to aliens

scheduled for a bond hearing under the permanent injunction. The parties agreed to

language for the revised notice and submitted a proposed order for this Court that

would authorize its use on May 15. That issue remains pending before the Court.

Another issue the Court asked the parties to address is the representation that

Petitioners sought identifying categories of aliens to whom Respondents are not

providing bond hearings. The Court asked Respondents to make a representation in a

subsequent status report identifying those categories of aliens. Respondents submitted

these representations in a supplemental report dated May 15. Since that filing, the

parties have discussed the representations in the filing further and, save for one

pending disagreement discussed in the following paragraph, are currently in

agreement as to what categories of aliens do not receive bond hearings as part of

implementation of this Court’s permanent injunction. Those categories are articulated

in Respondents’ May 15, 2014 filing.

The parties continue to disagree whether aliens who have received an

administratively final order of removal, but who have not filed a petition for review

(but have 30 days to do so) fall within the class definition and cannot be removed.

2


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This Court has indicated that they are in the class; but it has not indicated whether

they may be removed during this period. That issue remains pending before this Court

and a proposed order resolving that dispute has been under consideration by this Court

since January 2014. While this matter remains under advisement, Respondents have

agreed to provide Rodriguez bond hearings to alien detainees who have an

administratively final order of removal, no judicial impediment to removal, but the

time to file a petition for review has not lapsed.1

Dated: July 28, 2014 STUART F. DELERY

Assistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation District Court Section /s/ Erez Reuveni EREZ REUVENI Trial Attorney United States Department of Justice Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station

Washington, DC 20044 Telephone: (202) 307-4293

Fax: (202) 616-8962 Email: [email protected] SARAH S. WILSON

Trial Attorney

Attorneys for Defendants

1 The parties have discussed whether aliens who are in this general category, but then receive a bond hearing, and are granted bond, may be removed pending the Court’s resolution of this issue. Respondents await suggested language to that effect from Petitioners, and once agreement is reached, Respondents will update the Court.

3


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I certify that on July 28, 2014, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham Judy Rabinovitz ACLU Foundation of Southern ACLU Immigrants’ Rights Project California 125 Broad Street 18th Floor 1616 Beverly Boulevard New York, NY 10004 Los Angeles, CA 90026 212-549-2618 213-977-5211 Fax: 212-549-2654 Fax: 213-977-5297 Email: [email protected] Email: [email protected]

Cody Jacobs Jayashri Srikantiah Sidley Austin LLP Stanford Law School 555 West Fifth Street Suite 4000 Immigrants’ Rights Clinic, Los Angeles, CA 90013-1010 Crown Quadrangle 213-896-6000 559 Nathan Abbott Way Fax: 213-896-6600 Stanford, CA 94305-8610 Email: [email protected] 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]

/s/ Erez Reuveni EREZ REUVENI Trial Attorney United States Department of Justice


14-07-28 Spreadsheet 04 –Accompanying Status Report 04

FILED UNDER SEAL


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STUART F. DELERY Assistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation EREZ REUVENI Trial Attorney United States Department of Justice Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 307-4293 Facsimile: (202) 616-8962 Email: erez.r.reuveni @usdoj.gov SARAH S. WILSON Attorneys for Respondents


WESTERN DIVISION

No. cv 07-3239-TJH (RNBx) RESPONDENTS’ STATUS REPORT CONCERNING COMPLIANCE WITH THE COURT’S AUGUST, 2014 ORDER CONCERNING THE PRODUCTION OF UPDATED SPREADSHEETS Hon. Terry J. Hatter, Jr.


Plaintiffs, vs.

TIMOTHY S. ROBBINS, in his capacity as U.S. Immigration and Custom Enforcement, Los Angeles District Field Office Director, et al.,

Defendants.

| | | | | | | | | | | | | | | | | | | |


Court’s August 6, 2014 Order concerning the production of updated spreadsheets. See

ECF 425 at 2-3.


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Petitioners, and will file under seal with this Court, an Excel spreadsheet that contains

the updated information about the bond hearings Ordered by the Court for all

previously submitted spreadsheets.

There is one informational note about the spreadsheet: in some rows, there is

more than one date listed for “Bond Hearing Date.” In such cases, the first date is the

first scheduled hearing date, and later dates are dates to which the hearings were

continued.

Dated: September 15, 2014 STUART F. DELERY

Assistant Attorney General Civil Division COLIN KISOR Acting Director, Office of Immigration Litigation District Court Section /s/ Erez Reuveni EREZ REUVENI Trial Attorney United States Department of Justice Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station

Washington, DC 20044 Telephone: (202) 307-4293

Fax: (202) 616-8962 Email: [email protected] SARAH S. WILSON

Trial Attorney

Attorneys for Defendants


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I certify that on September 15, 2014, I served a copy of the foregoing through the Court’s CM/ECF system on the following counsel of record: Ahilan T. Arulanantham Judy Rabinovitz ACLU Foundation of Southern ACLU Immigrants’ Rights Project California 125 Broad Street 18th Floor 1616 Beverly Boulevard New York, NY 10004 Los Angeles, CA 90026 212-549-2618 213-977-5211 Fax: 212-549-2654 Fax: 213-977-5297 Email: [email protected] Email: [email protected]

Cody Jacobs Jayashri Srikantiah Sidley Austin LLP Stanford Law School 555 West Fifth Street Suite 4000 Immigrants’ Rights Clinic, Los Angeles, CA 90013-1010 Crown Quadrangle 213-896-6000 559 Nathan Abbott Way Fax: 213-896-6600 Stanford, CA 94305-8610 Email: [email protected] 650-724-2442 Fax: 650-723-4426 Email: [email protected] Sean Commons Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 Fax: 213-896-6600 Email: [email protected]

/s/ Erez Reuveni EREZ REUVENI Trial Attorney United States Department of Justice


14-09-15 Spreadsheet 05 –Accompanying Status Report 05

FILED UNDER SEAL


EXHIBIT B


1

FIGURE 1. Outcome of Bond Hearings1, 2

1 All the data reported herein was drawn from three status reports filed by the government in Rodriguez. The status reports include data on bond hearings conducted from October 2012 to April 2014. 2 Figure 1 summarizes data on bond hearings in which the class member was ordered released on bond (in some amount) or other conditions of release, or denied release on bond. The chart omits bond hearings in which the outcome was reported as “no jurisdiction,” “continued/rescheduled” or “no action – released.”


2

FIGURE 2. Class Members Who Posted Bond3

3 The government status reports do not report posting data for all class members ordered released on bond. Accordingly, the total number of class members in this chart is less than the number reported granted bond in Figure 1.


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FIGURES 3a and 3b. Bond Amounts4

4 Figures 3a and 3b present the distribution of bond amounts ordered for class members. Figure 3b includes the full range of bond amounts from $0 to $2,500,000, whereas Figure 3a is limited to bond amounts between $1,500 and $125,000. Figure 3a omits approximately 18 bond hearings (8 in which the amount of bond set was $0, and 10 in which the amount was greater than $125,000). Because Figure 3a is limited to a narrower range, it presents a more detailed distribution of bond amounts than does Figure 3b, which includes the full range.


4


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FIGURES 4a and 4b. Mean and Median Bond Amounts5

5 Figures 4a and 4b present the mean and median bond amounts for class members corresponding to the figures reported in Figures 3a and 3b. Because Figure 3b includes the full range of bond amounts from $0 to $2,500,000, Figure 4b includes mean and median bond amounts using the whole range. Because Figure 3a is limited to bond amounts between $1,500 and $125,000, Figure 4a reports the mean and median bond amounts for bonds set within those ranges. The mean bond amount reported in Figure 4b is significantly higher than in Figure 4a because of the inclusion of the approximately 10 class members who received bond amounts in excess of $125,000.


6


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FIGURE 5. Alternatives to Detention6

6 “Alternatives to Detention” refers to conditions of release besides bond, such as electronic monitoring.


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FIGURE 6. Appeals Taken7

7 Figure 6 presents data on appeals taken by class members. According to the government’s status reports, the government only produced information on appeals taken by class members. Therefore, this table summarizes no data on appeals taken by the government.


9

Figure 7. Appeals Outcomes8

8 Figure 7 presents the outcomes of appeals taken by class members. The category “Remanded” refers to cases in which the outcomes was reported as “remanded.” The category “IJ Decision Affirmed” includes cases in which the outcome was reported as “dismissed,” “affirm decision,” “summary affirmance,” “sustain,” or “dismiss appeal/affirm IJ decision.” The category “Withdrawn/No Jurisdiction/Moot” includes cases in which the outcome was reported as “withdrawn/appeal withdrawn,” “lacks jurisdiction,” “moot bond,” “pending” or “other.”


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