Velesaca v. Wolf

Background

Jose L. Velesaca and Abraham Carlo Uzategui Navarro brought the case on their own behalf and on behalf of a proposed class of people eligible to be considered for bond or release under 8 U.S.C. § 1226(a) who had been or would be detained without bond by Immigration and Customs Enforcement’s New York Field Office. The proposed class had not been certified when the opinion was issued. The plaintiffs also proposed a subclass of people with disabilities.

The complaint alleged that, since around the middle of 2017, the New York Field Office had used an unwritten “No-Release Policy” that effectively denied bond or release across the board. According to the plaintiffs, this policy prevented officers from making individualized custody decisions based on whether a person posed a danger or was likely to flee. They alleged that earlier changes to ICE’s risk-assessment tool removed its ability to recommend bond or release.

The plaintiffs alleged that the policy caused people to remain detained for weeks or months before receiving a meaningful bond hearing before an immigration judge. They also alleged harms involving family separation, lost income, inadequate medical and mental-health care, difficulty preparing immigration cases, and the danger posed by the COVID-19 pandemic.

Parties’ Positions

The plaintiffs sought a preliminary injunction, which is a temporary court order issued before final judgment. They asked the court to set aside the alleged policy and require individualized custody determinations for the named plaintiffs and proposed class members. They relied on data showing that release rates in the New York Field Office fell sharply after June 2017, including among people classified by the risk-assessment tool as presenting low flight risk and low danger.

The defendants principally argued that the No-Release Policy did not exist. They submitted a declaration stating that ICE made individualized custody determinations and denied release in most cases after considering individual circumstances. The defendants also argued that the plaintiffs had not challenged final agency action, had other avenues for review before immigration judges and the Board of Immigration Appeals, and could not obtain classwide injunctive relief under the Immigration and Nationality Act.

The plaintiffs separately argued that ICE’s practices violated the Rehabilitation Act by failing to account properly for detainees’ disabilities. The court found that the plaintiffs had not provided data showing that ICE disregarded disabilities or identified legal authority requiring ICE to give disability a particular weight in custody decisions.

Court’s Analysis

The court applied the preliminary-injunction factors: likelihood of success on the merits, likely irreparable harm without relief, the balance of hardships, and the public interest. It concluded that the requested relief was a traditional injunction against applying an unlawful policy, rather than a mandatory injunction requiring the government to create a new procedure.

The court interpreted 8 U.S.C. § 1226(a) and its regulations as requiring some individualized custody determination for people subject to discretionary detention. The court noted that the government did not argue that the alleged No-Release Policy would be lawful; instead, it disputed the policy’s existence.

The court found that the plaintiffs were likely to prove the policy existed. The data showed that, before June 6, 2017, approximately 30 percent or more of people arrested by the New York Field Office were released on bond or recognizance, while after that date only about 2 percent were released. Among people identified as low flight risk and low danger, more than 96 percent were detained without bond after June 6, 2017, compared with about 53 percent before that date.

The court rejected the defendants’ explanations for the data, including arguments concerning referrals to supervisors, departures from the risk-assessment tool, criminal histories, and nationwide failure-to-appear trends. The court also rejected the defendants’ denial that the policy existed, stating that ICE could not credibly dispute what its own data strongly showed.

The court concluded that the plaintiffs had shown a likelihood of success on their claims under the Administrative Procedure Act and the principle that agencies must follow their own regulations and procedures. It also found irreparable harm because the deprivation of liberty and the alleged effects of detention could not be adequately repaired later through immigration-judge review. The court determined that the balance of hardships and the public interest favored requiring the government to comply with the law.

The court rejected the defendants’ arguments concerning final agency action and other available remedies. It held that final agency action could be shown through the agency’s conduct and effects, without written proof of the policy, and that later review by an immigration judge or the Board of Immigration Appeals would not adequately remedy the alleged delay before that review.

The court also held that the Immigration and Nationality Act did not prevent the ordered relief because the injunction required ICE to follow the law rather than impose a new legal requirement. However, the court denied separate relief under the Rehabilitation Act at that stage because the record did not show that ICE was disregarding disability or that any statute or regulation required a particular weight to be assigned to disability.

Ruling and Injunction

The court granted the plaintiffs’ motion for injunctive relief. It enjoined Thomas R. Decker, in his official capacity as New York Field Office Director for ICE, and his successors from using or applying practices or policies governing release on recognizance or bond under 8 U.S.C. § 1226(a) that were more stringent or burdensome than those used before June 6, 2017.

The injunction did not apply to a person whose bond or recognizance application had already been heard by an immigration judge. The court also required the defendants to file a report identifying people arrested by or under the authority of the New York Field Office and identifying which of those people had already received an immigration-judge hearing. The court stated that the government later filed the required report and that it would address the government’s separate motion to clarify or amend the injunction in a later order.

The opinion concerns preliminary relief, not a final determination after trial. It states that the court found a likelihood that the plaintiffs would succeed, rather than entering a final judgment on all claims.