Velesaca v. Wolf

Background

The court had previously issued a preliminary injunction concerning Immigration and Customs Enforcement (ICE)’s New York Field Office. The injunction barred ICE officials from using practices or policies for releasing people under 8 U.S.C. § 1226(a) that were more stringent or burdensome than those used before June 6, 2017. It did not apply to a person whose bond or release-on-recognizance application had already been heard by an immigration judge.

The court’s earlier ruling was based in part on ICE statistics. Before June 2017, about 30 percent of detained people were released to the community; after that date, about 2 percent were released. The court found that the statistics showed a change in ICE’s practices and that § 1226(a) required individualized custody decisions after arrest, including consideration of flight risk and danger to the community.

The injunction also required the government to report, as of April 10, 2020, the people detained by ICE’s New York Field Office and which of them had received immigration-judge bond hearings. The government reported that 159 people were detained under § 1226(a), including 119 who had not had bond hearings. The plaintiffs then asked the court to clarify whether the injunction required custody redeterminations for people already detained as of April 10. The government acknowledged that ICE had not made those redeterminations and argued that the injunction did not require it to do so.

The Government’s Motion

The government moved to modify and clarify the injunction. It argued that the order was not specific enough under Federal Rule of Civil Procedure 65(d), exceeded the relief allowed under the Administrative Procedure Act and 8 U.S.C. § 1252(f)(1), and improperly interfered with executive-branch discretion. It also argued that requiring redeterminations for people detained as of April 10 made the injunction a mandatory injunction.

Court’s Analysis

The court held that the injunction was sufficiently specific. Rule 65(d) requires an injunction to state its reasons and terms specifically and to describe the conduct restrained or required in reasonable detail. The court concluded that the injunction’s reference to practices more stringent than those used before June 6, 2017 was the best way to define the unlawful practice because the government had not explained the sharp change in release statistics.

The court also held that the injunction applied to people detained as of April 10, 2020. Its language covered anyone “now or hereafter arrested,” and the court found that this included those individuals. The court stated that it assumed people in the plaintiffs’ class, and people detained later, had received individualized bond determinations and would continue to receive them.

The court rejected the argument that the injunction was improper because it required government action. It explained that the distinction between a prohibitory injunction, which restrains conduct, and a mandatory injunction, which requires action, depends on whether the order changes the status quo. Here, the court treated the period before the change in ICE’s policy as the relevant status quo. It also concluded that the injunction was no broader than necessary to remedy the statutory violation.

Disposition

For the reasons stated during argument and explained in the opinion, Judge Alvin K. Hellerstein denied the defendants’ motion for modification and clarification. The parties were directed to appear for a later telephone status conference concerning the remainder of the litigation.