Case 1:17-cv-11842-PBS Document 4 Filed 09/25/17 Page 1 of 17 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS LIA DEVITRI, EVA GRASJE, SYANE KALOH, JOHN LONDA, MELDY LUMANGKUN, MARTIN LUMINGKEWAS, MEIVE LUMINGKEWAS, TERRY ROMBOT, AGUS SETIAWAN, FREDDY SOMBAH, POPPY SOMBAH, and all other individuals similarly situated, Petitioners/Plaintiffs, Civil Action No. _____ v. CHRIS M. CRONEN Boston Field Office Director for Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement TIMOTHY STEVENS Manchester Sub-Office Director for Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement ELAINE C. DUKE Acting Secretary of the U.S. Department of Homeland Security Respondents/Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND STAY OF REMOVAL I. INTRODUCTION Petitioners/Plaintiffs are Christian Indonesian nationals who have resided in the United States for many years. While they all ultimately became subject to final orders of removal, the United States permitted them to continue to live and work here under orders of supervision through a program called “Operation Indonesia Surrender.” The government recently appears to have discontinued that program without notice, but, rather than allow the program participants the opportunity to reopen their immigration cases to seek the immigration relief that may be available to them now (years after the immigration courts first ruled on their requests to remain 1 4847-9897-9664.2 Case 1:17-cv-11842-PBS Document 4 Filed 09/25/17 Page 2 of 17 in the United States), U.S. Immigration and Customs Enforcement (“ICE”) is ordering them to report to immigration field offices with tickets to Indonesia within 30 days. Accordingly, they, and the class of similarly situated individuals they seek to represent in this representative action, now face imminent removal to Indonesia. Indeed, two Petitioners/Plaintiffs, married couple Freddy and Poppy Sombah, whose circumstances were detailed yesterday on the front page of the Manchester Union Leader, are scheduled for removal this Wednesday, September 27, 2017. See Affidavit of Sydney Pritchett (“Pritchett Aff.”), Ex. A, Shawne K. Wickham, “Somersworth man: ‘DACA saved me, but my parents are facing deportation’,” Manchester Union Leaders (Sept. 24, 2017), available at http://www.unionleader.com/Somersworth-man:-DACA-saved-me,-but-my-parents-are-facing- deportation. The circumstances of the denial of the due process to the Sombahs is further detailed by their immigration counsel William P. Joyce, a former immigration judge, who describes how their treatment does not comport with reasonable timelines or due process, especially for those, like the Sombahs, who have no criminal records, pose no threat to national security, and otherwise have no reason to be removed on a timetable that has effectively foreclosed what would be a meritorious claim for relief. Affidavit of William P. Joyce, Esq. (“Joyce Aff.”) at ¶ 6. If removed to Indonesia under current conditions, Petitioners/Plaintiffs face a significant risk of persecution and torture, conditions which have been heightened since the start of Operation Indonesian Surrender because of the recent increase in the threats posed by the increase in anti-Christian extremism in that country. More importantly, conditions have changed since the final orders of removal were issued to Petitioners/Plaintiffs and the rest of the putative class members. In most cases, it has been over a decade since their removal orders became final. 2 4847-9897-9664.2 Case 1:17-cv-11842-PBS Document 4 Filed 09/25/17 Page 3 of 17 Yet the government has failed to provide Petitioners/Plaintiffs (and the putative class they seek to represent) with a fair opportunity to demonstrate their entitlement to protection from removal in light of the changed circumstances. The government’s haste in seeking to remove them without affording them that opportunity deprives them of due process and violates U.S. law, which prohibits the removal of individuals to countries where they would face a likelihood of persecution or torture. II. BACKGROUND In 2009 and 2010, ICE in New England began a program called “Operation Indonesian Surrender” to induce Christian Indonesian nationals who were residing under a final order of removal to identify themselves to ICE in exchange for the ability to remain in the United States under an Order of Supervision. See Pritchett Aff., Ex. C, Jeanne Shaheen, “Another View – Jeanne Shaheen: Trump should let NH’S Indonesian community stay,” Manchester Union Leader (Sept. 10, 2017), available at http://www.unionleader.com/Another-View-Jeanne- Shaheen-Trump-should-let-NHs-Indonesian-community-stay-0911201. As described by an ICE public affairs official, this was a “humanitarian effort” involving Indonesian churches. See Pritchett Aff., Ex. B, Jennifer Keefe, “ICE Seeks Surrender of Illegal Immigrants,” Foster’s Daily Democrat (Sept. 10, 2010) (“‘The whole purpose is bringing folks out of the shadows and saying listen, we’ll work with you. They’re hiding in fear and we don’t want that - no one wants that.’”), available at http://www.fosters.com/article/20100901/GJNEWS_01/709019921. ICE worked with pastors in the Indonesian Christian churches, such as Rev. Sandra Pontoh of the Maranatha Indonesian United Church of Christ, to help identify “upstanding” members of the community to participate 3 4847-9897-9664.2 Case 1:17-cv-11842-PBS Document 4 Filed 09/25/17 Page 4 of 17 in this program. Affidavit of Rev. Sandra Pontoh (“Pontoh Aff.”) at ¶ 5. Id. Individuals with criminal records were not eligible for the program. Id. at ¶ 6. More than 100 Christian Indonesians in New England voluntarily elected to participate in the program offered by ICE and received Orders of Supervision. Id. Such Orders required the participants, for example, to report to ICE at any interval ICE deemed appropriate, submit to medical or psychiatric exams at ICE request, not travel outside New England without notifying ICE of the dates and places of travel, and submit any “information under oath about nationality, circumstances, habits, associations, and activities” that ICE requested. In 2012, the program was further limited to individuals with U.S. citizen spouses or children and those with health conditions, and approximately 70 individuals remained in the program after that criteria was imposed. Pontoh Aff. ¶ 11. Petitioners/Plaintiffs reasonably believed that in setting out this clear criteria, ICE had reached a settled determined that those with U.S. citizen children or spouses satisfied program requirements and would not need to fear deportation; that approach continued for the next five years, further indicating a settled position by ICE. They relied on these Orders of Supervision, generally abided by their conditions, and continued to be productive and law abiding members of their respective communities, including paying taxes and otherwise behaving much like citizens of this country, all while complying with ICE monitoring requirements. Pontoh Aff. ¶ 7. In June 2017, ICE advised the community that it would begin issuing denials of Applications to Stay Removal and/or Notices of Revocation of Release to Indonesian Christians who were participants in the program. Pontoh Aff. ¶ 12. The change in policy came as a shock to the community. Id. Until then, Indonesians with final orders had been living at large, for years, with few restrictions apart from regular reporting requirements. Law abiding individuals who 4 4847-9897-9664.2 Case 1:17-cv-11842-PBS Document 4 Filed 09/25/17 Page 5 of 17 have been fully compliant with their conditions of supervision suddenly found themselves facing orders to return to ICE within 30 days with tickets back to Indonesia, a country where they will surely face severe persecution, without warning about this change and a lack of an opportunity to seek any relief in the form of motions to reopen. Id. Persecution of Christian minorities in Indonesia has been well documented, as the U.S. Court of Appeals for the First Circuit has recognized, even since the beginning of Operation Indonesian Surrender: Panoto is a Christian from Indonesia, a predominantly Muslim country. According to the IJ’s decision, Panoto testified that she experienced persecution as an Indonesian Christian and attributed the following incidents to her religious identity. On Christmas Eve in 2000, a member of Panoto’s congregation found a black box outside their church. Police officers determined that the item was a bomb and removed it before it could detonate. Panoto testified that local authorities did not investigate the event further. Approximately six months later, in June 2001, Panoto was riding on a ferry boat when it was hijacked by Muslim extremists. Once aboard, the hijackers shouted for the Christian passengers to come forward. Panoto witnessed the militants slit an elderly Christian woman’s throat, killing her. One extremist then yanked Panoto by the hair and slapped her, commanding that she state her faith. Panoto did not reply, and just as he was about to attack her, another hijacker called him away. Panoto v. Holder, 770 F.3d 43, 45 (2014) (granting petition for review and vacating order of removal). Due process requires that the Petitioners/Plaintiffs receive an opportunity to have their claims to protection from this kind of persecution considered in light of current conditions, not the conditions that existed at the time their removal orders were first issued, which in many cases is now more than a decade ago. And substantive U.S. law forbids their removal into probable persecution and torture. A stay is imperative to preserve the status quo and give Petitioners/Plaintiffs an opportunity to present their claims to an appropriate tribunal for a fresh adjudication of the legality of their deportation to Indonesia. To that end, this court may issue a 5 4847-9897-9664.2 Case 1:17-cv-11842-PBS Document 4 Filed 09/25/17 Page 6 of 17 preliminary injunction prior to ruling on class certification.