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EXHIBIT A

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2/18 CURRICULUM VITAE

Allen S. Keller, M.D. Division of General Internal Medicine, Department of Medicine New York University School of Medicine Bellevue/NYU Program for Survivors of Torture 462 First Avenue, CD741 New York, N.Y. 10016 Phone: 212-994-7169 Fax: 212-994-7177 e-mail: [email protected] or [email protected] http://www.survivorsoftorture.org

PERSONAL DATA Born Paterson, New Jersey Citizenship United States Marital Status Married, October 24, 1993 to Suzanne Groisser Children Rachel Rose Keller, June 27, 1997 Jacob Samuel Keller, November 29, 2000

EDUCATION Year Degree Field Institution 1981 B.A., Magna Cum Laude Major: European History University of Minor: Chemistry Pennsylvania, Philadelphia, PA

1988 M.D. Medicine NYU School of Medicine, NY, NY POST-DOCTORAL TRAINING Internship and Residency: 1988-1991 Intern and Resident in Medicine. Primary Care Internal Medicine Residency, NYU-Bellevue Medical Center, NY, NY

1991-1992 Chief Resident. Primary Care Internal Medicine Residency, NYU-Bellevue Medical Center, NY, NY

Additional Post-Doctoral Training: 2000-2001 Bioethics Certificate Course, Montefiore Medical Center/New York University

LICENSURE AND CERTIFICATION 1990 New York State Medical License #180712 1994 American Board of Internal Medicine Certificate #140215 Case 1:17-cv-00721-EAW Document 100 Filed 12/07/18 Page 19 of 371

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ACADEMIC APPOINTMENTS 1991-1992 Teaching Assistant in Medicine, New York University School of Medicine 1992-1994 Assistant Clinical Instructor, New York University School of Medicine 1994-2006 Assistant Professor of Medicine, New York University School of Medicine 2006-present Associate Professor of Medicine, New York University School of Medicine 1996-2005 Visiting Associate Professor, Princeton University 1997-present Director, NYU Center for Health and Human Rights 2000-2015 Director, NYU School of Medicine Undergraduate Bioethics Education 2010-present Adjunct Associate Professor, NYU Gallatin School of Individualized Study

HOSPITAL APPOINTMENTS 1993-present Attending Physician, Department of Medicine, Bellevue Hospital

OTHER PROFESSIONAL POSITIONS 1981-1982 Research Assistant, Environmental Sciences Laboratory, Mount Sinai School of Medicine, NY, NY. Participated in field work/data analysis in national study evaluating the health effects of exposure to asbestos. 1985-1986 Medical Volunteer, The American Refugee Committee, Aranyaprathet, Thailand. Provided medical care/training to Cambodian refugees. 1992-1993 Medical Coordinator, American Refugee Committee, Cambodia 1993-present Member Advisory Board, Physicians for Human Rights 1994-1995 Research Associate, New York State Task Force on Life and the Law, New York State Department of Health, NY, NY. 1998 Member (Congressional Appointee), U.S. Delegation to the Organization for Security and Cooperation in Europe (OSCE) Implementation Mtg on Human Dimension Issues, Warsaw Poland. 2004-2005 Expert (appointed), U.S Commission on International Religious Freedom (USCIRF) Expedited Removal Study (Congressionally Mandated Study on U.S. Asylum Procedures) 2005-present Co-Founder, core faculty, NYC Health and Hospitals Corporation Clinical Ethics Consultation Project (CECP). Developed and implemented standardized ethics consultation process for NYC Public Hospital System. 2011 Medical Expert, Bahrain Independent Commission of Inquiry, Manama, Bahrain 2011-2014 New York City Mayoral Task Force on Human Trafficking. Mayor Bloomberg

AWARDS AND HONORS 1997 Advisory Board Member, Physicians for Human Rights, co-recipient, Nobel Peace Prize for its work on the International Campaign to Ban Landmines 1998 Roger E. Joseph Prize, Hebrew Union College. Awarded to the Bellevue/NYU Program for Survivors of Torture 1999 Humanism in Medicine Award, NYU School of Medicine (Presented by Graduating Class). 1999 Founding Society Master, May Chinn Society for Bioethics and Human Rights, NYU School of Medicine Master Scholars Program 2000 Jim Wright Vulnerable Populations Award, National Assoc. of Public Hospitals 2000-2002 Soros Advocacy Fellow, Medicine as a Profession, Open Society Institute 2 Case 1:17-cv-00721-EAW Document 100 Filed 12/07/18 Page 20 of 371

2/18 2002 Humanism in Medicine Award, NYU School of Medicine (Presented by Graduating Class). 2002 Medical Humanism Award, Dept. of Medicine, NYU School of Medicine 2003 Finalist, Russ Berrie Award for Making a Difference, Russ Berrie Foundation 2003 Barbara Chester Award, Hopi Foundation. 2005 Arthur C. Helton Human Rights Award, American Immigration Lawyers Association (co-recipient for work on USCIRF Expedited Removal Study). 2006 Human Rights Defenders Award, Physicians for Human Rights 2007 Distinguished Alumnus Award, NYU School of Medicine 2010 Excellence in Leadership Award, NYC Health and Hospitals Corporation. )For developing hospital system wide Palliative Care Services.) 2011 Health, Human Rights and Advocacy Award, Hebrew Immigrant Aid Society, Philadelphia, PA 2015 Seafarers International, Setting the Course Award.

MAJOR COMMITTEE ASSIGNMENTS National and Regional: 2000-2015 Member, Executive Committee, National Consortium of Torture Treatment Programs (NCTTP). 2000-2015 Chair, NCTTP Policy Committee 2002-present Member, New York City Health and Hospitals Corporation Committee of Bioethics Chairpersons 2007-2011 Co-Chair, NYC Health and Hospitals Corporation Palliative Care Council 2009-2016 Member, U.S. Dept. of Homeland Security Immigration Customs Enforcement (ICE)- NGO Working Group. Co-Chair, Immigration Detention Health Advisory Group 2009-present Member, NY Coalition Against Torture. (Advocacy for NY State Legislation linked to licensure prohibiting health professionals from participating in prisoner abuse. 2010-2012 Member, Task Force on Preserving Medical Professionalism in National Security Detention Centers (sponsored by Open Society Institute and Columbia University) 2011-2014 Member, Mayor’s Task Force on Human Trafficking, New York City

New York University 2005-2007 Planning Committee, Development in a Master Program in Biomedical and Environmental Ethics

New York University School of Medicine 1999-2000 Physician, Patient and Society Course Development Committee 2000-2007 Steering Committee, NYU School of Medicine Master Scholars Program 2000-2004 Steering Committee, Institute for Urban and Global Health 2002 Search Committee, Division of General Internal Medicine Director, Department of Medicine 2002-2004 Steering Committee, Medical Student International Health Program 2003-2008 Steering Committee, Primary Care and Public Health Scholars Program

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2/18 2005-2007 Co-Advisor, Professional Development Committee. Student run committee to promote the development of professionalism 2006-2010 CTSI Biostatistics, Study Design & Ethics Advisory Working Group

Hospital: 1991-present Member, Bellevue Hospital Biomedical Ethics Committee; Co-Chair, 2000-present 1998-2014 Member, Tisch Hospital Bio-Ethics Committee 2000-present Co-Chair, Bellevue Hospital Biomedical Ethics Committee 2003-2005 Co-Chair, End of Life Care Planning Committee, Bellevue Hospital 2005-present Member, Bellevue Hospital Medical Board

MEMBERSHIPS AND COMMITTEE ASSIGNMENTS IN PROFESSIONAL SOCIETIES 1982-1988 American Medical Student Association 1994-present American College of Physicians; Member, Ethics and Human Rights Committee, 2000-2004 1994- present Society of General Internal Medicine 2002-present American Public Health Association

PRINCIPAL CLINICAL AND HOSPITAL SERVICE RESPONSIBILITIES 1993-present Attending Physician, Medicine, Bellevue Hospital 1995- present Co-founder, Director, Bellevue/NYU Program for Survivors of Torture 2000-present Co-Director, Bioethics Consultation Service, Bellevue Hospital 2005-2008 Co-Founder, Director, Palliative Care Service, Bellevue Hospital

MAJOR ADMINISTRATIVE RESPONSIBILITIES 1995-2000 Associate Director, NYU Medical Center Primary Care Internal Medicine Residency Program 1997-2000 Co-Director, Advisory College Program, NYU School of Medicine 2000-2007 Society Master, May Chinn Society for Bioethics and Human Rights 2008-20011 Director, CTSI Research Ethics Consultation Service, NYU School of Medicine

TEACHING EXPERIENCE Internal Medicine/Primary Care/Doctor-Patient Communications 1991-present Attending Physician, Medicine, Bellevue Hospital, NY, NY. Preceptor, Bellevue Primary Care Clinic. Supervise medical students and residents (both NYU Medical Center Categorical Medicine and Primary Care Medicine Residency Programs) 1995-2000 Small group leader for NYU School of Medicine Physician, Patient and Society course, which includes the medical interview, medical ethics, and preventive medicine. 2001-2010 Faculty Mentor, NYU School of Medicine Master Scholars Program. Co-facilitate monthly small-group discussions for medical students on Humanism and professionalism. Meeting with students individually.

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2/18 Bioethics: 1991-present Organize and participate in medical ethics educational programs for Bellevue Hospital/NYU Medical Center house staff, faculty and hospital staff. Developed bioethics training for residency program in coordination with chairs of NYU Medical Center teaching hospitals (Tisch, Bellevue, Manhattan VA). 2000-2015 Director, Undergraduate Bioethics Curriculum, NYU School of Medicine (2000-2015). Developed integrated, 4-year bioethics curriculum for all medical students; recruited and trained small group leaders. 2000-present Bioethics Consultation, Bellevue Hospital Bioethics Committee. Trained Committee members to provide case consultations; developed and refined methodology for consultations serving educational purpose for clinical teams/hospital staff. 2005-present NYC Health and Hospitals Corporation Clinical Ethics Consultation Project (CECP), co-founder and core faculty member. Developed and implemented standardized ethics consultation process for NYC Public Hospital System. Replication efforts include presentations/trainings at national meetings. 2010-present Global Bioethics. Developed and continue to teach semester long undergraduate/graduate seminar on Global Bioethics, NYU Gallatin School of Individualized Study.

Health and Human Rights 1991- 2014 Mentor, Urban Health Care Program, NYU School of Medicine. Advising medical students working in community clinics caring for vulnerable populations in New York City. 1992-1993 Human Rights Education Project for Health Professionals in Cambodia (Project Founder and Co-director), United Nations Transitional Authority in Cambodia (UNTAC), Phnom Penh Cambodia. Developed and implemented first broad health and human rights training in post-conflict nation including core human rights principles, documentation and advocacy. Trained over 2,000 Cambodian health professionals. Subsequently replicated in several countries around the world. 1993 International Campaign to Ban Land Mines (ICBL). Participated in trainings throughout the U.S. and internationally regarding the medical and social consequences of landmines and advocacy strategies toward a worldwide ban on landmines. (Physicians for Human Rights, ICBL). 1995-present Physician Advocacy. Developed and continue to train medical students, residents and faculty on how to be effective advocates. NYU School of Medicine. 1996-2005 Health and Human Rights in the World Community. Princeton University Council on Science and Technology, Princeton, N.J. Developed and taught one of the first undergraduate, semester long seminars in the U.S. 1998-2015 Faculty Advisor, NYU School of Medicine Student Chapter of Physicians for Human Rights. Responsible for starting PHR chapter at NYU. 2000-2015 Health, Human Rights and Advocacy Seminar, NYU School of Medicine. Developed and taught seminar for medical students, residents and other health professionals in training. 2005-present Health and Human Rights. Undergraduate/Graduate Seminar, NYU Gallatin

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2/18 School of Individualized Study

Interviewing, Evaluating and Caring for Victims of Torture and Human Rights Abuses 1993-present Physicians for Human Rights (PHR); International Rehabilitation Council for Torture Victims (IRCT). Train health professionals throughout the United States and internationally investigating and documenting allegations of torture, mistreatment including physical and psychological health consequences. 1995-present Bellevue/NYU Program for Survivors of Torture, NY, NY. Clinical training to current and future health professionals in evaluating and providing comprehensive interdisciplinary care to refugees who suffered torture, human rights abuses and related trauma. This includes medical students, residents, physicians from all specialties (particularly medicine, pediatrics, psychiatry and emergency medicine); psychology interns/externs, psychologists, therapists; social workers and nurses (both students and practitioners). To date have trained over 500 health professionals, many of whom continue to care for trauma survivors and/or have gone on to become leaders in their fields. 1995-present Human Rights First (formerly the Lawyers Committee for Human Rights). Train network of pro-bono attorneys in effective interview skills with survivors of torture and other human rights abuses. 1997- present U.S. Dept. of Homeland Security Customs and Immigration Services (Formerly Immigration Naturalization Services-INS), Asylum Officer Basic Training Course(AOBTC). Developed and continue to teach module on interviewing victims of torture/trauma to all new Asylum and Refugee Officers. Federal Law Enforcement Training Center, Brunswick, GA.

Conferences/Courses March 1998 “Documenting the Physical and Psychological Consequences of Torture.” Conference organizer, NYU School of Medicine, NY, NY. March 2000 “Refugee Resettlement: Therapeutic Factors and Interventions.” Conference organizer: NYU School of Medicine, NY, NY. May 2003 “Advocacy and the General Internist.” Pre-course, Annual Meeting of the Society for General Internal Medicine, Vancouver, BC. December 2007 “Profiles in Courage: Health and Human Rights in Action.” Conference organizer, NYU School of Medicine, NY, NY. 2002 “Training Forensic Doctors in Mexico.” Participated in developing and implementing a training program for forensic doctors in Mexico in documenting torture, Mexico City, Mexico. 2008 “Training Chilean Supreme Court in Assessing Evidence of Torture.” Santiago, Chile. 2012 “A Stepwise Approach to Conducting Bioethics Consultations.” Pre- course, American Society of Bioethics and Humanities (ASBH). Chicago, Illinois.

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2/18 MAJOR RESEARCH/SCHOLARLY INTERESTS My scholarly work focuses on bioethics and specifically the interrelationship between health and human rights. It is based on the premise that the physical, psychological and social dimensions of health and disease are interdependent. I promote the well-being of vulnerable individuals and populations through interdisciplinary clinical services, innovative educational programs and methodologically rigorous research.

Interdisciplinary Clinical Services Bellevue Hospital, our nation’s oldest public hospital, is my clinical home. In 1995, I cofounded and continue to direct the Bellevue/NYU Program for Survivors of Torture (PSOT) which provides comprehensive medical, mental health social and legal services to refugees who suffered torture and other human rights abuses. PSOT is internationally recognized for excellence in clinical, educational, research and advocacy activities Additionally, I co-founded the Palliative Care Service at Bellevue and as co-chair of the bioethics committee expanded bioethics consultations. Both are being replicated throughout the NYC Public Hospital System.

Innovative Educational Programs Bioethics: I have developed innovative teaching models and published scholarly work on bioethics education, consultations and mediation. This includes proposing standards for bioethics consultations and bioethics chart notes. From 2000-2015 I oversaw undergraduate Bioethics education at NYU School of Medicine. I co-developed the New York City Health and Hospital Corporation (HHC) Clinical Ethics Consultation Project (CECP) which is responsible for expanding ethics consultation to all HHC facilities as well as developing standards for training and credentialing ethics consultants and means for ongoing quality assurance.

Health and Human Rights: In 1992, under the auspices of the United Nations Peace Accord in Cambodia, I founded and co-directed the Cambodian Health and Human Rights Education Project. Through this initiative which was developed and implemented by Cambodian (Khmer) health professionals, 3000 Khmer health professionals in every province received training in identifying and documenting human rights violations and caring for the survivors. From this resulted project developed a still functioning local NGO focusing on prison health. Furthermore, the curriculum continued to be taught at Cambodia’s medical and nursing schools and was also replicated in other post-conflict countries. It also served as the basis for health and human rights courses I developed and continue to teach here in the U.S.

In 1997 I helped to develop a training module for U.S. Dept. of Homeland Security Asylum and Refugee Officers on effective interviewing skills with victims of torture and severe trauma. This continues to be taught to all new officers. Also, I continue to provide training to current and future health professionals, attorneys and human rights advocates both domestically and internationally on effective interviewing skills and documenting human rights abuses.

Health and Human Rights Research My research includes international work examining the medical and social consequences of landmines, the prevalence of human rights abuses and related health consequences among refugee populations. In the U.S. I have studied access to healthcare for prisoners, medical complicity in prisoner abuse, and the health consequences of civil (i.e. non-criminal)

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2/18 immigration detention. This work continues to serve as the basis for evidence-based advocacy efforts. Boards and Community Organizations

1991-1992 Correctional Association of New York. Member of Visiting Committee, Monitoring health conditions in jails in New York City. 1993-1995 Board Member, Cambodian Health and Human Rights Foundation 1995-present Advisory Board, Physicians for Human Rights 2010-present New York Coalition Against Torture 2017-present NYC Sanctuary Coalition

Military Service

None

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BIBLIOGRAPHY (*Indicates papers published with trainees mentored)

Peer Reviewed and Published 1. Keller A, Link R, Bickell N, Charap M, Kalet A, Schwartz M. Diabetic Ketoacidosis in Prisoners Without Access to Insulin. JAMA. 1993; 269: 619-21. 2. Stover E, Keller A, Coby J, Sopheap S. The Medical and Social Consequences of Landmines in Cambodia. JAMA. 1994; 272: 331-36. 3. Keller A, Kim Horn S, Sopheap S, Otterman G. Human Rights Education for Cambodian Health Professionals. Health and Human Rights. 1995; Vol 1 #3: 257-271. 4. Keller A, Saul, J. and Eisenman, D*. Caring for Survivors of Torture in an Urban, Municipal Hospital. J Amb Care Mgmt. 1998; 21 (2): 20-29. 5. Keller A, Eisenman D*, Saul J, Kim G*. Striking Hard: Torture in Tibet. Boston: Physicians for Human Rights; 1997. 6. Keller A, Eisenman D*, Saul J, Kim G*. Torture in Tibet. Torture: Quarterly Journal on Rehabilitation of Torture Victims and Prevention of Torture (Denmark) 1999; Supp. #1: 41-46. 7. Iacopino V, Frank M, Keller A, Fink S, Pallin D, Waldman R, Ford D, Burkhalter H, Ayotte B, Cohen A, Barron R, Leaning J, Keough M. War Crimes in Kosovo. Boston: Physicians for Human Rights; 1999. 8. Eisenman D*. Keller A. Kim G*. Survivors of Torture in a General Medical Setting: How Often Have Patients Been Tortured, and How Often is it Missed? Western J Med. 2000; 172: 301-303. 9. Iacopino V, Frank M, Bauer H, Keller A, Fink S, Ford D, Pallin D, Waldman R. A Population-Based Assessment of Human Rights Abuses Committed Against Ethnic Albanian Refugees from Kosovo. Am J Public Health. 2001; 91(12): 2013-8. 10. Keller A. Caring and Advocating for Torture Victims. Lancet. 2002; 360, Supp 1. s55-56. 11. Iacopino V, Keller A, Oksenberg D. Why Torture Must Not be Sanctioned by the United States: It Undermines Our Humanity and Does not Make Society Safer. Western J Med. 2002; 176 (3): 148-49. 12. Heisler M, Moreno A*, DeMonner S, Keller A, Iacopino V. Assessment of Torture and Ill Treatment of Detainees in Mexico: Attitudes and Experiences of Forensic Physicians. JAMA. 2003; 289:2135-43. 13. Keller A, Ford D, Sachs E*, Rosenfeld B, Meserve C*, Trinh-Shevrin C, Rocklin P, Leviss J, Allden K, Kim G*, Smith H, Wilkinson J, Singer E. From Persecution to Prison: the Health Consequences of Detention for Asylum Seekers. Boston: Physicians for Human Rights; 2003. 14. Keller A, Rosenfeld B, Trinh-Shevrin C, Meserve C*, Sachs E*, Leviss J, Singer E, Smith H, Wilkinson J, Kim G*, Allden K, Ford D. Mental Health of Detained Asylum Seekers. Lancet. 2003; 362: 1721-23. 15. Keller A, Ford D, Sachs E*, Rosenfeld B, Trinh Shevrin C, Meserve C*, Leviss J, Singer E, Smith H, Wilkinson J, Kim G*, Allden K, Rocklin P. The Impact of Detention on the Health of Asylum Seekers. J Amb Care Mgmt. 2003; 26 (4): 383-385. 16. Dodson J*, Keller A. Considerations in Medical Student Care of Indigent Populations. JAMA (Student JAMA). 2004; 291: 121.

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17. Keller A. Human Rights and Advocacy: An Integral Part of Medical Education and Practice. Virtual Mentor; Ethics Journal of the American Medical Association. 2004; 6 (1). Available at http://www.ama-assn.org/ama/pub/category/11827.html 18. Moreno A*, Heisler M, Keller A, Iacopino V. Documentation of Torture and Ill- Treatment in Mexico: A Review of Medical Forensic Investigations, 2000 to 2002. Health And Human Rights. 2004; 7 (1). 19. Keller A, Rasmussen A, Reeves K*, Rosenfeld B. Evaluation of Credible Fear Referral in Expedited Removal at Ports of Entry in the United States. In Report on Asylum Seekers in Expedited Removal. U.S. Commission on International Religious Freedom. Washington, D.C. February 2005. 20. Eisenman D*, Weine S, Green B, de Jong J, Rayburn N, Ventevogel P, Keller A, Agani F. The ISTSS/Rand Guidelines on Mental Health Training of Primary Care Providers for Trauma Exposed Populations in Conflict-Affected Countries. J Traumatic Stress. 2006; 19 (1): 5-17. 21. Keller A, Lhewa, D*, Rosenfeld B, Sachs E*, Aladjem A, Cohen I, Smith H, Porterfield K. Traumatic Experiences and Psychological Distress Among an Urban Refugee Population. J Nervous and Mental Disease. 2006; 194 (3): 188-194. 22. Keller A. Torture in Abu Ghraib. Perspectives in Biology and Medicine. Autumn 2006: 553-69. 23. Kalet AL, Sanger J, Chase J, Keller A, Schwartz M, Fishman M, Garfall, Kital A. Promoting professionalism through an online professional development portfolio: successes, joys, and frustrations. Acad Med. 2007 Nov;82(11). 1065-72. 24. Rasmussen A, Rosenfeld, B, Reeves, K,* Keller, A. The subjective experience of trauma and subsequent PTSD in sample of undocumented immigrants. J Nervous and Mental Disease. 2007; 195 (2) 137-143. 25. Hooberman J*, Rosenfeld B, Lhewa D*, Rasmussen A, Keller A. Classifying the Torture Experiences of Refugees Living in the U.S. J Interpersonal Violence. Jan.2007 (1). 108- 23. 26. Lhewa D*, Banu S*, Rosenfeld B, Keller A. Validation of a Tibetan Translation of the Hopkins Symptom Checklist-25 and the Harvard Trauma Questionnaire. Assessment. 2007; 14 (3). 223-30. 27. Rasmussen A, Smith H, Keller A. Factor structure of PTSD symptoms among West and Central African Refugees. J Traumatic Stress. June 2007; (3). 271-80. 28. Rasmussen A, Rosenfeld B, Reeves K, Keller AS. The effects of torture-related injuries on long-term psychological distress in a Punjabi Sikh sample. J Abnormal Psychol. 2007 Nov; 116(4): 734-40. 29. Keller A, Stewart S, Eppel S. Health and Human Rights Under Assault in Zimbabwe. Lancet. Vol 371, March 29, 2008. 1057-1058. 30. Sachs E,* Rosenfeld B, Lhewa D, Rasmussen A, Keller A. Entering Exile: Trauma, Mental Health and Coping Among Tibetan Refugees Arriving in Dharamsala, India. J Traumatic Stress 2008; 21 (2) 199-208. 31. Keller A, Stewart S, Eppel S. Health and Human Rights Under Assault in Zimbabwe. Lancet. Vol 371, March, 2008. 1057-58

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32. Allen S, Keller A, Reisner S, Iacopino V. Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Revealed in the May 2004 CIA Inspector General’s Report. Boston: Physicians for Human Rights, August 2009. 33. Venters HD, Dasch-Goldberg D, Rasmussen A, Keller AS. Into the Abyss: Mortality and Morbidity among Detained Immigrant. Human Rights Quarterly. 2009; 31 (2) 474-491. 34. Venters HD, Keller AS. The Immigration Detention Health Plan: An Acute Care Model for a Chronic Care Population. Journal of Health Care for the Poor and Underserved. 2009 20:951-957. 35. Dubler NN, Webber MP, Swiderski DM, Keller A et al. Charting the future. Credentialing, privileging, quality, and evaluation in clinical ethics consultation. Hastings Center Rep. 2009 Nov-Dec; 39 (6):23-33. 36. Venters HD, McNeely J, Keller AS. HIV Screening and Care for Immigration Detainees. Health and Human Rights. 2010; 11(2) 91-102. 37. Rates and impact of trauma and current stressors among Darfuri refugees in Eastern Chad. Rasmussen A, Nguyen L, Wilkinson J, Vundla S, Raghavan S, Miller KE, Keller AS. Am J Orthopsychiatry. 2010 Apr;80(2):227-36. 38. Venters HD, Foote M, Keller AS. Medical Advocacy on Behalf of Detained Immigrants. Journal of Immigrant and Minority Health. 2011 Jun;13(3):625-8. 39. Iacopino V, Allen S, Keller A. Bad Science Used to Support Torture and Human Experimentation Science, Vol. 331 7. January 2011. 40. Rasmussen, A, Crager, M., Keatley, E., Keller, A. S., & Rosenfeld, B. (in press). Screening for Torture: A narrative checklist comparing legal definitions in a torture treatment clinic. European Psychologist. 2011; (In Press). 41. Posttraumatic idioms of distress among Darfur refugees: Hozun and Majnun. Rasmussen A, Katoni B, Keller AS, Wilkinson J. Transcult Psychiatry. 2011 Sep;48(4):392-415. 42. Venters H, Keller AS, Diversion of patients with mental illness from court-ordered care to immigration detention. Psychiatr Serv. 2012 Apr;63(4):377-9. 43. Chu T, Keller A, Rasmussen Effects of Post-migration Factors on PTSD Outcomes Among Immigrant Survivors of Political Violence. J. Immigr Minor Health Minor Health. Sept. 14 2012. 44. Granski M, Keller A, Venters H. Death Rates among Detained Immigrants in the United States. Int J Environ Res Public Health. 2015 Nov 12;12(11):14414-9.

45. Long C, Meng G, Keller A et al.US: Deaths in Immigration Detention. New York: Human Rights Watch, July 2016. https://www.hrw.org/news/2016/07/07/us-deaths- immigrationdetention.

46. Long C, Meng G, Keller A et al. Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention. New York: Human Rights Watch, May 2017. https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard- medicalcare-us-immigration-detention

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2/18 47. Keller, A., Joscelyne, A., Granski, M., & Rosenfeld, B. Pre-Migration Trauma Exposure and Mental Health Functioning among Central American Migrants Arriving at the US Border. PLOS ONE, 2017; 12(1), 1-11

Reviews, Books and Book Chapters 1. Keller A, Link N, Bickell N, Charap M, Kalet A, Schwartz, M. Prisoners Access to Medications. JAMA 1993;269: (2507-08) (letter). 2. Keller A, Kim Horn S, eds. Human Rights for Health Professionals in Cambodia. Phnom Penh: United Nations and the American Refugee Committee, 1993. 3. Lipkin M Jr., Putnam S, Lazare A, editors; Keller A, asst. editor. The Medical Interview. New York: Springer-Verlag, 1995. 4. Keller A. “Health and Human Rights for Refugees.” In the American Refugee Committee Training Manual. Minneapolis: American Refugee Committee, 1996. 5. Keller A. “Development of a Human Rights Education Program for Health Professionals in Cambodia.” In The Handbook for Human Rights Education, R Claude, ed. Philadelphia: University of Pennsylvania Press, 1996. 6. Keller A. “Medical Ethics and Human Rights in Clinical Trials.” In Proceedings of the Task Force on Design and Analysis. October, 1998. 7. Keller A. “Prevention of Torture: Statement of Dr. Allen S. Keller.” Reprinted in Report on the 1998 OSCE Implementation Meeting on Human Dimension Issues. Commission on Security and Cooperation in Europe. 105th Congress, 2nd Session. 39-42. 8. Keller A, Groisser S. “Domestic Violence.” In The Bellevue Guide to Out-Patient Medicine. Link N, Tanner M. Editors. London: British Medical Journal Books, 2001. 9. Iacopino V, Allden K, Keller A. Editors. Examining Asylum Seekers: A Health Professional’s Guide to Medical and Psychological Evaluations of Torture. Boston: Physicians for Human Rights, 2001. 10. Keller A. Torture: A Global Update and the Need for Assistance for Victims of Torture. Congressional Human Rights Caucus. Sept. 28, 2004, Washington, D.C. Congressional Record. Available at: http://lantos.house.gov/HoR/CA12/Human+Rights+Caucus/Briefing+Testimonies/092804+T estimony+of+Allen+S.+Keller.htm 11. Keller A. “Detention and Torture of Prisoners.” Testimony at U.S. Senate Staff Briefing on Attorney General Nominee Alberto Gonzales and the Issue of Detention and Torture of Prisoners. January 28, 2005, Washington, D.C. Available at: http://www.phrusa.org/research/torture/testimony_heller-2005-01-28.html 12. Keller A, Gold J. “Survivors of Torture.” In Comprehensive Textbook of Psychiatry. B Sadock, V Sadock, eds. New York: Lippincot Williams and Wilkins. 2005. 13. American College of Physicians (Keller A, contributor), Ethics Manual, fifth edition. Philadelphia: American College of Physicians 2005. 14. Hetfield M, Jastram K, Keller A., Kuck C, Haney C, Scheuren F, Baier P, Fleming C, Hartsough T, Kyle S, Rasmussen A, Reeves K*, Rosenfeld B. Report on Asylum Seekers in Expedited Removal. Washington, D.C.: U.S. Commission on International Religious Freedom, February 2005. 15. Keller A. Implementing the 1998 Torture Victims Relief Act. Testimony to the U.S. House of Representatives Committee on International Relations’ Subcommittee on Africa, Global Human Rights and International Relations. June 23 2005, Washington,

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2/18 D.C. Congressional Record. Available at: http://wwwc.house.gov/international_relations/109/smi062305.pdf 16. Smith H, Keller A, Lhewa D. Editors. Like a Refugee Camp on First Avenue: Insights and Experiences from the Bellevue/NYU Program for Survivors of Torture New York: Jacob and Valeria Langeloth Foundation. 2007. 17. Keller A, Levy N*. Medical Care of Victims of Torture and Refugee Trauma. In Like a Refugee Camp on First Avenue: Insights and Experiences from the Bellevue/NYU Program for Survivors of Torture. New York: Jacob and Valeria Langeloth Foundation. 2007. 18. Keller A, Stewart S. “We Have Degrees in Violence:” A Report on Torture and Human Rights Abuses in Zimbabwe. New York: Open Society Institute. December 2007. 19. Hashemian F, Crosby S, t Iacopino V, Keller A et al. Broken Laws Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact. Boston: Physicians for Human Rights. June 2008. 20. Keller A, Gold J. “Survivors of Torture.” In Comprehensive Textbook of Psychiatry,9th Edition. B Sadock, V Sadock, eds. New York: Lippincot Williams and Wilkins. 2009. 21. Keller A. “Evaluation and Treatment of Survivors of Torture and Refugee Trauma. MedScape. May 13, 2009. http://www.medscape.com/viewarticle/702506 22. Allen S, Keller A, Reisner S, Iacopino, Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Demonstrated in the May 2004 CIA Inspector General’s Report. August, 2009.http://physiciansforhumanrights.org/library/documents/reports/aiding-torture.pdf 23. Allen S, Iacopino V, Keller A, Soldz S. Reisner S, Bradshaw J. Experiments in Torture: Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program. Boston: Physicians for Human Rights. June 2010 http://phrtorturepapers.org/

Newspapers, Magazines 1. Keller A. Treatment by Chance: Some Doctors Raise Ethical Questions About Randomized Studies. Washington Post. June 26, 1985. 2. Keller A. Exercising the Mind. Washington Post. Nov. 18, 1986. 3. Keller A. Reflections on Hippocrates in a Plague Year. Discover Magazine. May, 1988. 4. Keller A. A Hospital's Healing Begins. New York Newsday. Jan. 23, 1989. 5. Keller A. U.S. Senate Votes to Turn AIDS Hysteria into Witch Hunt. Bergen Record. Aug. 8, 1991. 6. Keller A. May Bellevue's Special Role Survive Cuts. The New York Times (Letters to the Editor). May 10, 1995. 7. Keller A, Eisenman D*. Preserve Asylum. The New York Times (Letters to the Editor). April 26,1996. 8. Keller A, Eisenman D*. U.S. Is Creating a New Nightmare For Torture Victims Seeking Asylum. Philadelphia Inquirer (Op-Ed). April 30, 1996, p. A-9. 9. Keller A. Congress Should Drop Summary Exclusion From Immigration Bill. Salt Lake City Tribune (Op-Ed). June 16, 1996. p. A-6. 10. Keller A. Torture is Un-American. The New York Times (Letters to the Editor). November12, 2001. 11. Keller A. Torture is Barbarism. The New York Times (Letters to the Editor). March 12, 2003. 12. Keller A. The Legal Memos About Torture. The New York Times (Letters to the Editor). June

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2/18 13, 2004. 13. Keller A. The Issue is Torture: Voices of Outrage. The New York Times (Lettera to the Editor). October 30, 2007. 14. Keller A. The Torture Veto and America’s Image The New York Times (Letters to the Editor). March 9, 2008. 15. Keller A. Making his list: Presidential pardons and torture. December 27, 2008 www.huffingtonpost.com/allen-keller/making-his-list-president_b_153697.html 16. Keller A. Pictures of Torture: the Fact of Torture. The New York Times (Letters to the Editor) May 15, 2009 17. Keller A. Torture by any other Name. Huffington Post. May 26, 2009. www.huffingtonpost.com/allen-keller/torture-by-any-other-name_b_207876.html 18. Keller A. Torture, Healing and Accountability. Huffington Post. June 26, 2009. www.huffingtonpost.com/allen-keller/torture-healing-and-accou_b_221603.html18 19. Keller A. Now that’s trampling. Huffington post. August 13, 2009. www.huffingtonpost.com/allen-keller/now-thats-trampling_b_258765.html 20. Keller A. Call Health Care What it is: A basic human Right. September 8, 2009. http://www.huffingtonpost.com/allen-keller/call-health-care-what-it_b_278765.html 21. Keller A. Make Sure Health Care Reform Isn’t “Bah, Humbug!” December 28.2009. http://www.huffingtonpost.com/allen-keller/make-sure-health-care-ref_b_402872.html 22. Keller A. If only the Torture Memos were a game show. Feb. 22, 2010 http://www.huffingtonpost.com/allen-keller/if-only-the-torture-memos_b_470995.html 23. Keller A. How to Treat Those Who Aid Torture. The New York Times (Letters to the Editor) March 3, 2010. http://www.nytimes.com/2010/03/04/opinion/l04torture.html?scp=1&sq=allen%20keller& st=Search 24. Keller A, Allen S. How the Bush Administration tortured Medical Ethics The Guardian: December 1, 2010. http://www.guardian.co.uk/commentisfree/cifamerica/2010/dec/01/torture-george-bush 25. Keller A, Zhou Y, Traumatized Detainees The New York Times, (Letters to the Editor): January 16, 2012. http://www.nytimes.com/2012/01/17/opinion/traumatized- detainees.html?_r=3&partner=rssnyt&emc=rss 26. Keller A, Zhou Y. Indefinite Detention: Instrument of Tyranny McClatchy News, Opinion: January 13, 2012. http://www.mcclatchydc.com/2012/01/13/v-print/135794/indefinite- detention-instrument.html 27. Keller A, Monga P. After Torture Cases, a Need for Accountability. The New York Times (Letter to the Editor): Sept. 7, 2012. http://www.nytimes.com/2012/09/08/opinion/after- torture-cases-a-need-for-accountability.html?_r=0

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SELECTED PRESENTATIONS AT UNIVERSITIES, NATIONAL/INTERNATIONAL FORUMS (Partial listing of approximately 200 150 presentations made)

November 1993 Center for the Study of Society and Medicine, Columbia University, New York, NY. "The Development of a Human Rights Program for Health Professionals in Cambodia." (Invited Speaker) January 1994 UNICEF Consultative Meeting on Landmines, Geneva, Switzerland. “The Medical and Social Consequences of Landmines.” (Invited Speaker) April 1994 1994 Annual Meeting of the Society of General Internal Medicine, Washington, D.C. "Human Rights and the General Internist." (Panelist) April 1994 Columbia University School of Public Health, New York, NY. "Public Health and Human Rights in Cambodia." (Invited Speaker) Sept. 1994 First International Conference on Health and Human Rights. Harvard School of Public Health, Boston, MA. "Human Rights Education for Health Professionals," and "Health Impacts of Human Rights Violations in Prison." (Invited Speaker) October 1994 1994 Annual Meeting of the American Public Health Association, Washington, D.C. "Landmines: a Worldwide Public Health Menace." (Panelist) April 1995 New York Academy of Medicine. New York, NY. Conference on Community Health. "The Physician as Human Rights Advocate.” (Invited Speaker) April 1995 Cornell University Medical College. New York, NY. International Health Week. "International Health and Human Rights." (Keynote Speaker) May 1995 New York Academy of Sciences. New York, NY. "The Health Professional: Medical Documentation of Human Rights Abuses and Political Asylum." (Invited Speaker) Sept. 1995 American Association of Bioethics 1995 Annual Meeting, Philadelphia PA. "Medicine, Human Rights, and the Dilemma of Public vs. Private Duty." (Panelist) April 1996 Public Forum/Press Conference with Senator Patrick Leahy on Preservation of America’s Political Asylum System. Russell Senate Office Building, Washington, D.C. (Invited Speaker) May 1996 Johns Hopkins School of Public Health. Baltimore, MD. "Caring For Victims of Torture." (Invited Speaker) October 1997 Testimony before the Subcommittee on International Organizations and Human Rights. U.S. House of Representatives. Washington D.C. “Torture in Tibet.” (Invited Speaker) November 1997 Annual Meeting of International Society of Traumatic Stress Studies, Montreal, Canada. “Conducting a Medical Evaluation for a Torture Survivor Asylum Applicant.” (Panelist) April 1998 National Academy of Sciences 135th Annual Meeting. Washington, D.C. “Caring for Survivors of Torture: Treatment and Asylum in the United States.” (Invited Speaker)

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April 1998 Annual Meeting, Society of General Internal Medicine. Chicago, IL. “Evaluating Survivors of Torture Applying for Political Asylum.” (Panelist) September 1998 Columbia University College of Physicians and Surgeons, Department of Medicine Grand Rounds, New York, NY. “Health, Human Rights, and Advocacy.” (Invited Speaker) October 1998 Annual Meeting, Task Force on Design and Analysis, Newark, NJ. “Medical Ethics and Human Rights in Clinical Trials.” (Invited Speaker) October 1998 Annual Meeting of the Institute of Medicine. National Academy of Sciences, Washington, D.C. “Health and Human Rights Concerns for Victims of Torture.” (Invited Speaker) February 1999 Undergraduate Conference on Bioethics. Princeton University, Princeton, NJ. “Bioethics and Human Rights.” (Invited Speaker) April 1999 Conference on Global Health and Human Rights. University of Iowa School of Medicine, Iowa City, IA. “Health, Human Rights, and Advocacy.” (Keynote Speaker) September 1999 Ethics and Human Rights Committee of the American College of Physicians, Philadelphia, PA. “Human Rights Violations among Kosovar Refugees.” (Invited Speaker) March 2000 Conference on Health, Human Rights, and a Role for Students. Harvard Medical School, Boston, MA. “Impact of War on Health and Human Rights.” (Invited Speaker) May 2000 American College of Physicians Annual Meeting, Philadelphia, PA. “Health and Human Rights.” (Panelist) August 2000 New York University School of Medicine White Coat Ceremony. New York, NY. “Human Rights, Idealism, and Medicine.” (Keynote Speaker) March 2001 Human Rights Education Workshop. Webster University, St. Louis, MO. “Health as a Human Right.” (Invited Speaker) February 2002 Columbia University School of Public Health. New York, NY. “Asylum Seekers in the United States: Heath and Human Rights Concerns.” (Invited Speaker) March 2002 The 3rd Annual Medical Humanities Conference. Royal Free & University College Medical School, London, UK. “Bioethics and Human Rights: From Theory to Practice.” (Invited Speaker) April 2002 Clinical, Community, and Professional Correlates Course. Robert Wood Johnson Medical School, New Brunswick, NJ. “Health, Human Rights, and Advocacy.” (Keynote Speaker) June 2002 NYU Medical Center Primary Care Internal Medicine Graduation Ceremony. New York, NY. “Idealism and Medicine.” (Commencement Speaker) November 2002 130th Annual Meeting of the American Public Health Association, Philadelphia, PA. “Health Concerns of Detained Asylum Seekers.” (Panelist) January 2003 Dartmouth University, Hanover, NH. “Caring for Torture Victims.” (Invited Speaker) February 2003 NYU School of Medicine Ethics Colloquium, New York, NY. “Is Torture Ever Justified?” (Invited Speaker)

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March 2003 Health Care for the Uninsured Week. NYU School of Medicine, New York, NY. “Health Care for the Uninsured as a Moral and Human Rights Issue.” (Invited Speaker) April 2003 Vanderbilt University School of Medicine International Health Week, Nashville, TN. “Health, Human Rights, and Advocacy.” (Keynote Speaker) July 2003 Briefing of Staff of U.S. House of Representatives Committee on International Relations and Committee on Energy/Commerce, Washington, D.C. “Caring for Victims of Torture.” (Invited Speaker) September 2003 Barbara Chester Award Ceremony, International Rehabilitation Council for Torture Victims, Copenhagen, Denmark. “Caring and Advocating for Victims of Torture in the post 9/11 World.” (Honoree/Keynote Speaker) October 2003 John Jay College of Criminal Justice, New York, NY. “Torture after 9/11.” (Invited Speaker) November 2003 Barnard Forum on Migration. Barnard College, New York, NY. “Preserving Asylum: Surviving Torture and Surviving the System.” (Invited Speaker) February 2004 Annual Meeting of the American College of Preventive Medicine. Orlando, FL. “Preventing Torture and its Health Consequences.” (Invited Speaker) March 2004 Trinity College, Hartford, CT. “Health and Human Rights.”(Invited Speaker) April 2004 David E. Rogers Health Policy Colloquium. Cornell University School of Medicine, New York, NY. “Caring and Advocating for Torture Victims.” (Invited Speaker) April 2004 Annual Meeting of the American College of Physicians. New Orleans, LA. “Addressing Violence: The Role of the Internist.” (Panelist and Moderator) April 2004 Annual Meeting of the American College of Physicians. New Orleans, LA. “Ethics: The Year in Review. (Invited Speaker) June 2004 American Association for the Advancement of Science. Washington, D.C. “Torture: Science and the Law.” (Invited Speaker) August 2004 Mount Sinai School of Medicine, Department of Medicine Grand Rounds, New York, NY. “Caring and Advocating for Torture Victims.” (Invited Speaker) September 2004 Fordham University School of Law. New York, NY. Conference: “The Constitutionality of Torture: Human Rights in the Age of Terror.” (Invited Speaker) September 2004 Testimony before the Congressional Human Rights Caucus. Washington, D.C. “Torture: A Global Update and the Need for Assistance for Victims of Torture.” (Invited Speaker) October 2004 SUNY Downstate School of Medicine Public Health Program. Brooklyn, NY. “Torture and Immigrant Health.” (Invited Speaker) January 2005 Testimony at U.S. Senate Staff Briefing on Attorney General Nominee Alberto Gonzales and the Issue of Detention and Torture of Prisoners. Washington, D.C. (Invited Speaker) February 2005 Bicameral (U.S. Senate and House of Representatives) Congressional Staff Briefing of U.S. Commission on International Religious Freedom Report on Asylum Seekers in Expedited Removal, Washington, D.C. “Evaluation of Credible Fear Referral at Ports of Entry in the United States.” (Invited Speaker)

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February 2005 Migration Policy Institute, Washington, D.C. “Expedited Removal and the Rights of Asylum Seekers.” (Invited Speaker) March 2005 Center for International Studies/MacLean Center for Clinical Medical Ethics. University of Chicago, Chicago, IL. “Health, Human Rights, and Advocacy.” (Invited Speaker) April 2005 Briefing with leadership of the Executive Office for Immigration Review, Washington, D.C. “Immigration Courts and Asylum Seekers in Expedited Removal.” (Invited Speaker) April 2005 Briefing with Leadership of the Department of Homeland Security. Washington, D.C. “The Department of Homeland Security and Asylum Seekers in Expedited Removal.” (Invited Speaker) April 2005 Annual Meeting of the American College of Physicians. San Francisco, CA. “Ethics: The Year in Review.” (Invited Speaker) May 2005 Bioethics Certificate Course. Montefiore Medical Center/New York University. New York, NY. “Health Human Rights and Advocacy: A Moral Imperative.” (Invited Speaker) June 2005 Albert Einstein College of Medicine, Division of Dermatology Grand Rounds. Bronx, NY. Caring and Advocating for Torture Victims.” (Invited Speaker for named memorial lecture) June 2005 Testimony to the U.S. House of Representatives Committee on International Relations’ Subcommittee on Africa, Global Human Rights and International Relations. Washington, D.C. “Implementing the 1998 Torture Victims Relief Act.” (Invited Speaker) June 2005 Institute of International Humanitarian Affairs, International Diploma in Humanitarian Assistance Course. Fordham University, New York, NY. “Identifying, Caring, and Advocating for Torture Victims.” (Invited Speaker. Note: I have spoken at this course every year since its inception in 1997.) July 2005 2005 Annual Meeting of the National Medical Association. New York, NY. “Medical Ethics: Death and Dying.” (Invited Speaker) September 2005 Yale New Haven International Congress on Disaster Medicine and Emergency Management. New Haven, CT. “Managing Fear in a Hyper- Vigilant Society” (Invited Speaker) October 2005 International Society for Traumatic Stress Studies 2005 Annual Meeting. Toronto, Canada. “Torture and Persecution in Tibet: A Study of Tibetan Refugees.” (Symposium Moderator) November 2005 New York University Medieval and Renaissance Center and NYU School of Law Center on Law and Security. New York, NY. Conference: “Torture and the Truth.” (Invited speaker) November 2005 Oak Institute for the Study of International Human Rights, Colby College. Colby, ME. Conference: “Torture and Human Rights: The Challenge of Redress and Rehabilitation.” (Invited Speaker) January 2006 University of Chicago School of Medicine, Department of Medicine Grand Rounds, Chicago, IL. “Health, Human Rights, and Advocacy.” (Invited Speaker)

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March 2006 Air Force Regional Meeting of the American College of Physicians, San Antonio Tx. “Caring for Vulnerable Populations.” (Invited Speaker) March 2006 Nassau Nassau Community College, Garden City, N.Y. “Putting an End to Torture.” (Invited Speaker) April 2006 Annual Meeting of the American College of Physicians, Philadelphia, Pennsylvania. “Ethics the Year in Review.” (Invited Speaker) July 2006 Northwestern University School of Medicine, Department of Obstetrics/Gynecology Residency Training Program, Chicago, IL. “Health, Human Rights and Advocacy.” August 2006 Human Rights First 2006 Frankel Lecture Series, New York, NY. “Caring and Advocating for Torture Victims.” September 2006 United States Hearing of the ICJ Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, Washington, D.C. “Torture and the War on Terror.” September 2006 U.S. House of Representatives, Washington, D.C. “Briefing on the Military Commission Act.” (Invited Speaker) March 2007 U.S. Senate, Washington, D.C. “Briefing to staff of the U.S. Senate Intelligence Committee and the U.S. Senate Armed Services Committee on the Health Consequences of Torture.” (Invited Speaker) March 2007 American College of Physicians, New York Downtown State Scientific Meeting: Innovation and Idealism in Internal Medicine. New York, NY. “Health, Human Rights and Advocacy.” (Keynote Plenary) September 2007 U.S. Senate Select Committee on Intelligence, Washington, D.C. “Hearing on U.S. Interrogation Policy and Executive Order 13440.” (Invited Speaker) October 2007 U.S. House of Representatives Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, Washington, D.C. “Hearing on Detention and Removal: Immigration Detainee Medical Care.” (Invited Speaker) November 2007 Open Society Institute, Washington, D.C. Health Consequences of Harsh Interrogation Techniques. (Invited Speaker). December, 2007 New York University School of Medicine, New York, NY. Conference: Profiles in Courage: Health and Human Rights in Action. Advocating Against Torture and Caring for its Survivors. (Conference Organizer and Speaker). December, 2007 Open Society Institute, New York, NY. “Torture and Political Violence in Zimbabwe.” (Invited Speaker). February 2008 Berlin Film Festival, Berlin Germany. Panel participant following the premier of “Standard Operating Procedures.” Errol Morris documentary about Abu Ghraib prison. July 2008 United States Commission on Security and Cooperation in Europe (U.S. Helsinki Commission), Washington D.C. “Briefing on Medical Evidence of Torture by U.S. Personnel. (Invited Speaker). December 2008 Rehabilitation and Research Center for Torture Victims (RCT) Copenhagen, Denmark. Conference: Rehabilitating Torture Survivors. (Invited, keynote speaker).

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March 2009 Ethics Committee, Medical Society of the State of NY , Westbury, NY. “Health Professional Complicity in Torture at Guantanamo and other U.S. Detention Facilities.” (Invited speaker). April, 2009 Office of Military Commissions, Arlington Virginia. “Health consequences of Torture.” (Invited speaker). July 2009 NAACP LDF 30th Annual Capital Punishment Training Conference, Airlie Virginia. “Health Consequences of Torture/Trauma and Interview Considerations.” (Invited speaker). October 2009 Hopi Foundation, Flagstaff, Arizona. Conference: “Re-Making the World of the Trauma Survivor.” (Invited Keynote speaker). November 2009 American Public Health Association, Annual Meeting, Philadelphia, PA. “Medical Concerns for Detained Immigrants.” (Invited Speaker). November 2009 University of Chicago Program in Bioethics, Chicago, Ill. “Torture and the United States of America: Why Accountability Matters. (Invited speaker). July 2010 Peter C. Alderman Foundation, Mental Health in Africa, Nairobi Kenya. “Caring and Advocating for Torture Survivors.” (Invited Speaker). January 2011 Justice Initiative, Open Society Institute, New York, NY. “Interviewing Survivors of Torture and Trauma in a human rights/legal context.” (Invited Speaker) June 2012 University of Rochester, Rochester NY. Conference: “Refugee Health.” Caring for Survivors of Refugee Trauma: An Interdisciplinary and Integrated Approach.) Invited Speaker. September 2012 New York City Dept. of Health, New York, NY. “Aiding Survivors of Torture.” (Invited speaker) November 2016 New York University, College of Arts and Science. “Invoking Comparisons with the Holocaust?” (Invited Speaker) as part of Forum Remembering Elie Wiesel.” March 2017 New York Bar Association. “Immigration Detention: Health and Human Rights Concerns.” (Invited Speaker)

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EXHIBIT B

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all others similarly situated, Case No. 17-cv-721 (EAW) Petitioners, v. FIRST AMENDED PETITION FOR A WRIT OF HABEAS ELAINE DUKE, in her official capacity as CORPUS AND COMPLAINT Acting Secretary of U.S. Department of FOR DECLARATORY AND Homeland Security; THOMAS BROPHY, in his INJUNCTIVE RELIEF official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official CLASS ACTION capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

INTRODUCTION

1. This class action challenges the power of the federal government to deny parole summarily to arriving asylum-seekers and incarcerate them for prolonged periods even though the Government itself has determined they are likely to win the right to remain in the United States. In a case pending before the United States Supreme Court, the

Government has represented—in arguing that immigrant detainees need not be given bond hearings to test the validity of their detention—that asylum-seekers have ready access to release on parole. But that representation cannot be squared with the experience of the petitioners and the proposed class members in this case—asylum-seekers who declared themselves at our nation’s borders, whose claims of persecution or torture were found credible, but who have nevertheless been detained without parole at the Buffalo

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Federal Detention Facility in Batavia as the Government processes their asylum claims over many months and, in some cases, years.

2. Petitioners Barrios Ramos and Abdi were detained for many months from the moment they arrived at the U.S.-Mexico border and sought asylum in the United States.

Mr. Barrios Ramos, a political prisoner who fled Cuba to avoid further detention, and Mr.

Abdi, who fled persecution and torture in Somalia on account of his membership in a minority tribe, each passed an initial screening known as a “credible fear interview,” where the Government found that each man had established a significant possibility of being granted asylum. Despite passing that interview, each was then subject to prolonged detention as his immigration case slowly ground on, during which time his repeated requests for parole were denied without explanation. Mr. Abdi spent over ten months in

ICE custody; Mr. Barrios Ramos, who has been incarcerated for over seven months, has no realistic possibility of release in the near future, as his next immigration court date is only scheduled for the end of November.

3. This prolonged and arbitrary detention of the named petitioners reflects a broader practice at Batavia, where ICE has abandoned its long-standing policy favoring the release of asylum-seekers. Although the Government is still touting that policy to the

Supreme Court, the detention of asylum-seekers without the possibility of release on parole is the new norm at Batavia. So whereas approximately 88% of parole requests made by people who passed a credible fear interview were granted during the first nine months of 2015 (the most recent period for which data are available), only 8% of such requests appear to have been granted from the beginning of 2017 until the filing of this lawsuit on July 28, 2017.

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4. The respondents’ actions violate federal statutes, regulations, directives, and the

United States Constitution and are severely harming those being held at Batavia. Mr.

Barrios Ramos and the proposed class of arriving asylum-seekers detained at Batavia who have not been granted parole seek adjudication or readjudication of their parole requests in accordance with the procedures and criteria contained in the ICE parole directive that the Government has repeatedly claimed to be following. In addition, Mr.

Barrios Ramos and a sub-class of asylum-seekers whose detention exceeds, or will exceed, six months seek a bond hearing before an immigration judge—a form of relief to which they are entitled under a recent ruling from the Second Circuit.

JURISDICTION AND VENUE

5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 2201-02 (declaratory judgment); and 28 U.S.C. § 2241 (habeas corpus).

6. Venue is proper in the Western District of New York under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to these claims occurred in this district.

Venue is also proper under 28 U.S.C. § 2241(d) because all potential class members are incarcerated within this District.

PARTIES

7. Petitioner Johan Barrios Ramos is a forty-year-old Cuban national seeking asylum in the United States. He has now spent more than seven months in ICE custody and is currently incarcerated at Batavia.

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8. Petitioner Hanad Abdi is a twenty-six-year-old Somali national seeking asylum in the United States. He spent more than ten months in ICE custody before he was conditionally released on August 16, 2017, three weeks after this lawsuit was filed.

9. Respondent Elaine Duke is sued in her official capacity as Acting Secretary of the

U.S. Department of Homeland Security, the agency directly responsible for the petitioners’ detention.

10. Respondent Thomas Brophy is sued in his official capacity as Acting Field

Office Director for the Buffalo District of ICE. Mr. Brophy has the authority to adjudicate parole for detainees held at Batavia.

11. Respondent Jeffrey Searls is sued in his official capacity as Acting Administrator at Batavia.

12. Respondent Jefferson B. Sessions is sued in his official capacity as the Attorney

General of the United States. As the head of the Department of Justice, he oversees the operation the Executive Office of Immigration Review, which encompasses the immigration courts and Board of Immigration Appeals. Mr. Sessions shares responsibility for the implementation and enforcement of immigration laws along with Acting Secretary

Duke.

FACTS PERTAINING TO INDIVIDUAL PETITIONERS

A. Johan Barrios Ramos

13. Mr. Barrios Ramos, a native and citizen of Cuba, was born in 1977 in Havana.

Declaration of Johan Barrios Ramos (“Barrios Ramos Decl.”) at ¶¶ 1-2.

14. Mr. Barrios Ramos became involved with the political opposition in Cuba around

2010. Id. ¶ 4.

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15. A few years later, he visited an independent journalist and member of the political opposition who was incarcerated by the Cuban authorities. Id. ¶ 5.

16. As a result of visiting this political dissident, Mr. Barrios Ramos became known to the Cuban government who arrested, interrogated, and incarcerated him on suspicion of engaging in “anti-Cuban” activities for approximately eleven months. Id.

17. During his detention, he was held in solitary confinement for several weeks and was sometimes deprived of food. He was also beaten and abused by the prison guards. Id.

¶ 5.

18. After his release from prison, Mr. Barrios Ramos continued his involvement in political opposition to the Cuban government. Id. ¶ 6.

19. As a result the government continued to monitor him and to send its agents to harass him. Id. ¶ 7.

20. Afraid for his safety, Mr. Barrios Ramos attempted to leave Cuba on two occasions. In both instances, government authorities prevented him from leaving the country. Id.

21. In late 2016, shortly after Fidel Castro died, the police once again came to Mr.

Barrios Ramos’s mother’s house looking for him and accusing him of anti-government activities. He was not home at the time. After this incident, his mother told him that he should not come home. Id. ¶ 8.

22. In December 2016, Mr. Barrios Ramos finally succeeded in fleeing Cuba. He left because he was afraid he would be redetained and tortured. Id. ¶ 8-9.

23. Mr. Barrios Ramos left Cuba on a raft that reached the coast of Mexico. From there, he traveled overland, arriving at the U.S.-Mexico border in Roma, Texas, on

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January 14, 2017. He declared himself at the border post there and requested asylum. Id.

¶¶ 10, 11.

24. He was transferred to Batavia and given a credible fear interview on February 1,

2017. The officer who conducted that interview determined there was a significant possibility that Mr. Barrios Ramos’s claims would be found credible in a full asylum hearing before an immigration judge. The officer also found that there appeared to be no potential bars to asylum. Finally, the officer noted that Mr. Barrios Ramos’s identity had been determined with a reasonable degree of certainty. See Credible Fear Interview of

Johan Barrios Ramos (dated February 1, 2017) at 3-5, Declaration of Desiree Lurf (“Lurf

Decl.”), Ex. A.

25. On the same day that he passed his credible fear interview, Mr. Barrios Ramos was told by a deportation officer that there is no parole at Batavia. He does not recall receiving any written notification or advisal about parole, nor does he believe anyone at

Batavia conducted a parole interview for him. Barrios Ramos Decl. ¶¶ 11-12.

26. Mr. Barrios Ramos retained immigration counsel, Desiree Lurf, who has assisted him in preparing for his asylum hearing in immigration court. Id. ¶ 13.

27. On February 28, 2017, Ms. Lurf submitted a parole request on his behalf. In support of this request, she submitted a copy of his birth certificate, declarations from Mr.

Barrios Ramos’s sister (a lawful permanent resident) and a childhood friend (a U.S. citizen) with whom he would live if released supporting the parole request. Ms. Lurf also submitted five other letters of support from friends attesting to Mr. Barrios Ramos’s identity and good character. Photo identifications were included for affiants. First Parole

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Request for Johan Barrios Ramos with supporting exhibits (dated February 28, 2017),

Lurf Decl. Ex. B.

28. On March 6, 2017, Ms. Lurf supplemented the parole request by submitting a copy of Mr. Barrios Ramos’s passport. Updated Parole Request for Johan Barrios Ramos with supporting exhibits (email dated March 6, 2017), Lurf Decl. Ex. C.

29. On March 7, 2017, Ms. Lurf received a two-sentence letter from Acting Field

Office Director Brophy denying parole. In its entirety the body of the letter states: “This letter is in response to your recent correspondence requesting Parole. After a careful review of the evidence you submitted and the immigration file, your request for Parole is denied.” Ltr. from T. Brophy to D. Lurf (dated March 7, 2017), Lurf Decl. Ex. D.

30. On April 24, 2017, Ms. Lurf submitted a second parole request for Mr. Barrios

Ramos. She provided evidence that Mr. Barrios Ramos’s health was deteriorating in

Batavia. For instance, Mr. Barrios Ramos’s anxiety disorder has been exacerbated because his detention at Batavia constantly reminds him of the physical and psychological torture he suffered while detained in Cuba. Second Parole Request for

Johan Barrios Ramos with supporting exhibits (dated April 24, 2017), Lurf Decl. Ex. E.

31. On May 4, 2017, Ms. Lurf received a two-sentence letter from Acting Field

32. On at least two occasions, Mr. Barrios Ramos asked his deportation officer,

Deportation Officer (“DO”) Ensminger, why his parole requests were denied. DO

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Ensminger indicated that parole was no longer available, saying that it was a matter of luck and that there was a one-in-a-million chance of anyone at Batavia being granted parole. Barrios Ramos Decl. ¶ 15.

33. Mr. Barrios Ramos is suffering in detention. His anxiety disorder, which he developed while incarcerated in Cuba, is exacerbated during his detention in the United

States. Id. ¶ 16.

34. Mr. Barrios Ramos was eagerly awaiting his day in immigration court, which was scheduled for August 15, 2017. Id. ¶ 17. On that date, the hearing began and Mr. Barrios

Ramos began to testify through a Spanish-language interpreter provided by the court.

Lurf Decl. ¶ 10-11.

35. However, the interpreter, who spoke Mexican Spanish, was unable to fully understand Mr. Barrios Ramos’s Cuban accent and could not adequately interpret his testimony. Ms. Lurf was forced to ask the court to adjourn the hearing and resume on another date with a different interpreter. Lurf Decl. ¶ 11.

36. She was subsequently informed that the immigration court was rescheduling Mr.

Barrios Ramos’s asylum hearing for November 29, 2017. Lurf Decl. ¶ 12. At that point, he will have been detained for eleven months.

B. Hanad Abdi

37. Mr. Abdi is a native and citizen of Somalia. He was born in 1991, in Buulo

Mareer, a town about 75 miles south of Mogadishu, Somalia’s capital city. See

Declaration of Petitioner Hanad Abdi (“Abdi Decl.”) ¶¶ 1-3. He and his family belong to a small minority tribe known as the Tunni. Id. ¶ 5.

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38. Mr. Abdi lived in Buulo Mareer with his father, mother, and four younger siblings.

His mother died during childbirth in 2008. Id. ¶¶ 3-4.

39. As the oldest child, Mr. Abdi has had to fill in the void left by his mother’s death to take care of his younger siblings. Id. ¶ 4.

40. For most of Mr. Abdi’s life, Somalia has been a failed state, mired in civil unrest and war. In the absence of a functioning government, tribal conflict, usually motivated by control for land and resources, has raged on.

41. As members of the Tunni, Mr. Abdi’s family has been targeted and harassed for decades by members of a larger, more powerful tribe, the Habar-gidir. Mr. Abdi was taunted and bullied in school because of his tribal affiliation, and he remembers hearing

Habar-gidir men harass his mother when he was a child. Id. ¶ 5.

42. More recently, members of the Habar-gidir wanted the plot of land that Mr.

Abdi’s family has owned and farmed for generations. In 2008, Mr. Abdi’s father lost about half of this land to a man from the Habar-gidir tribe, who targeted the family because they are Tunni. Id. ¶ 6.

43. The man who seized the Abdis’ land died in April 2016. The man’s brother, who was the Chief of Police in the section of Buulo Mareer where Mr. Abdi’s family lived believed that Mr. Abdi’s father had conducted witchcraft that caused his brother’s death.

Id. ¶ 7.

44. As an act of vengeance, this Chief of Police shot and killed Mr. Abdi’s father in

May 2016. Id.

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45. Mr. Abdi was attending English classes at the time his father was killed. He came home to see his aunt weeping, and they went to the family farm to collect his father’s body. As the oldest child, Mr. Abdi was responsible for burying his father. Id. ¶ 8.

46. A week later, Mr. Abdi was confronted at his family farm by plain-clothes policemen employed by the man who murdered his father. Id. ¶ 9.

47. The men captured Mr. Abdi, tied him up, and severely beat him. He believes they would have killed him had he not been able to escape later that day as his captors got into a gunfight with a rival group. Amidst the chaos, Mr. Abdi managed to untie himself and run away. He fled into the bushes in the countryside and hid in a ditch in the ground for several hours. He heard the voices of his captors as they came to the area looking for him.

He was terrified. Id. ¶ 10.

48. Around midnight, when he was sure his captors were gone, Mr. Abdi walked back to his house. There, he met his aunt who told him that his captors had just come to the house looking for Mr. Abdi and beaten her as they demanded she turn him over. Id. ¶ 11.

49. Mr. Abdi was suffering his own physical injuries from earlier in the day. But since the men were still looking for him, he believed he had to leave the area immediately.

Aided by a family friend, he was hidden in the back of a vehicle and taken to Mogadishu.

Id. ¶ 12.

50. Some days later, he began to receive threatening phone calls from the men who had captured him telling him they knew where he was and that they planned to kill him.

Id. ¶ 13.

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51. Mr. Abdi left Somalia on June 10, 2016, shortly after receiving those calls. The same family friend who secured his safe passage to Mogadishu paid smugglers to help him travel overland to Ethiopia and then onwards to Brazil by plane. Id. ¶ 15.

52. From Brazil, Mr. Abdi was passed from smuggler to smuggler and crossed overland through Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras,

Guatemala, and Mexico, finally arriving at the southern border of the United States. Id. ¶

16.

53. Mr. Abdi made the perilous journey to the United States because he believed that he could find safety and refuge in this country. Id. ¶ 17.

54. Mr. Abdi arrived at the U.S.-Mexico border in Brownsville, Texas on October 12,

2016. He declared himself at the border post there, and requested asylum in this country.

Id. ¶¶ 16-17.

55. Mr. Abdi then spent approximately two weeks at a detention center in Texas and was transferred to Batavia on or around October 26, 2016. Id. ¶ 18.

56. Mr. Abdi was given a credible fear interview on November 21, 2016. The officer who conducted the interview determined there was a significant possibility that Mr.

Abdi’s claims would be found credible in a full asylum hearing before an immigration judge. The officer also found that there appeared to be no potential bars to asylum.

Finally, the officer noted that Mr. Abdi’s identity had been determined with a reasonable degree of certainty. See Credible Fear Interview of Hanad Abdi (dated Nov. 23, 2016) at

3-4, Abdi Decl. Ex. A.

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57. On December 8, 2016, Mr. Abdi was provided notice that he would have the opportunity to present his claim for asylum before an immigration judge. See Notice to

Appear (dated Nov. 23, 2016, served Dec. 8, 2016), Abdi Decl. Ex. B.

58. On December 8, 2016, he also received a form entitled “Parole Advisal and

Scheduling Notification.” The advisal informed him that since he had passed his CFI,

ICE would consider releasing him from custody on parole pending the resolution of his immigration case. The form went on to explain that ICE may grant parole if he established (1) his identity, (2) that he would appear for future court dates and enforcement appointments, and (3) that he was neither a security risk nor danger to the community. See Parole Advisal and Scheduling Notification (dated Dec. 8, 2016) at 1-2,

Abdi Decl. Ex. C.

59. Mr. Abdi had a parole interview before his ICE deportation officer, Mitchell

Muehlig, on December 15, 2016. Abdi Decl. ¶ 25.

60. In support of his application for parole, Mr. Abdi provided a copy of his birth certificate and he collected affidavits and supporting documentation from relatives and a family friend residing in the U.S. who verified they knew him personally. Id. ¶ 26.

61. In a letter dated December 19, 2016, Mr. Abdi received notice that his parole had been denied because he had failed to establish his identity to ICE’s satisfaction. The form he received, titled “Notification Declining to Grant Parole,” included checkboxes for various grounds under which ICE may deny parole. In Mr. Abdi’s case, only the “identity” checkboxes were marked. ICE did not check the boxes indicating he was ineligible for parole on the grounds that he was a flight risk or danger to the community, nor did it mark the boxes for “additional exceptional, overriding factors” related to law

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enforcement or national security concerns that would warrant a denial of parole. See

Notification Declining to Grant Parole (dated Dec. 19, 2016) at 1-2, Abdi Decl. Ex. D

(“Dec. 19 Parole Denial”).

62. Mr. Abdi requested that ICE reconsider its decision. Abdi Decl. ¶ 29. In a letter dated January 10, he received another “Notification Declining to Grant Parole” form, also indicating that the reason ICE was denying his parole was because he had not established his identity to ICE’s satisfaction. On this form too, ICE did not find Mr. Abdi to be a flight risk or danger to the community, or to present “additional exceptional, overriding factors” against granting parole. See Notification Declining to Grant Parole (dated Jan. 10,

2017) at 1-2, Abdi Decl. Ex. E (“Jan. 10 Parole Denial”).

63. Both parole denial forms that Mr. Abdi received, dated December 19 and January

10 respectively, indicated that he could request redetermination if he provided additional documents like “government-issued documents such as passports, birth certificates, or identity cards” to establish his identity. The form also informed Mr. Abdi that his identity may be established “through written statements prepared by individuals whom [he] know[s] in the United States and whose identity ICE can verify to its satisfaction.” See

Dec. 19 Parole Denial at 2; Jan. 10 Parole Denial at 2.

64. Mr. Abdi asked his deportation officer, DO Muehlig, why his parole requests were denied. Officer Muehlig told him it was because he had not submitted photo identification—even though ICE’s own parole guidance and parole denial form makes clear there is no requirement that an asylum-seeker provide photo identification. Abdi

Decl. ¶ 31.

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65. Mr. Abdi retained Siana McLean as his immigration lawyer on February 28, 2017.

Abdi Decl. ¶ 32. Ms. McLean has assisted Mr. Abdi in preparing for his asylum hearing in immigration court.

66. Ms. McLean renewed Mr. Abdi’s request for release on parole on April 20.

Declaration of Siana McLean (“McLean Decl.”) at ¶ 4. Ms. McLean submitted a cover letter along with the request and provided documentation directly responsive to ICE’s previous determinations that Mr. Abdi had failed to establish his identity. She submitted a

Somali government-issued photo identification card for Mr. Abdi along with a certified

English translation. She also resubmitted an affidavit from Mr. Abdi’s uncle, a lawful permanent resident, who welcomed Mr. Abdi to live with him, and affidavits from Mr.

Abdi’s aunt and family friend. All three affiants provided copies of their U.S.- or state- issued government photo-identification, and all three individuals stated they knew Mr.

Abdi and his family and could confirm his identity. See Immediate Parole Requested for

Hanad Abdi with supporting exhibits (dated April 20, 2017), McLean Decl. Ex. A.

67. In further support of the parole request, Ms. McLean submitted medical records for Mr. Abdi demonstrating the physical and psychological toll that continued detention was taking on him. Id.

68. On May 4, 2017, Ms. McLean received a two-sentence letter from Acting Field

Office Director Brophy denying parole. The body of the letter states, in its entirety: “This letter is in response to your recent correspondence requesting that your client be released on parole. After a careful review of the evidence you submitted and the Immigration file, your request for your client’s release is denied.” No reasoning was offered, and no

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notification form with checkboxes was provided. Ltr. from T. Brophy to S. McLean

(dated May 4, 2017), McLean Decl. Ex. B.

69. After Mr. Abdi received his third parole denial on May 4, 2017, he asked his deportation officer why his request was rejected again. DO Muehlig said that there was nothing he could do, and the decision to deny parole had been made by his superiors. He told Mr. Abdi that “everything changed” in January and parole has “all stopped” under the new administration. Abdi Decl. ¶ 35-36.

70. While he was detained Mr. Abdi was unable to effectively assist Ms. McLean in preparing for his asylum hearing. To support his asylum claim he must track down documents and witnesses from Somalia including his father’s death certificate, the police report he filed in Mogadishu, and affidavits from his aunt and younger siblings corroborating the family’s persecution. However, he is unaware of his family’s present whereabouts in Somalia, and while detained, he could not reach out from detention to friends outside the United States to determine where they are. Abdi Decl. ¶¶ 40-41;

McLean Decl. ¶ 11.

71. In Ms. McLean’s experience, non-detained clients can actively assist in the preparation of their cases by reaching out to family and friends in their home countries via social media, WhatsApp, and e-mail, achieving far greater results than a lawyer or other outside advocate ever could. They can connect with their networks, explain the need for documents to support their asylum applications, and enlist their friends’ and families’ help in collecting these documents. Detained clients are simply unable to carry out such basic tasks. McLean Decl. ¶ 12.

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72. Mr. Abdi is also suffering from debilitating anxiety and depression resulting from the events that led to his fleeing Somalia, and these conditions are exacerbated by his lengthy detention in the United States. While at Batavia, he had nightmares when he slept and woke up screaming from them. Abdi Decl. ¶ 37.

73. In detention, Mr. Abdi did not have the opportunity to receive adequate counseling or therapy for the trauma he has suffered and his psychological situation deteriorated to the point where he had trouble sleeping and breathing. Abdi Decl. ¶ 38.

74. Mr. Abdi’s anxiety and depression in detention were compounded by the fact that he has been unable to ascertain the whereabouts of his four younger siblings. When Mr.

Abdi fled Buulo Mareer, he was forced to leave them behind. He hopes they ran away before the Habar-gidir came back to his house looking for him. He wants to call neighbors and friends to inquire about them, but he was unable to do so from detention.

He is terrified that the reason he has not heard from his siblings is because they were captured like him or killed like his father. Id. ¶ 39.

75. After this lawsuit was filed, and as a direct result of the lawsuit, ICE paroled Mr.

Abdi on August 16, 2017. His release is conditioned on a forensic analysis of his identity documents, which is not yet complete. The standards used in the analysis and the accuracy of any results are unknown to Mr. Abdi and his counsel. He also remains subject to restraints on his liberty, including around-the-clock GPS monitoring. Mr. Abdi has not yet received a full list of any other conditions that might be imposed upon his continued release. Declaration of Robert Hodgson (“Hodgson Decl.”) ¶ 3.

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BACKGROUND REGARDING PAROLE AND DETENTION PRACTICES

A. Asylum and Parole Practices

76. To enter the United States, non-citizens must present themselves for inspection at a port of entry and establish their admissibility. Persons who cannot demonstrate they are admissible are generally put into a streamlined removal process known as expedited removal, where they do not have the opportunity to present their case before an immigration judge (“IJ”).

77. However, there are two groups of applicants for admission who, despite appearing to be inadmissible, are eligible for full removal proceedings in immigration court. They are (a) asylum-seekers who have been found to have a credible fear of persecution and

(b) persons, including lawful permanent residents (“LPRs”), with valid documents who are nevertheless not “clearly and beyond a doubt” entitled to be admitted.

78. To pass a credible fear interview (“CFI”), a person must demonstrate to the satisfaction of an immigration officer that he or she has a “significant possibility” of being granted asylum.

79. All persons deemed inadmissible are subject to mandatory detention. However, the government may release on parole any individual seeking admission to the U.S., including asylum-seekers in removal proceedings.

80. In 2009, ICE issued a directive aimed at ensuring transparency and consistency across the country in the issuance of parole for arriving asylum-seekers who have passed a CFI. See ICE Policy No. 11002.1: Parole of Arriving Aliens Found to Have a Credible

Fear of Persecution or Torture (Dec. 8, 2009) (“Parole Directive”), Declaration of

Aadhithi Padmanabhan (“Padmanabhan Decl.”), Ex A.

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81. The Parole Directive provides that “when an arriving alien found to have a credible fear establishes to the satisfaction of [ICE] his or her identity and that he or she presents neither a flight risk nor danger to the community, [ICE] should, absent additional factors…parole the alien on the basis that his or her continued detention is not in the public interest.”

B. Government’s Representations that Parole Directive Remains in Effect

82. On February 20, 2017, DHS Secretary Kelly issued a memorandum that addressed, among other things, parole procedures. See Memorandum from Secretary John

Kelly, Implementing the President’s Border Security and Immigration Enforcement

Improvement Policies, Padmanabhan Decl. Ex. B. That memorandum stated that the

Parole Directive “shall remain in full force and effect” pending the Secretary’s “further review and evaluation….” Id. at 9-10.

83. The Government has also represented to the Supreme Court of the United States that the Parole Directive remains in full force and effect. In Jennings v. Rodriguez, a case in which the plaintiffs challenge the government’s policy of denying arriving asylum- seekers a bond hearing before an immigration judge—an alternative mechanism for detainees to seek release—the Government has assured the Supreme Court that ICE continues to apply the Parole Directive in an attempt to argue that asylum-seekers have a robust and navigable means of securing release from detention. Gov. Suppl. Reply Br., at

6 n. 2, Jennings v. Rodriguez, No. 15-1204 (brief filed Feb. 21, 2017 (quoting Secretary

Kelly’s Feb. 20 memo)), Padmanabhan Decl., Ex. C.

84. The Government explicitly describes its parole policy as one that “automatically consider[s] parole for arriving aliens found to have a credible fear, and to release the alien

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if he establishes his identity, demonstrates that he is not a flight risk or danger, and there are no countervailing considerations.” Id. at 6 (emphasis added). The brief goes on to say that the parole “policy calls for far more than ‘checking a box on a form, with no hearing, no record and no appeal’…It provides notice to the alien, an interview, the opportunity to respond and present evidence, a custody determination by an officer who did not conduct the credible-fear screening, supervisory review, and further parole consideration based upon changed circumstances or new evidence.” Id. at 6-7.

85. Indeed, the Government has consistently relied on the fact that arriving asylum- seekers already enjoy “extensive safeguards” that protect them from “arbitrary deprivations of liberty”—in particular, the presumption of release on parole—to argue that any liberty interests this group may have are adequately protected and there is no need for additional process in the form of a bond hearing before an immigration judge.

Gov. Suppl. Br., Jennings v. Rodriguez, No. 15-1204 (brief filed Jan. 31, 2017), at 7,

Padmanabhan Decl., Ex. D; see also id. at 10-11; Gov. Supp. Reply Br. at 6. At oral argument in Jennings, then-Acting Solicitor General Ian Gershengorn told the Justices that “the government does use parole for a lot of these individuals” to demonstrate they

“actually get process.” Excerpt of Transcript of Oral Argument at 68-69, Jennings v.

Rodriguez, No. 15-1204. Padmanabhan Decl., Ex. E.

86. The Supreme Court did not decide the Jennings case in the 2016-17 term. Instead the case has been restored to the calendar for reargument in the next Supreme Court term.

87. Since the representations made by Secretary Kelly and the government in

Jennings, there has been no formal modification or rescission of the Parole Directive.

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C. Apparent Change in Parole Adjudication Practices at Batavia

88. Data obtained via a Freedom of Information request from the American Civil

Liberties Union shows that between January and September 2015, 15 out of 17 requests for parole at Batavia by asylum seekers who had passed a CFI were granted—an 88% parole grant rate. See Padmanabhan Decl. ¶¶ 7-8.

89. There are only a small number of lawyers who regularly represent BFDF detainees. Since FOIA data for 2017 is not available, the petitioners’ undersigned counsel has asked several of these practitioners about their experience with parole in 2017. See Id.

¶¶ 2-6.

90. Based on these conversations, the petitioners’ counsel has confirmed only two parole grants for asylum-seekers who passed a CFI at Batavia in 2017 as of the original filing of this case on July 28, 2017. By contrast, 24 parole requests were denied in that time period—an approximately 8% parole grant rate. Id. ¶ 5.

91. In addition to this drastic reversal in parole adjudication outcomes, other indicators point to an abrupt change of parole practices at Batavia despite the administration’s assurances that the Parole Directive remains in effect.

92. Siana McLean, Mr. Abdi’s immigration lawyer, wrote to the Acting Field Office

Director, Thomas Brophy, on April 26, 2017, to inquire whether the Field Office was still following the Parole Directive. McLean Decl. ¶ 6.

93. In response to her letter, she received a phone call from Deportation Officer Ball, who informed her that parole adjudication practices have changed under the new administration. McLean Decl. ¶ 7.

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94. Desiree Lurf, Mr. Barrios Ramos’s lawyer, spoke with a deportation officer, DO

Ensminger, in early March about the parole policy. DO Ensminger also informed Ms.

Lurf that the parole adjudication practices at Batavia have changed under the new administration. Lurf Decl. ¶ 9.

95. Both Mr. Abdi and Mr. Barrios Ramos were told by their respective deportation officers that parole is no longer available at Batavia.

96. The refusal to follow the Parole Directive at Batavia contradicts the public statements made by the Trump administration that the Parole Directive remains “in full force and effect,” and it cannot be reconciled with the requirements of the Constitution, relevant statutes, and regulations.

CLASS ACTION ALLEGATIONS

97. The case is brought as a class action pursuant to Federal Rules of Civil Procedure

23(a) and 23(b)(2), or in the alternative, as a representative habeas action pursuant to procedures analogous to Rule 23 on behalf of all arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal

Detention Facility and who have not been granted parole. All class members are detained pursuant to the mandatory detention provision of the Immigration and Nationality Act, 8

U.S.C. § 1225(b)(1)(B)(ii).

98. The case also is brought on behalf of a sub-class consisting of those arriving asylum-seekers who are detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been or will be detained for more than six months without a bond hearing before an immigration judge (the “prolonged detention sub- class”).

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99. The proposed class and prolonged detention sub-class are sufficiently numerous so as to make joinder impracticable. Upon information and belief, the class consists of more than 40 members. Given the court calendar at the Batavia Immigration Court, the majority of arriving asylum-seekers remain incarcerated for six months or more as they await adjudication of their asylum claims. Therefore, upon information and belief, the sub-class also consists of more than forty members. Joinder is also impracticable because many in the proposed class and sub-class are pro se, indigent, have limited English proficiency, and/or have a limited understanding of the U.S. judicial system.

100. There are common questions of law and fact affecting class members, including

(a) whether the Government has a policy or practice of detaining arriving asylum-seekers who have passed a credible fear interview without parole at Batavia; (b) whether the

Government has a policy or practice of not following the procedures and criteria of the

2009 Parole Directive at Batavia; (c) whether the Due Process Clause or the Immigration and Nationality Act and its implementing regulations authorize such detention without parole.

101. There are common questions of law and fact affecting prolonged detention sub- class members, including (a) whether the Government has a policy or practice of detaining arriving asylum-seekers who have passed a credible fear interview for longer than six months without providing a hearing to determine whether detention is justified;

(b) whether the Immigration and Nationality Act authorizes this detention policy or practice; and (c) whether this detention policy or practice violates the Due Process Clause.

102. Mr. Barrios Ramos’s claims are typical of those of the class and prolonged detention sub-class with respect to the legality of the Government’s policies and practices

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at issue. The prosecution of individual actions against the respondents would create a risk of inconsistent and varying adjudications, which would result in variable standards of conduct for the respondents.

103. Mr. Barrios Ramos will fairly and adequately protect the interests of the class and sub-class. He is unaware of any conflicts that would preclude fair and adequate representation.

104. Proposed class counsel has extensive experience litigating similar matters.

105. The respondents’ policy or practice of detaining class members without parole or a bond hearing applies to the class and sub-class respectively, making class-wide injunctive and declaratory relief appropriate.

CAUSES OF ACTION

FIRST CLAIM

106. The parole denials of the petitioners and the proposed class violate 8 U.S.C. §

1182(d)(5)(A) and 8 C.F.R. § 212.5.

SECOND CLAIM

107. The parole denials of the petitioners and the proposed class violate the Due

Process Clause of Fifth Amendment.

THIRD CLAIM

108. The prolonged detention of the petitioners and the proposed prolonged detention sub-class without a bond hearing violates 8 U.S.C. § 1225(b) of the Immigration and

Nationality Act.

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FOURTH CLAIM

109. The prolonged detention of the petitioners and the proposed prolonged detention sub-class without a bond hearing violates the Due Process Clause of the United States

Constitution.

PRAYER FOR RELIEF

WHEREFORE the petitioners respectfully request that the Court:

110. Assume jurisdiction over this matter;

111. Order the respondents to release Mr. Abdi and Mr. Barrios Ramos on parole under only those conditions authorized by the parole statute and regulation;

112. Order the respondents to adjudicate or readjudicate parole requests of all class members in conformance with the 2009 Parole Directive;

113. Declare that the respondents may not detain class members in violation of the

2009 Parole Directive;

114. Order the respondents to provide the prolonged detention sub-class members a bond hearing before an immigration judge where the Government bears the burden of justifying further detention by clear and convincing evidence;

115. Declare that the respondents may not detain the prolonged detention sub-class members for six months or more without providing them a bond hearing before an immigration judge where the Government bears the burden of justifying further detention by clear and convincing evidence;

116. Award the named petitioners and other members of the proposed class reasonable attorneys’ fees and costs for this action;

117. Grant any other relief the Court deems just and proper.

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Dated: August 21, 2017 Respectfully Submitted, New York, NY /s/ Aadhithi Padmanabhan AADHITHI PADMANABHAN ROBERT HODGSON CHRISTOPHER DUNN PAIGE AUSTIN* New York Civil Liberties Foundation 125 Broad Street, 19th Floor, New York, NY 10004 Tel: (212) 607-3300 [email protected] [email protected] [email protected] [email protected]

Counsel for Petitioners

MARIKO HIROSE International Refugee Assistance Project 40 Rector Street, 9th Floor, New York, NY 10006 Tel: (646) 459-3044 [email protected]

Of Counsel

* Application for admission to W.D.N.Y. pending

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all others similarly situated,

Petitioners, v. Case No. 17-cv-721 (EAW)

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

NOTICE OF PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION

PLEASE TAKE NOTICE that the petitioners will move this Court on a return date to be determined by the Court for a preliminary injunction ordering the respondents to adjudicate or, where appropriate, readjudicate parole applications for all putative class members in conformance with their legal obligations, including by adhering to all the requirements of ICE’s

2009 Parole Directive. The petitioners further move this Court to order the Government to provide putative class members at Batavia who have been detained for six months or more with bond hearings, at which immigration judges shall order release on bond unless “the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.” Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3562 (U.S. Mar. 25, 2016) (No.15-1205), cross-petition for cert. denied, 136

S. Ct. 2494 (2016).

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In support of this motion, and in compliance with Local Rule 65(a), the petitioners file the First Amended Petition for a Writ of Habeas Corpus and Complaint for Declaratory and

Injunctive Relief (previously docketed at ECF No. 17); the attached Memorandum of Law in

Support of the Motion for a Preliminary Injunction; the Declaration of Paige Austin, with all the exhibits annexed thereto; the Declaration of Johan Michel Barrios Ramos; the Declaration of

Hanad Abdi, with all the exhibits annexed thereto; the Declaration of Abdirashid Ahmed Musa, with all the exhibits annexed thereto; the Declaration of Muktar Muse Mohamed, with all the exhibits annexed thereto; the Declaration of Koffi Sewoul, with all the exhibits annexed thereto; the Declaration of Joseph Milou Baptiste, with all the exhibits annexed thereto; the Declaration of Dieusauveur Flezinord, with all the exhibits annexed thereto; the Declaration of Saikou

Touray, with all the exhibits annexed thereto; the Declaration of Salad Suraw Abdi; the

Declaration of Muhamed Ahmed Hirsi, with all the exhibits annexed thereto; the Declaration of

Ahmed Mohamed Ahmed; the Declaration of Abdirahman Elmi Nor, with all the exhibits annexed thereto; the Declaration of Dayron Hernandez, with all the exhibits annexed thereto; the

Declaration of Michelle Shames, with all the exhibits annexed thereto; the Declaration of Siana

McLean, with all the exhibits annexed thereto; the Declaration of Desiree Lurf, with all the exhibits annexed thereto; the Declaration and Supplemental Declarations of Matthew Borowski with all exhibits annexed thereto; the Declaration of Anne Doebler; an exhibit and witness list;1 and a proposed order granting the injunctive relief sought.

Pursuant to Local Rule 7(a)(1), the petitioners hereby state that they intend to file and serve reply papers.

1 There is currently a pending motion for expedited discovery in this case (ECF No. 31). The petitioners respectfully request the opportunity to supplement their evidentiary submission for this motion with any discovery the Court authorizes with respect to the pending discovery motion. 2

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Dated: September 25, 2017 Respectfully Submitted, New York, NY /s/ Robert Hodgson_____ ROBERT HODGSON AADHITHI PADMANABHAN PAIGE AUSTIN CHRISTOPHER DUNN New York Civil Liberties Foundation 125 Broad Street, 19th Floor, New York, NY 10004 Tel: (212) 607-3300 [email protected] [email protected] [email protected] [email protected]

Counsel for Petitioners

MARIKO HIROSE International Refugee Assistance Project 40 Rector Street, 9th Floor, New York, NY 10006 Tel: (646) 459-3044 [email protected]

Of Counsel

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EXHIBIT 2: DECLARATION OF PAIGE AUSTIN

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all others similarly situated, DECLARATION OF PAIGE AUSTIN IN Petitioners, SUPPORT OF MOTION v. FOR PRELIMINARY ELAINE DUKE, in her official capacity as Acting INJUNCTION Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his Case No. 17-cv-721 (EAW) official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

PAIGE AUSTIN, pursuant to 28 U.S.C. § 1746, declares as the following under penalty of perjury:

1. I am an attorney at the New York Civil Liberties Union Foundation (“NYCLU”). I

represent the petitioners in the above-captioned case, and I submit this declaration in

support of their Motion for Preliminary Injunction.

2. Attached hereto as Exhibit A is a true and correct copy of ICE Policy No. 11002.1:

Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec.

8, 2009).

3. Attached hereto as Exhibit B is a true and correct copy of the Memorandum from

Secretary John Kelly, Implementing the President’s Border Security and Immigration

Enforcement Improvement Policies (Feb. 20, 2017).

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4. Attached hereto as Exhibit C is a true and correct copy of an excerpt from the

Government’s Supplemental Reply Brief to the Supreme Court in Jennings v. Rodriguez,

No. 15-1204, 2017 WL 727754 (filed Feb. 21, 2017).

5. Attached hereto as Exhibit D is a true and correct copy of the Executive Order entitled

Border Security and Immigration Enforcement Improvements and published as Exec.

Order No. 13767, 82 Fed. Reg. 8793 (Jan. 30, 2017).

6. Attached hereto as Exhibit E is a true and correct copy of the order and memorandum in

Galo-Espinal v. Decker, No. 17-cv-3492 (S.D.N.Y. June 30, 2017) (Hellerstein, J.),

appeal docketed, No. 17-2691 (2d Cir. Aug. 28, 2017).

7. Attached hereto as Exhibit F is a true and correct copy of the excerpt from the transcript

of the final hearing in Jacques v. Decker, 17-cv-2040 (S.D.N.Y. Aug. 24, 2017) (Failla,

J.), containing the judge’s oral decision.

8. Attached hereto as Exhibit G is a true and correct copy of the excerpt from the transcript

of the final hearing in Sammy v. Decker, No. 17-cv-2615 (S.D.N.Y. May 25, 2017)

(Engelmayer, J.), appeal docketed, No. 17-2260 (2d Cir. July 21, 2017), containing the

judge’s oral decision.

9. Attached hereto as Exhibit H is a true and correct copy of the order and memorandum in

Francois v. Decker, No. 17-cv-5809 (S.D.N.Y. Aug. 16, 2017) (Engelmayer, J.).

10. Attached hereto as Exhibit I is a true and correct copy of the order and memorandum in

Nord v. Decker, No. 17-cv-3679 (S.D.N.Y. Aug. 23, 2017) (Broderick, J.).

11. Attached hereto as Exhibit J is a true and correct copy of the order and memorandum in

Clerjuste v. Decker, No. 17-cv-4252 (S.D.N.Y. Aug. 12, 2017) (Broderick, J.).

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12. Attached hereto as Exhibit K is the order in Celestin v. Decker, No. 17-cv-2419

(S.D.N.Y. Apr. 17, 2017) (Abrams, J.), appeal docketed, No. 17-1895 (2d Cir. June 15,

2017).

13. Attached hereto as Exhibit L is a true and correct copy of the excerpt of the transcript of

the June 14, 2017 hearing in Celestin v. Decker, No. 17-cv-2419 (S.D.N.Y. 2017)

(Abrams, J.), appeal docketed, No. 17-1895 (2d Cir. June 15, 2017), containing the

judge’s oral decision on the petitioner’s order to show cause on a preliminary injunction.

14. As part of the investigation for this case, my colleagues Aadhithi Padmanabhan, Robert

Hodgson, and I spoke with immigration attorneys who frequently represent detainees

held at the Buffalo Federal Detention. To our knowledge, there are only a small number

of attorneys who regularly represent detainees at Batavia. NYCLU staff have spoken with

seven of them: Siana McLean, Desiree Lurf, Anne Doebler, Matthew Borowski, Ryan

Witmer, Robert Graziano, and Stephen Tills.

15. These attorneys identified a total of twenty-five parole requests made between January 1,

2017, and July 28, 2017, on behalf of individuals at Batavia who had passed a credible

fear interview. Of those twenty-five parole requests during that period, only two were

granted.

16. Following the filing of the original petition in this case on July 28, 2017, my colleagues

Robert Hodgson and Aadhithi Padmanabhan engaged in negotiations with counsel for the

respondents that led to the conditional release of named petitioner Mr. Hanad Abdi on

parole on August 16, 2017. During those negotiations, counsel for the Government

explained that, if Mr. Abdi were able to provide confirmation that an original version of

his student identification card was en route to ICE via an express delivery service, he

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would be released pending a “forensic examination” of that card and of his original birth

certificate. The standards to be used in this forensic analysis, and the accuracy of any

results, are not known to counsel.

17. Pursuant to this agreement, Mr. Abdi was released, with an ankle monitor, on August 16,

2017. At his first check-in with the ICE Field Office in Minneapolis, on Wednesday,

August 23, 2017, he was informed that his parole had been revoked. However, he

remains out of custody.

18. The second named petitioner in this case, Mr. Johan Barrios Ramos, has also been

conditionally released from custody since the filing of the amended petition naming him

as a petitioner. In August, Mr. Barrios Ramos’s immigration attorney, Desiree Lurf, was

informed for the first time by his deportation officer that she should provide Mr. Barrios

Ramos’s original passport, of which she had previously submitted a copy. Immediately

upon learning this, Ms. Lurf arranged for Mr. Barrios Ramos’s family to send his

passport to his deportation officer by overnight mail. She also renewed his request for

parole. Mr. Barrios Ramos was conditionally released from custody on September 14,

2017.

19. On June 19, 2017, NYCLU received a spreadsheet from Michael Tan, an attorney with

the Immigrant Rights Project of the American Civil Liberties Union, which included

parole data for the Buffalo Field Office. Mr. Tan received this data in response to a

request made under the Freedom of Information Act (“FOIA”) seeking statistical reports

and analyses that ICE is required to collect and maintain under its 2009 Parole Directive,

detailing the number of parole adjudications, the results of those adjudications, and the

basis for granting or denying parole.

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20. The dataset includes information on parole adjudications made by the Buffalo Field

Office for the first nine months of 2015. During that period, the Buffalo Field Office

granted fifteen parole requests for persons who had passed a credible fear interview. The

Buffalo Field Office denied two parole requests for persons who had passed a credible

fear interview. This represents a parole grant rate of approximately 88%.

Dated: September 25, 2017 Respectfully submitted,

__/s/ Paige Austin______PAIGE AUSTIN New York Civil Liberties Foundation 125 Broad Street, 19th Floor New York, NY 10004 Tel: (212) 607-3300 [email protected]

Counsel for Petitioners

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EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-3 Filed Filed 12/07/18 09/25/17 Page Page 142 8 of of 127 371

U.S. IMMlGRATION AND CUSTOMS ENFORCE MENT Parole of Arriving Aliens Found to Have a Cre dible Fear of Pers ecution or Tor t ure

DISTRIBUTION: ICE DIRECTI VE NO.: 11002.1 ISSUE DATE: December 8, 2009 EF FECTIVE DATE: Ja nuary 4, 201 0 SU PERSEDES: Sec section 3. FEA NUMBER: 601 -05

I. PURPOSE. The purpose of this ICE policy directi ve is to ensure transparent, consistent, and considered JCE pa role determinations fo r arri ving ali ens seeking asy lum in the United States. T his directive prov ides guidance to Detention and Removal Operations (ORO) Field Offi ce personnel fo r exercising their discretion to consider the parole of arri ving aliens processed under the expedited remoYal provisions of section 235 of the Immigration and Nationality Act (INA) who have been found to have a ··credibl e fear" of persecution or torture by U.S. Citizenship and Immigration Services (USC IS) or an imm igration judge of the Executi ve Of'li cc for Imm igration Review. This directi ve establishes a quali ty assurance process that includes record-keeping requirement s to ensure acco untability and compliance with rhc procedures set forth herein.

1.1. Thi s directive docs not appl y to aliens in ORO custody under INA § 236. T his di rective applies only to arri ving ali ens who have been found by USC IS or an immigration judge to have a credible fear of persecution or torture.

2. AUTI IORITIES/REFERENCES.

2.1. INA §§ 208, 212(d)(5), 235(b). and 24 1(b)(J) : 8 U.S.C. §§ 11 58. 11 82(d)(5), 1225(b), and 123 1 (b)(3); 8 C. f .R. §§ 1.1(q ), 208.30(e)-(f). 2 12.5 and 23 5.3.

2.2. Department of Homeland Security Delegation Number 7030.2, '·Delegation of Authority to the Assistant Secretary for the Bureau of Immigrati on and Custom Enfo rcement" (Nov. 13. 2004).

?_ . .)... . ICE Delegations of Auth ority to the Directors. Detenti on and Removal and Investigati ons and to Field Office Directors. Special Agents in Charge and Certain Other Offi cers of the Bureau of Imm igration and Customs En rorcement, No. 000 I (.June 6. 2003). .., .), SU PERSEDED POLICIES AND GU IDANCE. The foll owing ICE di recti ve is hereby superseded:

3.1. ICE Policy Directi ve lo. 7-1 .0. ··Paro le of Arri ving Aliens round to Have a ·cred ible Fear· of Persec ution or Torture" ( ov. 6. 2007). CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-3 Filed Filed 12/07/18 09/25/17 Page Page 143 9 of of 127 371

4. BACKGROUND.

4.1. ArTiving aliens processed under the expedited r emoval provisions of INA §235(b) may pursue asylum and related forms of protection from removal if they successfully demonstrate to USCIS or an immigration judge a credible f ear of persecution or torture.

4.2. Arriving a liens who establi sh a credible fear of persecution or torture are to be detained fo r further consideration of the application for asylum. INA § 235(b) (I )(B)(i i). Such aliens, however, may be paroled on a case-by-case basis for " urgent humanitarian reasons" or "significant public benefit," provided the aliens present neither a security tisk nor a risk of absconding. 8 C.F .R. § 212 .5(b); see also 8 C . P.R. § 235.3(c) (providing that aliens re ferred for INA§ 240 removal proceedings, including those w ho have a credible fear of persecution or torture, may be parol ed under§ 212.5(b) standards).

4.3. The applicable regulations describe five categories of aliens w ho may meet the parole standards based on a case-by-case determination, provided they do not present a flight risk or security risk: (I) aliens who have serious medical conditions, where continued detention would not be appropriate; (2) women who have been medically certi.fied as pregnant; (3) certa in juveniles; (4) aliens who wi ll be witnesses in proceedings being, or to be, conducted by j udicial, administrative, or legis lative bodies in the United States; and (5) aliens wh ose continued detention is not in the public interest. See 8 C.F.R. § 2 12.5(b). But compare 8 C.F.R. § 235.3(b)(4)(ii) (stating that aniving aliens who have not been determined to have a credible fear w ill not be paroled unless parole is n ecessary in li ght of a " medical emer gency or is necessary for a legitimate law e nforcement objective").

4.4. While the first four of these categories are l argely self-exp lanatory, the term "public interest" is open to considerable interpretation. This directive explains how the tem1 is to be interpreted by DRO w hen it decides whether to pa role a!Tiving ali ens detennined to have a credible fear. The directive also mandates uniform recordkeeping and review requirements for such decisions. Parole remains an inherently discretionary determination entrusted to the agency; this directive serves to guide the exercise of that discretion.

5. DEFINIT IONS:

5.1. Arriving Alien. For purposes of this directi ve, "aniving alien" has the same definition as provided for in 8 C.F.R. § 1. 1(q) and 1001.1 (q).

5.2. Cr·edible Fear. For purposes of this directive, with r espect to an alien processed uncle!' the INA§ 235(b) "expedited removal" provisions, "credible fear" means a finding by USCIS or an immigration judge that, taking into account the cre dibility o f the s tatements made by the alien in su pport of the alien's cla im and such other facts

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as are known to the interviewing USC IS offi cer or immigration judge, there is a significant possibility th ai alien could estab li sh eli gibility for asylum under INA § 208, withholding of remo val under lNA § 241(b )(3), or protection from remova l under the Convention Against Torture.

5.3. Parole. For purposes of thi s directive, ''parole" is an adm inistrative meas ure used by TCE to temporarily authorize the release from immigration detention of an inadmissible tmiving ali en found to have a credible fear of persecution or torture, without lawfully admitting the al ien. Parole does not constitute a lawful admission or a determination of ad mi ssibility, see INA §§ 212(d)(5)(A), 101(a)(13)( B), and reasonable conditions may be imposed on the parole, see 8 C.F.R. § 212.5(d). By statute, parole may be used, in the discretion ofiCE and under such conditions as ICE may prescribe, only for urgent humanitarian reasons or for significant public benefit. As interpreted by regulation, "urgent human itarian reasons" and "significant public benefit " include the fi ve categori es set forth in 8 C.F.R. § 212.5(b) and li sted in paragraph 4.3 ofthis directive, including the general category of"aliens whose continued detention is not in the public interest."

6. POLICY.

6.1. As soon as practicable following a credible fea r detem1ination by USC IS fo r an arriving ali en detained by ORO, DRO sha ll provide the ali en with the attached Parole Advisa/ and Scheduling Notification. This form informs the ali en that he or she will be interviewed for potential parole from DRO custody and noli fi es the alien of the date of the schedul ed interview and the dead line for submitting any documentary material suppotiing hi s or her eligibility for parole. The contents of the notification shall be explained to such ali ens in a language they understand. In dete1111ining whether deta ined atTiving ali ens found to have a credible fear should be paroled from custody, DRO shall proceed in accordance with the term s ofthis directive.

6.2. Each alien's eligibility for parole should be considered and analyzed on its own merits and based on the facts of the indi vid ual alien's case. However, when an arri ving ali en found to have a credible fear establishes to the satisfaction ofDRO hi s or her identity and that he or she presents neither a flight risk nor danger to the community, DRO should, absent additional factors (as described in paragraph 8.3 of this directive), parole the alien on the basis that l1i s or her continued detention is not in the public interest. DRO Field Offi ces shall uniformly documen t their parole decision-making processes using the attached Record of Determination/Parole Determination Worksheet.

6.3. Consi stent with the tenns of thi s directive, DRO shall main tain nati onal and local statistics. on paro le determinations and have a quality assurance process in place to monitor parole decision-making, as provided for in sections 7 and 8 of this directive.

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6.4. In conducting parole dete1minations for arriving aliens in custody after they are found to have a credible fear of persecution or torture, DRO shall follow the procedures set rorth in section 8 of this directive.

6.5. DRO shall provide every alien subject to this directive with wrillen notification of the parole decision, including a brief explanation of the reasons for any decision to deny parole. When DRO denies parole under this directive, it should also advise the alien that he or she may request redetermination of this decision based upon changed circumstances or additional evidence relevant to the alien's identity, security risk, or risk of absconding. DRO shall ensure reasonable access to translation or interpreter services if noli fication is provided to the alien in a language other than his or her native language and the alien cannot communicate effectively in that language.

6.6. Written notifications of parole decisions shall be provided to al iens subject to thi s directive and, if represented, their representative within seven days of the date an alien is initially interviewed for parole or the date the alien requests a parole redetem1ination, absent reasonable justification for delay in providing such notification.

6.7. A decision to grant or deny parole sha ll be prepared by a DKO officer assigned such duties within his or her respective DRO Field Office. The decision shall pass through at least one level of supervisory review, and concurrence must be finally approved by the Field Office Director (FOD), Deputy FOD (DFOD), or Assistant FOD (AFOD), where authorized by the FOD.

7. RESPONSIBILITIES.

7.1. The DRO Director is responsible for the overall management of the parole decision- making process for arrivi ng aliens in DRO custody fo ll owing determinations that they have a credi ble fear of persecution or torture.

7.2. The DRO Ass istant Director for Operations is responsible for:

1) Ensuring considered, consistent DRO parole decision-making and recordkeeping nationwide in cases of arriving aliens found to have a credible fear;

2) Overseeing monthly tracking of parole statistics by all DRO Field Offices for such cases; and

3) Overseeing an effective national qua lity assurance program that monitors the Field Offices to ensure compliance with this directive.

7.3. DRO Field Offi ce Directors arc responsible for:

1) Implementing this policy and quality assurance processes;

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2) Maintaining a log of parole adjudications for credibl e fear cases within their respective geographic areas of responsibility, including copies of the Record of Determination/Parole Determination Worksheet;

3) Providing monthly statistical reports on parole decisions for arriving aliens found to have a credible fear;

4) Making the fina l decision to gran t or deny parole for atTiving al iens found to have a credible fear within their respective areas of responsibility or, alternatively, delegating such responsibility to their DFODs or AFODs (i n which case, FODs nevertheless retai n overall responsibility for th ei r office's compliance with this directive rega rd less of delegating signatory responsibi li ty to DFODs or AFODs); and

5) Ensuring that ORO field personnel within their respective areas of responsib il ity who will be assigned to make parole determinations are familiar with this directive and corresponding legal authorities.

7.4. DRO Deputy Field Office Directors are responsible for reviewing, and forwarding for their respective FODs' approval, parole decisions prepared by their subordinates in the cases of arriving aliens found to have a credible fear of persecution or torture. Alternatively, DFODs delegated responsibility under paragraph 7.3 of this directive are responsible for dischargi ng fina l decision-making authori ty over parole detenninations in such cases within their respective areas of responsi bility.

7.5. Assistant Field Office Directors are responsible for reviewing, and forwarding for their respective DFODs' or FODs' approval, parole decisions prepared by their subordinates in the cases of arriving aliens found to have a credible fear of persecution or torture. Alternatively, AFODs delegated responsibility under paragraph 7.3 of this directive are responsi ble for discharging final decision-making authority over parole detem1 inations in such cases within thei r respective areas of responsibility.

7.6. As applicable, ORO fi eld perso nn el so assigned by their loca l chains-of-conunand are responsible for providing detained arriving aliens fou nd to have a credible fear with the attached Parole Advisal and Scheduling Notification and for fully and accurately completing the attached Record ofDetermination /Parole Determination Worksheet in accordance with this directive and conesponding legal authorities.

8. PROCEDURES.

8. 1. As soon as practicable following a findin g that an aniving alien has a credible fear, the DRO Field Office with custody of the al ien shall provide the attached Parole Advisal and Scheduling Notification to the alien and explain the contents of the notification to the alien in a language he or she understands, through an interpreter if

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necessary. The Field Office will complete the relevant portions of the notification, indicating the time when the alien will receive an initial intervi ew on his or her eli gibility for parole and the date by whi ch any documentary ev id ence the alien wishes considered should be provided, as well as instructions for how any such information should be provided.

8.2 Unless an additional reasonable period of time is necessary (e.g., clue to operational ex igencies or an ali en's illness or request for additional time to obtain documentation), no later than seven days following a finding that an a1Tiving alien has a credible fear, a ORO officer familiar with the req uirements of this directive and COITespond ing legal authorities must conduct an intervi ew with the alien to assess his or her eli gibility for parole. Within that same period, the officer must complete the Record ofDetermination/Parole Determination Worksheet and submit it for supervisory rev iew. If the officer concludes that parole should be deni ed, the officer should draft a letter to this effect for the FOD's, DFOO's, or AFOD's signature to be provided to the ali en or the alien's representative and forward thi s letter for supervisory review along with the completed Record ofDetermination /Parole Determination Worksheet. The Jetter must include a bri ef expl anation of the reasons for denying parole and notify the alien that he or she may request redetennination of parole based upon changed circumstances or additional ev idence relevant to the ali en's identity, security risk, or risk of absconding.

8.3. An alien should be paroled under this directive i fDRO detcm1ines, in accordance wi th paragraphs ( I ) through (4) below, that the ali en's identity is suffi cientl y established, the alien poses neither a fli ght ri sk nor a danger to th e community, and no add itional facto rs weigh against release of the alien.

I) ldentity.

a) Although many individuals who anive in the United States fl eeing persecution or torture may understandably lack va lid identity documentation, asylum-related fraud is of genuine concem to ICE, and ORO must be satisfied that an alien is who he or she claims to be before releas ing the alien from custody.

b) When considering parole requests by an arriving alien found to have a credible fear, Field Office personnel must review al l releva nt docum entation offered by the ali en, as well as any other information avai lab le about the alien, to determine whether the alien can reasonab ly establish hi s or her identity.

c) If an alien lacks valid govemment-issued documents that support hi s or her assertion of identity, Field Office personnel shou ld ask whether the ali en can obtain government-issued documentation of identity.

d) If the alien cannot reasonabl y provide valid government-issued evidence of identity (includin g because the ali en reasonably does not wish to alert that government to his or her whereabouts), the alien can provide for consideration sworn affidavits from third parties. However, third-party affiants must include copies of va lid, governm ent issued photo-identification documents and full y establish their own identities and addresses.

e) Jf government-issued documentation of identity or thi rd-party affidavits from reliable affiants arc either not available or insufficient to establish the alien's identity on their own, Field Office personnel should explore whether the alien is otherwise able to establish hi s or her identity through credible statements such that there are no substantial reasons to doubt the alien 's identity.

2) Fl ight Risk.

a) [n order to be considered for release, an alien determined to have a credible fea r of persecution or torture must present su ffici cnt evidence demonstrating hi s or her likelihood of appearing when required.

b) Factors appropriate for consideration in determining whether an alien has made the required showing include, but are not limited to, community and fam ily ties, employment history, manner of entry and length of residence in the United States, stability of res idence in the United States, record of appearance for pri or court hearings and compliance with past rep01ting requirements, prior immigration and criminal history, ability to post bond, property ownership, and possible relie f or protection from removal avai lable to the ali en.

c) Field Office personnel shall consider whether setting a reasonab le bond and/or entering the alien in an altemative-to-dctention program would provide reasonable assurances that the alien will appear at all hearings and depart from the United States when required to do so.

d) Officers should exercise their discretion to determine what reasonab le assurances, indi vidually or in combination, arc wanantecl on a case-by-case basis to mitigate Oi ght risk. ln any event, the alien must be able to provide an address where he or she wi ll be residing and must timely advise DRO of any change of address.

3) Danger to the Community.

a) In order for an alien to be considered for paro le, Field Office personnel must make a determination whether an alien found to have a credible fear poses a danger to the community or to U.S. national security.

b) Information gem1ane to the determination includes, but is not limited to, evidence of past criminal activity in the Un ited States or abro ad, of activity contrary to U. S. national security interests, of other activity giving ri se to concerns of public sa fety or danger to the community (including due to serious mental illness), disciplinary infracti ons or incident reports, and any criminal or detenti on history that shows th at the alien has ham1ed or would likely ham1 himself or herself or others.

c) Any evidence of rehab ilitation also should be weighed.

4) Additional Factors.

a) Because parole remains an inherently di scretionary decision, in some cases there may be exceptional, overTiding factors that should be considered in add ition to the three factors discussed above. Such factors may include, but are not limited to, serious adverse foreign po licy consequences that may result if the alien is released or overriding law enforcement interests.

b) Field Office personnel may consider such additional factors during the parole decision-making process.

8.4. Assigned DRO officers should, where approp riate, request that parole app licants provide any supplementary infom1ation that would aid the officers in reaching a decision. The Record of Determination/Parole Determination Worksheet should be annotated to document the request fo r supplementary information and any response from the detainee.

8.5. After preparing and signing the Record ofDetermination/Parole Determination Worksheet, and in the case of a deni al of parole, drarting a written response to the ali en, the assigned DRO officer shall forward these materials and the parole request documentation to his or her rirst-line supervisor for review and concun·ence.

8.6. Upon his or her concurrence, the first-line supervisor shall sign the Record of Determination/Parole Determination Worksheet where indicated and fo rward it, along with any related docum entation, to the FOD (or, where applicable, the DFOD or AFOD) for final approval.

8. 7. The FOD (or, where applicable, the DFOD or AFOD) shall review the parole documentation, consult with the preparing officer and supervisor as necessary, and

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either grant or deny parole by signing the Record ofDete rminmion/Parole Det ermination Worksheet where indicated and, in the case of a denial, signing the w1itten response to the alien.

8.8. Following a !ina! decision by th e FOD to deny parole (or, where applicable, the DFOD or AFOD), the Field Office shall provide the written response to th e alien or, if represented, to the alien's legal representative, indicating that parole was denied. If parole is granted, the Field Office shall provide the alien with a date-stamped l-94 Form bearing the fo llowing notation: " Paroled under 8 C.F.R. § 212.5(b). Employment aut horization not to he provided on this basis."

8.9. If an alien makes a written request for redetem1ination of an earlier decision denying parole, the Field Office may, in its discretion, reinterview the alien or consider the request based solely on documentary material already provided or otherwise of record.

8. 10. The supporting documents and a copy of the parole decision sent to the alien (if applicable), the completed Record of Determination/Parole Determination Worksheet, and any other documents related to the parole adjudication should be placed in the alien's A-file in a record of proceeding format. Tn addition, a copy of the Record of Determination/Parole Determination Worksheet sha ll be stored and maintained under the authority of the foOD for use in preparing monthly reports.

8. 11. On a monthly basis, FODs shall submit reports to the Assistant Director for Operations, or his or her designee, detailing the number of parole adjudications conducted under this directive within thei r respective areas of responsibility, the results of those adjudications, and the underlying basis of each Field Office decision whether to grant or deny parole. The Assistant Director for Operations, or his or her designee, in conjunction with appropriate ORO Headquarters components, wil l analyze thi s reporting and co llect indi vidual case infonnation to review in more detail, as warranted. In particular, this analysis will rely on random sampling of all reported cases for in-depth review and wi ll include particu lar emphasis on cases where parole was not granted because of the presence of additional factors, per paragraph 8.3(4) of this directive. Any significant or recurring deficiencies identified during this monthly analysis should be explained to the affected field Office, which will take appropriate con·ecti ve action.

8. 12. At least once every six months, the Assistant Director for Operations, or his or her designee, shall prepare a thorough and objective quality assurance report, examini ng the rate at which paroled aliens abscond and the Field Orrices' parole decision- making, including any notew011hy trends or CO ITecti ve measures under1aken based upon the monthly quality assurance analysis required by paragraph 8. 11 of this directive.

9. ATTACHMENTS.

• Parole Advisal and Scheduling Notification. • Record of Determination/Parole Determination Worksheet.

I 0. NO PRIVATE RIGHTS CREATED. This directive is an internal policy statement of ICE. It is not intended to, shall not be constru ed to, may not be relied upon to, and docs not create, any rights, privileges, or benefit s, substanti ve or procedural, enforceable by an y party against the United States, its depar1ments, agencies, or other entities, its offi cers or employees, or any other person.

Approved:

Assistant Secretary U.S. Immi gration and Customs Enforcement

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EXHIBIT B CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 153 19 ofof 127371 Secretary U.S. Department of Homeland Security Washington, DC 20528 Homeland Security

February 20, 2017

MEMORANDUM FOR: Kevin McAleenan Acting Commissioner U.S. Customs and Border Protection

Thomas D. Homan Acting Director U.S. Immigration and Customs Enforcement

Lori Scialabba Acting Director U.S. Citizenship and Immigration Services

Joseph B. Maher Acting General Counsel

Dimple Shah Acting Assistant Secretary for International Affairs

Chip Fulghum Acting Undersecretary for Management

FROM: John Kelly Secretary

SUBJECT: Implement e President's Border Security and Immigration Enforcement Improvements Policies

This memorandum implements the Executive Order entitled "Border Security and Immigration Enforcement Improvements," issued by the President on January 25 , 2017, which establishes the President's policy regarding effective border security and immigration enforcement through faithful execution of the laws of the United States. It implements new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States. It constitutes guidance to all Department personnel, and supersedes all existing conflicting policy, directives, memoranda, and other guidance regarding this subject matter-to the extent of the conflict-except as otherwise expressly stated in this memorandum.

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A. Policies Regarding the Apprehension and Detention of Aliens Described in Section 235 of the Immigration and Nationality Act.

The President has determined that the lawful detention of aliens arriving in the United States and deemed inadmissible or otherwise described in section 235(b) of the Immigration and Nationality Act (INA) pending a final determination of whether to order them removed, including determining eligibility for immigration relief, is the most efficient means by which to enforce the immigration laws at our borders. Detention also prevents such aliens from committing crimes while at large in the United States, ensures that aliens will appear for their removal proceedings, and substantially increases the likelihood that aliens lawfully ordered removed will be removed.

These policies are consistent with rNA provisions that mandate detention of such aliens and allow me or my designee to exercise discretionary parole authority pursuant to section 212(d)(5) of the INA only on a case-by-case basis, and only for urgent humanitarian reasons or significant public benefit. Policies that facilitate the release of removable aliens apprehended at and between the ports of entry, which allow them to abscond and fail to appear at their removal hearings, undermine the border security mission. Such policies, collectively referred to as "catch- and-release," shall end.

Accordingly, effective upon my determination of (1) the establishment and deployment of a joint plan with the Department of Justice to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants; and, (2) the establishment of appropriate processing and detention facilities, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) personnel should only release from detention an alien detained pursuant to section 235(b) of the INA, who was apprehended or encountered after illegally entering or attempting to illegally enter the United States, in the following situations on a case-by-case basis, to the extent consistent with applicable statutes and regulations:

1. When removing the alien from the United States pursuant to statute or regulation;

2. When the alien obtains an order granting relief or protection from removal or the Department of Homeland Security (DHS) determines that the individual is a U.S. citizen, national of the United States, or an alien who is a lawful permanent resident, refugee, asylee, holds temporary protected status, or holds a valid immigration status in the United States;

3. When an ICE Field Office Director, ICE Special Agent-in-Charge, U.S. Border Patrol Sector Chief, CBP Director of Field Operations, or CBP Air & Marine Operations Director consents to the alien's withdrawal of an application for admission, and the alien contemporaneously departs from the United States;

4. When required to do so by statute, or to comply with a binding settlement agreement or order issued by a competent judicial or administrative authority;

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5. When an ICE Field Office Director, ICE Special Agent-in-Charge, U.S. Border Patrol Sector Chief, CBP Director of Field Operations, or CBP Air & Marine Operations Director authorizes the alien's parole pursuant to section 212(d)(5) of the INA with the written concurrence of the Deputy Director of ICE or the Deputy Commissioner of CBP, except in exigent circumstances such as medical emergencies where seeking prior approval is not practicable. In those exceptional instances, any such parole will be reported to the Deputy Director or Deputy Commissioner as expeditiously as possible; or

6. When an arriving alien processed under the expedited removal provisions of section 235(b) has been found to have established a "credible fear" of persecution or torture by an asylum officer or an immigration judge, provided that such an alien affirmatively establishes to the satisfaction of an ICE immigration officer his or her identity, that he or she presents neither a security risk nor a risk of absconding, and provided that he or she agrees to comply with any additional conditions of release imposed by ICE to ensure public safety and appearance at any removal hearings.

To the extent current regulations are inconsistent with this guidance, components will develop or revise regulations as appropriate. Until such regulations are revised or removed, Department officials shall continue to operate according to regulations currently in place.

As the Department works to expand detention capabilities, detention of all such individuals may not be immediately possible, and detention resources should be prioritized based upon potential danger and risk of flight if an individual alien is not detained, and parole determinations will be made in accordance with current regulations and guidance. See 8 C.F.R. §§ 212.5, 235.3. This guidance does not prohibit the return of an alien who is arriving on land to the foreign territory contiguous to the United States from which the alien is arriving pending a removal proceeding under section 240 of the INA consistent with the direction of an ICE Field Office Director, ICE Special Agent-in-Charge, CBP Chief Patrol Agent, or CBP Director of Field Operations.

B. Hiring More CBP Agents/Officers

CBP has insufficient agents/officers to effectively detect, track, and apprehend all aliens illegally entering the United States. The United States needs additional agents and officers to ensure complete operational control of the border. Accordingly, the Commissioner of CBP shall- while ensuring consistency in training and standards-immediately begin the process of hiring 5,000 additional Border Patrol agents, as well as 500 Air & Marine Agents/Officers, subject to the availability of resources, and take all actions necessary to ensure that such agents/officers enter on duty and are assigned to appropriate duty stations, including providing for the attendant resources and additional personnel necessary to support such agents, as soon as practicable.

Human Capital leadership in CBP and ICE, in coordination with the Under Secretary for 3 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 156 22 ofof 127371

Management, Chief Financial Officer, and Chief Human Capital Officer, shall develop hiring plans that balance growth and interagency attrition by integrating workforce shaping and career paths for incumbents and new hires.

C. Identifying and Quantifying Sources of Aid to Mexico

The President has directed the heads of all executive departments to identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico. Accordingly, the Under Secretary for Management shall identify all sources of direct or indirect aid and assistance, excluding intelligence activities, from every departmental component to the Government of Mexico on an annual basis, for the last five fiscal years, and quantify such aid or assistance. The Under Secretary for Management shall submit a report to me reflecting historic levels of such aid or assistance provided annually within 30 days of the date ofthis memorandum.

D. Expansion of the 287(g) Program in the Border Region

Section 287(g) of the INA authorizes me to enter into a written agreement with a state or political subdivision thereof, for the purpose of authorizing qualified officers or employees of the state or subdivision to perform the functions of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States. This grant of authority, known as the 287(g) Program, has been a highly successful force multiplier that authorizes state or local law enforcement personnel to perform all law enforcement functions specified in section 287(a) of the INA, including the authority to investigate, identify, apprehend, arrest, detain, transport and conduct searches of an alien for the purposes of enforcing the immigration laws. From January 2006 through September 2015, the 287(g) Program led to the identification of more than 402,000 removable aliens, primarily through encounters at local jails.

Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy. Aliens who engage in criminal conduct are priorities for arrest and removal and will often be encountered by state and local law enforcement officers during the course of their routine duties. It is in the interest of the Department to partner with those state and local jurisdictions through 287(g) agreements to assist in the arrest and removal of criminal aliens.

To maximize participation by state and local jurisdictions in the enforcement of federal immigration law near the southern border, I am directing the Director of ICE and the Commissioner of CBP to engage immediately with all willing and qualified Jaw enforcement jurisdictions that meet all program requirements for the purpose of entering into agreements under 287(g) of the INA.

The Commissioner of CBP and the Director of ICE should consider the operational functions and capabilities of the jurisdictions willing to enter into 287(g) agreements and structure such agreements in a manner that employs the most effective enforcement model for that jurisdiction, including the jail enforcement model, task force officer model, or joint jail enforcement-task force officer model. In furtherance of my direction herein, the Commissioner of

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CBP is authorized, in addition to the Director of ICE, to accept state services and take other actions as appropriate to carry out immigration enforcement pursuant to 287(g).

E. Commissioning a Comprehensive Study of Border Security

The Under Secretary for Management, in consultation with the Commissioner ofCBP, Joint Task Force (Border), and Commandant of the Coast Guard, is directed to commission an immediate, comprehensive study of the security of the southern border (air, land and maritime) to identify vulnerabilities and provide recommendations to enhance border security. The study should include all aspects of the current border security environment, including the availability of federal and state resources to develop and implement an effective border security strategy that will achieve complete operational control ofthe border.

F. Border Wall Construction and Funding

A wall along the southern border is necessary to deter and prevent the illegal entry of aliens and is a critical component of the President's overall border security strategy. Congress has authorized the construction of physical barriers and roads at the border to prevent illegal immigration in several statutory provisions, including section 102 of the Jllegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, 8 U.S.C. § 1103 note.

Consistent with the President's Executive Order, the will of Congress and the need to secure the border in the national interest, CBP, in consultation with the appropriate executive departments and agencies, and nongovernmental entities having relevant expertise-and using materials originating in the United States to the maximum extent permitted by law-shall immediately begin planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, along the land border with Mexico in accordance with existing law, in the most appropriate locations and utilizing appropriate materials and technology to most effectively achieve operational control of the border.

The Under Secretary for Management, in consultation with the Commissioner of CBP shall immediately identify and allocate all sources of available funding for the planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, and develop requirements for total ownership cost of this project, including preparing Congressional budget requests for the current fiscal year (e.g., supplemental budget requests) and subsequent fiscal years.

G. Expanding Expedited Removal Pursuant to Section 235(b)(l)(A)(iii)(I) of the INA

It is in the national interest to detain and expeditiously remove from the United States aliens apprehended at the border, who have been ordered removed after consideration and denial of their claims for relief or protection. Pursuant to section 235(b)(l )(A)(i) of the INA, if an immigration officer determines that an arriving alien is inadmissible to the United States under

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section 212(a)(6)(C) or section 212(a)(7) of the INA, the officer shall, consistent with all applicable laws, order the alien removed from the United States without further hearing or review, unless the alien is an unaccompanied alien child as defined in 6 U.S.C. § 279(g)(2), indicates an intention to apply for asylum or a fear of persecution or torture or a fear of return to his or her country, or claims to have a valid immigration status within the United States or to be a citizen or national ofthe United States.

Pursuant to section 235(b)(l)(A)(iii)(I) of the INA and other provisions oflaw, I have been granted the authority to apply, by designation in my sole and unreviewable discretion, the expedited removal provisions in section 235(b)(l)(A)(i) and (ii) of the INA to aliens who have not been admitted or paroled into the United States, who are inadmissible to the United States under section 212(a)(6)(C) or section 212(a)(7) of the INA, and who have not affirmatively shown, to the satisfaction of an immigration officer, that they have been continuously physically present in the United States for the two-year period immediately prior to the determination of their inadmissibility. To date, this authority has only been exercised to designate for application of expedited removal, aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry. 1

The surge of illegal immigration at the southern border has overwhelmed federal agencies and resources and has created a significant national security vulnerability to the United States. Thousands of aliens apprehended at the border, placed in removal proceedings, and released from custody have absconded and failed to appear at their removal hearings. Immigration courts are experiencing a historic backlog of removal cases, primarily proceedings under section 240 of the INA for individuals who are not currently detained.

During October 2016 and November 2016, there were 46,184 and 47,215 apprehensions, respectively, between ports of entry on our southern border. In comparison, during October 2015 and November 2015 there were 32,724 and 32,838 apprehensions, respectively, between ports of entry on our southern border. This increase of 10,000- 15,000 apprehensions per month has significantly strained DHS resources.

Furthermore, according to EOIR information provided to DHS, there are more than 534,000 cases currently pending on immigration court dockets nationwide- a record high. By contrast, according to some reports, there were nearly 168,000 cases pending at the end of fiscal year (FY) 2004 when section 235(b)(1)(A)(i) was last expanded.2 This represents an increase of more than 200% in the number of cases pending completion. The average removal case for an alien who is not detained has been pending for more than two years before an immigrationjudge.3 In some immigration courts, aliens who are not detained will not have their cases heard by an

1 Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(I )(a)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68924 (Nov. 13 , 2002); Designating Aliens For Expedited Removal, 69 Fed. Reg. 48877 (Aug. II, 2004 ); Eliminating Exception to Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 82 Fed. Reg. 4902 (Jan. 17, 20 17). 2 Syracuse University, Transactional Records Access Clearinghouse (TRAC) Data Research; available at http://trac.syr.edu/phptools/immigration/court_backlogl. 3 /d. 6 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 159 25 ofof 127371

immigration judge for as long as five years. This unacceptable delay affords removable aliens with no plausible claim for relief to remain unlawfully in the United States for many years.

To ensure the prompt removal of aliens apprehended soon after crossing the border illegally, the Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(l)(a)(iii) of the Immigration and Nationality Act, which may, to the extent I determine is appropriate, depart from the limitations set forth in the designation currently in force. I direct the Commissioner of CBP and the Director of ICE to conform the use of expedited removal procedures to the designations made in this notice upon its publication.

H. Implementing the Provisions of Section 235(b)(2)(C) of the INA to Return Aliens to Contiguous Countries

Section 235(b)(2)(C) of the INA authorizes the Department to"return aliens arriving on land from a foreign territory contiguous to the United States, to the territory from which they arrived, pending a formal removal proceeding under section 240 of the INA. When aliens so apprehended do not pose a risk of a subsequent illegal entry or attempted illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings saves the Department's detention and adjudication resources for other priority aliens.

Accordingly, subject to the requirements of section 1232, Title 8, United States Code, related to unaccompanied alien children and to the extent otherwise consistent with the law and U.S. international treaty obligations, CBP and ICE personnel shall, to the extent appropriate and reasonably practicable, return aliens described in section 235(b)(2)(A) of the INA, who are placed in removal proceedings under section 240 of the INA- and who, consistent with the guidance of an ICE Field Office Director, CBP Chief Patrol Agent, or CBP Director of Field Operations, pose no risk of recidivism- to the territory of the foreign contiguous country from which they arrived pending such removal proceedings.

To facilitate the completion of removal proceedings for aliens so returned to the contiguous country, ICE Field Office Directors, ICE Special Agents-in-Charge, CBP Chief Patrol Agent, and CBP Directors of Field Operations shall make available facilities for such aliens to appear via video teleconference. The Director of ICE and the Commissioner of CBP shall consult with the Director of EOIR to establish a functional, interoperable video teleconference system to ensure maximum capability to conduct video teleconference removal hearings for those aliens so returned to the contiguous country.

I. Enhancing Asylum Referrals and Credible Fear Determinations Pursuant to Section 235(b)(l) of the INA

With certain exceptions, any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum. For those aliens who are subject 7 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 160 26 ofof 127371

to expedited removal under section 235(b) of the INA, aliens who claim a fear of return must be referred to an asylum officer to determine whether they have established a credible fear of persecution or torture.4 To establish a credible fear of persecution, an alien must demonstrate that there is a "significant possibility" that the alien could establish eligibility for asylum, taking into account the credibility of the statements made by the alien in support of the claim and such other facts as are known to the officer. 5

The Director ofUSCIS shall ensure that asylum officers conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. In determining whether the alien has demonstrated a significant possibility that the alien could establish eligibility for asylum, or for withholding or deferral of removal under the Convention Against Torture, the asylum officer shall consider the statements of the alien and determine the credibility of the alien's statements made in support of his or her claim and shall consider other facts known to the officer, as required by statute.6

The asylum officer shall make a positive credible fear finding only after the officer has considered all relevant evidence and determined, based on credible evidence, that the alien has a significant possibility of establishing eligibility for asylum, or for withholding or deferral of removal under the Convention Against Torture, based on established legal authority.7

The Director ofUSCIS shall also increase the operational capacity of the Fraud Detection and National Security (FDNS) Directorate and continue to strengthen the integration of its operations to support the Field Operations, Refugee, Asylum, and International Operations, and Service Center Operations Directorate, to detect and prevent fraud in the asylum and benefits adjudication processes, and in consultation with the USC IS Office of Policy and Strategy as operationally appropriate.

The Director ofUSCIS, the Commissioner ofCBP, and the Director ofiCE shall review fraud detection, deterrence, and prevention measures throughout their respective agencies and provide me with a consolidated report within 90 days of the date of this memorandum regarding fraud vulnerabilities in the asylum and benefits adjudication processes, and propose measures to enhance fraud detection, deterrence, and prevention in these processes.

J. Allocation of Resources and Personnel to the Southern Border for Detention of Aliens and Adjudication of Claims

The detention of aliens apprehended at the border is critical to the effective enforcement of the immigration laws. Aliens who are released from custody pending a determination of their removability are highly likely to abscond and fail to attend their removal hearings. Moreover, the screening of credible fear claims by USCIS and adjudication of asylum. claims by EOIR at

4 See INA § 235(b)(J)(A)-(8); 8 C.F.R. §§ 235.3, 208.30. 5 See INA § 235(b)(J)(B)(v). 6 See id. 7 /d. 8 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 161 27 ofof 127371

detention facilities located at or near the point of apprehension will facilitate an expedited resolution of those claims and result in lower detention and transportation costs.

Accordingly, the Director ofiCE and the Commissioner of CBP should take all necessary action and allocate all available resources to expand their detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable. CBP shall focus these actions on expansion of"short-term detention" (defined as 72 hours or less under 6 U.S.C. § 21l(m)) capability, and ICE will focus these actions on expansion of all other detention capabilities. CBP and ICE should also explore options for joint temporary structures that meet appropriate standards for detention given the length of stay in those facilities.

In addition, to the greatest extent practicable, the Director of USCIS is directed to increase the number of asylum officers and FDNS officers assigned to detention facilities Located at or near the border with Mexico to properly and efficiently adjudicate credible fear and reasonable fear claims and to counter asylum-related fraud.

K. Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA

The authority to parole aliens into the United States is set forth in section 212(d)(5) of the INA, which provides that the Secretary may, in his discretion and on a case-by-case basis, temporarily parole into the United States any alien who is an applicant for admission for urgent humanitarian reasons or significant public benefit. The statutory language authorizes parole in individual cases only where, after careful consideration of the circumstances, it is necessary because of demonstrated urgent humanitarian reasons or significant public benefit. In my judgment, such authority should be exercised sparingly.

The practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration.

Therefore, the Director ofUSCIS, the Commissioner ofCBP, and the Director ofiCE shall ensure that, pending the issuance of final regulations clarifying the appropriate use of the parole power, appropriate written policy guidance and training is provided to employees within those agencies exercising parole authority, including advance parole, so that such employees are familiar with the proper exercise of parole under section 212(d)(5) of the INA and exercise such parole authority only on a case-by-case basis, consistent with the law and written policy guidance.

Notwithstanding any other provision of this memorandum, pending my further review and evaluation of the impact of operational changes to implement the Executive Order, and additional guidance on the issue by the Director of ICE, the ICE policy directive establishing standards and procedures for the parole of certain arriving aliens found to have a credible fear of persecution or

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torture shall remain in full force and effect.8 The ICE policy directive shall be implemented in a manner consistent with its plain language. In every case, the burden to establish that his or her release would neither pose a danger to the community, nor a risk of flight remains on the individual alien, and ICE retains ultimate discretion whether it grants parole in a particular case.

L. Proper Processing and Treatment of Unaccompanied Alien Minors Encountered at the Border

In accordance with section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of2008 (codified in part at 8 U.S.C. § 1232) and section 462 of the Homeland Security Act of2002 (6 U.S.C. § 279), unaccompanied alien children are provided special protections to ensure that they are properly processed and receive the appropriate care and placement when they are encountered by an immigration officer. An unaccompanied alien child, as defined in section 279(g)(2), Title 6, United States Code, is an alien who has no lawful immigration status in the United States, has not attained 18 years of age; and with respect to whom, (1) there is no parent or legal guardian in the United States, or (2) no parent oflegal guardian in the United States is available to provide care and physical custody.

Approximately 155,000 unaccompanied alien children have been apprehended at the southern border in the last three years. Most of these minors are from El Salvador, Honduras, and Guatemala, many of whom travel overland to the southern border with the assistance of a smuggler who is paid several thousand dollars by one or both parents, who reside illegally in the United States.

With limited exceptions, upon apprehension, CBP or ICE must promptly determine if a child meets the definition of an "unaccompanied alien child" and, if so, the child must be transferred to the custody of the Office of Refugee Resettlement within the Department of Health and Human Services (HHS) within 72 hours, absent exceptional circumstances.9 The determination that the child is an "unaccompanied alien child" entitles the child to special protections, including placement in a suitable care facility, access to social services, removal proceedings before an immigration judge under section 240 of the INA, rather than expedited removal proceedings under section 235(b) of the INA, and initial adjudication of any asylum claim by USCIS. 10

Approximately 60% of minors initially determined to be "unaccompanied alien children" are placed in the care of one or more parents illegally residing in the United States. However, by Department policy and practice, such minors maintained their status as "unaccompanied alien children," notwithstanding that they may no longer meet the statutory definition once they have been placed by HHS in the custody of a parent in the United States who can care for the minor. Exploitation of that policy led to abuses by many of the parents and legal guardians of those minors and has contributed to significant administrative delays in adjudications by immigration

8 ICE Policy No. I I 002. I: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009). 9 See 8 U.S.C. § l232(b)(3). 10 See generally 8 U.S.C. § 1232; INA§ 208(b)(3)(C). 10 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 163 29 ofof 127371

courts and USCIS.

To ensure identification of abuses and the processing of unaccompanied alien children consistent with the statutory framework and any applicable court order, the Director ofUSCIS, the Commissioner ofCBP, and the Director of ICE are directed to develop uniform written guidance and training for all employees and contractors of those agencies regarding the proper processing of unaccompanied alien children, the timely and fair adjudication of their claims for relief from removal, and, if appropriate, their safe repatriation at the conclusion of removal proceedings. In developing such guidance and training, they shall establish standardized review procedures to confirm that alien children who are initially determined to be "unaccompanied alien child[ren]," as defined in section 279(g)(2), Title 6, United States Code, continue to fall within the statutory definition when being considered for the legal protections afforded to such children as they go through the removal process.

M. Accountability Measures to Protect Alien Children from Exploitation and Prevent Abuses of Our Immigration Laws

Although the Department's personnel must process unaccompanied alien children pursuant to the requirements described above, we have an obligation to ensure that those who conspire to violate our immigration laws do not do so with impunity- particularly in light of the unique vulnerabilities of alien children who are smuggled or trafficked into the United States.

The parents and family members of these children, who are often illegally present in the United States, often pay smugglers several thousand dollars to bring their children into this country. Tragically, many of these children fall victim to robbery, extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico to the United States. Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable.

Accordingly, the Director ofiCE and the Commissioner of CBP shall ensure the proper enforcement of our immigration laws against any individual who-directly or indirectly- facilitates the illegal smuggling or trafficking of an alien child into the United States. In appropriate cases, taking into account the risk of harm to the child from the specific smuggling or trafficking activity that the individual facilitated and other factors relevant to the individual's culpability and the child's welfare, proper enforcement includes (but is not limited to) placing any such individual who is a removable alien into removal proceedings, or referring the individual for criminal prosecution.

N. Prioritizing Criminal Prosecutions for Immigration Offenses Committed at the Border

The surge of illegal immigration at the southern border has produced a significant increase in organized criminal activity in the border region. Mexican drug cartels, Central American gangs, and other violent transnational criminal organizations have established sophisticated criminal 11 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 164 30 ofof 127371

enterprises on both sides of the border. The large-scale movement of Central Americans, Mexicans, and other foreign nationals into the border area has significantly strained federal agencies and resources dedicated to border security. These criminal organizations have monopolized the human trafficking, human smuggling, and drug trafficking trades in the border regton.

It is in the national interest of the United States to prevent criminals and criminal organizations from destabilizing border security through the proliferation of illicit transactions and violence perpetrated by criminal organizations.

To counter this substantial and ongoing threat to the security of the southern border- including threats to our maritime border and the approaches- the Directors of the Joint Task Forces-West, -East, and -Investigations, as well as the ICE-led Border Enforcement Security Task Forces (BESTs), are directed to plan and implement enhanced counternetwork operations directed at disrupting transnational criminal organizations, focused on those involved in human smuggling. The Department will support this work through the Office oflntelligence and Analysis, CBP's National Targeting Center, and the DHS Human Smuggling Cell.

In addition, the task forces should include participants from other federal, state, and local agencies, and should target individuals and organizations whose criminal conduct undermines border security or the integrity of the immigration system, including offenses related to alien smuggling or trafficking, drug trafficking, illegal entry and reentry, visa fraud, identity theft, unlawful possession or use of official documents, and acts of violence committed against persons or property at or near the border.

In order to support the efforts of the BESTs and counter network operations of the Joint Task Forces, the Director of ICE shall increase of the number of special agents and analysts in the Northern Triangle ICE Attache Offices and increase the number of vetted Transnational Criminal Investigative Unit international partners. This expansion ofiCE's international footprint will focus both domestic and international efforts to dismantle transnational criminal organizations that are facilitating and profiting from the smuggling routes to the United States.

0. Public Reporting of Border Apprehensions Data

The Department has an obligation to perform its mission in a transparent and forthright mariner. The public is entitled to know, with a reasonable degree of detail, information pertaining to the aliens unlawfully entering at our borders.

Therefore, consistent with law, in an effort to promote transparency and renew confidence in the Department's border security mission, the Commissioner of CBP and the Director ofiCE shall develop a standardized method for public reporting of statistical data regarding aliens apprehended at or near the border for violating the immigration law. The reporting method shall include uniform terminology and shall utilize a format that is easily understandable by the public in a medium that can be readily accessed.

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At a minimum, in addition to statistical information currently being publicly reported regarding apprehended aliens, the following information must be included: the number of convicted criminals and the nature of their offenses; the prevalence of gang members and prior immigration violators; the custody status of aliens and, if released, the reason for release and location of that release; and the number of aliens ordered removed and those aliens physically removed.

P. No Private Right of Action

This document provides only internal DHS policy guidance, which may be modified, rescinded, or superseded at any time without notice. This guidance is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.

In implementing this guidance, I direct DHS Components to consult with legal counsel to ensure compliance with all applicable Jaws, including the Administrative Procedure Act.

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EXHIBIT C CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 167 33 ofof 127371

No. 15-1204 In the Supreme Court of the United States

DAVID JENNINGS, ET AL., PETITIONERS v. ALEJANDRO RODRIGUEZ, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SUPPLEMENTAL REPLY BRIEF FOR THE PETITIONERS

EDWIN S. KNEEDLER Deputy Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217

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more than sufficient process. If their claim is deemed credible by an asylum officer (or by an IJ), regulations require that they be placed in IJ removal proceedings with the notice and opportunity to be heard that the Mezei dissenters viewed as sufficient; if the IJ denies their claim and orders them removed, they have access to appellate review; their detention is inherently temporary, not open-ended; and the government expedites proceedings to minimize that temporary detention. See Gov’t Supp. Br. 22-24. Furthermore, every studied subclass member remained in custody pursuant to an individualized determination that release on parole was unwarranted. See J.A. 91 (identifying studied subclass members based on a parole worksheet). The government’s policy is to automatically consider parole for arriving aliens found to have a credible fear, and to release the alien if he establishes his identity, demonstrates that he is not a flight risk or danger, and there are no countervailing considerations. J.A. 48-50. 2 The policy calls for far more than “checking a box on a form, with no hearing, no record, and no appeal.” Resps. Supp. Br. 27. It provides for notice to the alien, an interview, the opportunity to respond and present evidence, a custody de-

2 This policy remains in “full force and effect.” Memorandum from John Kelly, Sec’y, Dep’t of Homeland Sec., Implementing the President’s Border Security and Immigration Enforcement Im- provements Policies 10 (Feb. 20, 2017) (Kelly Mem.). The Secre- tary’s memorandum reiterates that the burden “remains on the individual alien” and that U.S. Immigration and Customs Enforce- ment (ICE) “retains ultimate discretion whether it grants parole in a particular case.” Ibid. It also states that the policy is subject to “further review and evaluation of the impact of operational changes” to implement Executive Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017). Kelly Mem. 9.

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termination by an officer who did not conduct the credible-fear screening, supervisory review, and further parole consideration based upon changed circumstances or new evidence. J.A. 48-50. That is ample procedure on the issue of release during proceedings. Cf. Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1278-1281 (1975). There is also good reason for Department of Homeland Security officials, not IJs, to make this determination: The Sec- retary has the “power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens.” 8 U.S.C. 1103(a)(5); see 6 U.S.C. 202 (Secretary’s responsibilities include “[p]reventing the entry of terrorists,” “[s]ecuring the borders,” and establishing rules governing parole). Unlike studied class members overall (who were usually ordered removed), about two-thirds of studied aliens identified to be in the Section 1225(b) subclass obtained asylum or other relief. J.A. 98, 100 (42 of 66 completed cases). But the government has disputed that the statistics derived from this small sample are representative nationwide, see 12-56734 Gov’t C.A. Br. 10, and in any event they would provide no basis for respondents’ sweeping facial challenge. It is fully consistent with due process to temporarily detain an arriving alien during proceedings to determine whether he will be permitted to enter the United States, when he has failed to establish his identity or has failed to show that he will not be a flight risk or danger. See 8 U.S.C. 1182(d)(5); 8 C.F.R. 212.5(b); J.A. 48-50. As the Court put it “more than a century ago,” removal proceedings “would be vain if those accused could not be held in custody pending the inquiry into their true

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EXHIBIT D CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 171 37 ofof 127371 Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents 8793

Presidential Documents

Executive Order 13767 of January 25, 2017 Border Security and Immigration Enforcement Improvements

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nation- ality Act (8 U.S.C. 1101 et seq.) (INA), the Secure Fence Act of 2006 (Public Law 109–367) (Secure Fence Act), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208 Div. C) (IIRIRA), and in order to ensure the safety and territorial integrity of the United States as well as to ensure that the Nation’s immigration laws are faithfully executed, I hereby order as follows: Section 1. Purpose. Border security is critically important to the national security of the United States. Aliens who illegally enter the United States without inspection or admission present a significant threat to national security and public safety. Such aliens have not been identified or inspected by Federal immigration officers to determine their admissibility to the United States. The recent surge of illegal immigration at the southern border with Mexico has placed a significant strain on Federal resources and overwhelmed agencies charged with border security and immigration enforcement, as well as the local communities into which many of the aliens are placed. Transnational criminal organizations operate sophisticated drug- and human- trafficking networks and smuggling operations on both sides of the southern border, contributing to a significant increase in violent crime and United States deaths from dangerous drugs. Among those who illegally enter are those who seek to harm Americans through acts of terror or criminal conduct. Continued illegal immigration presents a clear and present danger to the interests of the United States. Federal immigration law both imposes the responsibility and provides the means for the Federal Government, in cooperation with border States, to secure the Nation’s southern border. Although Federal immigration law provides a robust framework for Federal-State partnership in enforcing our immigration laws—and the Congress has authorized and provided appropriations to secure our borders—the Federal Government has failed to discharge this basic sovereign responsibility. The purpose of this order is to direct executive departments and agencies (agencies) to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely. Sec. 2. Policy. It is the policy of the executive branch to: (a) secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism; (b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations; (c) expedite determinations of apprehended individuals’ claims of eligibility to remain in the United States; (d) remove promptly those individuals whose legal claims to remain in the United States have been lawfully rejected, after any appropriate civil or criminal sanctions have been imposed; and

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(e) cooperate fully with States and local law enforcement in enacting Federal-State partnerships to enforce Federal immigration priorities, as well as State monitoring and detention programs that are consistent with Federal law and do not undermine Federal immigration priorities. Sec. 3. Definitions. (a) ‘‘Asylum officer’’ has the meaning given the term in section 235(b)(1)(E) of the INA (8 U.S.C. 1225(b)(1)). (b) ‘‘Southern border’’ shall mean the contiguous land border between the United States and Mexico, including all points of entry. (c) ‘‘Border States’’ shall mean the States of the United States immediately adjacent to the contiguous land border between the United States and Mexico. (d) Except as otherwise noted, ‘‘the Secretary’’ shall refer to the Secretary of Homeland Security. (e) ‘‘Wall’’ shall mean a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier. (f) ‘‘Executive department’’ shall have the meaning given in section 101 of title 5, United States Code. (g) ‘‘Regulations’’ shall mean any and all Federal rules, regulations, and directives lawfully promulgated by agencies. (h) ‘‘Operational control’’ shall mean the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband. Sec. 4. Physical Security of the Southern Border of the United States. The Secretary shall immediately take the following steps to obtain complete operational control, as determined by the Secretary, of the southern border: (a) In accordance with existing law, including the Secure Fence Act and IIRIRA, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border; (b) Identify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern border; (c) Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years; and (d) Produce a comprehensive study of the security of the southern border, to be completed within 180 days of this order, that shall include the current state of southern border security, all geophysical and topographical aspects of the southern border, the availability of Federal and State resources necessary to achieve complete operational control of the southern border, and a strategy to obtain and maintain complete operational control of the southern border. Sec. 5. Detention Facilities. (a) The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico. (b) The Secretary shall take all appropriate action and allocate all legally available resources to immediately assign asylum officers to immigration detention facilities for the purpose of accepting asylum referrals and conducting credible fear determinations pursuant to section 235(b)(1) of the INA (8 U.S.C. 1225(b)(1)) and applicable regulations and reasonable fear determinations pursuant to applicable regulations. (c) The Attorney General shall take all appropriate action and allocate all legally available resources to immediately assign immigration judges to immigration detention facilities operated or controlled by the Secretary, or operated or controlled pursuant to contract by the Secretary, for the

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purpose of conducting proceedings authorized under title 8, chapter 12, subchapter II, United States Code. Sec. 6. Detention for Illegal Entry. The Secretary shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as ‘‘catch and release,’’ whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law. Sec. 7. Return to Territory. The Secretary shall take appropriate action, consistent with the requirements of section 1232 of title 8, United States Code, to ensure that aliens described in section 235(b)(2)(C) of the INA (8 U.S.C. 1225(b)(2)(C)) are returned to the territory from which they came pending a formal removal proceeding. Sec. 8. Additional Border Patrol Agents. Subject to available appropriations, the Secretary, through the Commissioner of U.S. Customs and Border Protec- tion, shall take all appropriate action to hire 5,000 additional Border Patrol agents, and all appropriate action to ensure that such agents enter on duty and are assigned to duty stations as soon as is practicable. Sec. 9. Foreign Aid Reporting Requirements. The head of each executive department and agency shall identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico on an annual basis over the past five years, including all bilateral and multilat- eral development aid, economic assistance, humanitarian aid, and military aid. Within 30 days of the date of this order, the head of each executive department and agency shall submit this information to the Secretary of State. Within 60 days of the date of this order, the Secretary shall submit to the President a consolidated report reflecting the levels of such aid and assistance that has been provided annually, over each of the past five years. Sec. 10. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law. (a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)). (b) To the extent permitted by law, and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties. (c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in the manner that provides the most effective model for enforcing Federal immigration laws and obtain- ing operational control over the border for that jurisdiction. Sec. 11. Parole, Asylum, and Removal. It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.

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(a) The Secretary shall immediately take all appropriate action to ensure that the parole and asylum provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise removable aliens. (b) The Secretary shall take all appropriate action, including by promul- gating any appropriate regulations, to ensure that asylum referrals and credible fear determinations pursuant to section 235(b)(1) of the INA (8 U.S.C. 1125(b)(1)) and 8 CFR 208.30, and reasonable fear determinations pursuant to 8 CFR 208.31, are conducted in a manner consistent with the plain language of those provisions. (c) Pursuant to section 235(b)(1)(A)(iii)(I) of the INA, the Secretary shall take appropriate action to apply, in his sole and unreviewable discretion, the provisions of section 235(b)(1)(A)(i) and (ii) of the INA to the aliens designated under section 235(b)(1)(A)(iii)(II). (d) The Secretary shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole. (e) The Secretary shall take appropriate action to require that all Depart- ment of Homeland Security personnel are properly trained on the proper application of section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) and section 462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2)), to ensure that unaccompanied alien children are properly processed, receive appropriate care and placement while in the custody of the Department of Homeland Security, and, when appropriate, are safely repatriated in accordance with law. Sec. 12. Authorization to Enter Federal Lands. The Secretary, in conjunction with the Secretary of the Interior and any other heads of agencies as necessary, shall take all appropriate action to: (a) permit all officers and employees of the United States, as well as all State and local officers as authorized by the Secretary, to have access to all Federal lands as necessary and appropriate to implement this order; and (b) enable those officers and employees of the United States, as well as all State and local officers as authorized by the Secretary, to perform such actions on Federal lands as the Secretary deems necessary and appropriate to implement this order. Sec. 13. Priority Enforcement. The Attorney General shall take all appropriate steps to establish prosecution guidelines and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecutions of offenses having a nexus to the southern border. Sec. 14. Government Transparency. The Secretary shall, on a monthly basis and in a publicly available way, report statistical data on aliens apprehended at or near the southern border using a uniform method of reporting by all Department of Homeland Security components, in a format that is easily understandable by the public. Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary, within 90 days of the date of this order, and the Attorney General, within 180 days, shall each submit to the President a report on the progress of the directives contained in this order. Sec. 16. Hiring. The Office of Personnel Management shall take appropriate action as may be necessary to facilitate hiring personnel to implement this order. Sec. 17. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

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(i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE, January 25, 2017.

[FR Doc. 2017–02095 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------){

Mauricio Humberto GALO ESPINAL, ORDER GRANTING PETITION Petitioner, FOR WRIT OF HABEAS -against- CORPUS

Thomas DECKER, et al., 17 Civ. 3492 (AKI-I)

Respondents.

------){

ALVIN K. HELLERSTEIN, U.S.D.J.:

Petitioner Mauricio Humberto Galo Esponal ("Galo"), a native of El Salvador, has been a lawful permanent resident ("LPR") of the United States since 1990. In 2015, the

Department of Homeland Security ("DHS") initiated removal proceedings against Gala. DHS has detained Galo pursuant to 8 U.S.C. 1225(b)(2)(A) since December 6, 2016. Galo has filed a petition for a writ of habeas corpus ordering respondents to provide Galo with an individualized

bond hearing before an immigration judge. The petition is granted.

BACKGROUND

Galois a 57-year old Salvadoran man who has lived in the United States since

1981, and has been an LPR since 1990. Pet. 1. On April 23, 2015, Gala returned to the United

States from a brief trip to El Salvador. Upon his arrival, DHS designated Galo as an "arriving

alien" pursuant to 8 U.S.C. 1225(b)(2)(A) ("Section 1225(b)"), despite his LPR status. DHS did

not, however, detain Ga1o or instruct him to report for an immigration hearing. Pet. 22. On

September 15, 2015, DHS formally initiated removal proceedings against Galo by serving him with a Notice to Appear ("NTA"). The stated basis for Gala's removal is that Galo was

convicted in 2005 and 2006 of several crimes involving moral turpitude (criminal trespass, grand CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-03492-AKH DocumentDocument Document 10038-3 17 Filed Filed Filed 12/07/18 09/25/17 06/30/17 Page Page Page 178 44 2 of ofof 6 127371

larceny, and attempted grand larceny). See 8 U.S.C. § 1182(a)(2)(A). DHS did not detain Galo at that time.

On December 7, 2016, approximately 20 months after he returned to the United

States, Galo was detained by Immigration and Customs Enforcement ("ICE"). 23. Galo's detention came one day after he was convicted for criminal mischief, a conviction that stemmed from a May 20,2016 arrest. Declaration of Joseph T. 16-18. On May 5, 2017, Galo filed a request for humanitarian parole, which was denied on June 2, 2017. Pujol Decl. ,, 23,

25. Galo's removal hearing has been adjourned several times to enable him to obtain counsel and undergo psychiatric evaluations in support of his asylum application. Galo had master calendar hearings on February 10, March 6, March 29, and May 10 ofthis year. Galo's next calendar date is July 12, 2017. Pujol Decl. 20-26.

As of June 7, 2017, Galo has been detained for six months.

LEGAL FRAMEWORK

Section 1226(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c), provides that the government shall detain any alien who has been convicted of certain crimes, such as crimes involving drugs and multiple crimes involving moral turpitude. Section 1226(c) applies to all aliens, including those with LPR status. In Lora v. Shanahan, 804 F.3d 601 (2d

Cir. 20 15), the Second Circuit held that in order to avoid the constitutional concerns raised by indefinite detention, individuals detained pursuant to Section 1226(c) "must be afforded a bail hearing before an immigration judge within six months of his or her detention." 804 F .3d at 616.

Lora further held that "the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." ld

Section 1225(b)(2)(A), by contrast, is relevant only to aliens who are applying for admission to the United States. Section 1225(b)(2)(A) provides that "in the case of an alien who

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is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal proceeding]." 8 U.S.C. § 1225(b)(2)(A). Individuals detained or otherwise subject to this provision are classified as "arriving aliens." See 8 C.F .R. § 1001.1

("The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry.").

As a general matter, LPRs reentering the United States are not considered arriving aliens and thus cannot be detained pursuant to Section 1225(b). See 8 U.S.C. § 1101(a)(l3)(C)

("An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws[.]").

However, under certain circumstances- including where the LPR has been convicted of a crime involving moral turpitude the government may properly designate an LPR as an arriving alien.

See 8 U.S.C. § 1101(a)(13)(C)(v).

DISCUSSION The issue I must resolve is whether the Second Circuit's holding in Lora, 804

F.3d 601, which requires aliens detained pursuant to Section 1226(c) to receive a bond hearing within six months of their detention, should be extended to LPRs who, upon returning from a brief trip abroad, are designated as an arriving alien and detained pursuant to Section 1225(b)(2).

Neither the Second Circuit nor the Supreme Court has addressed this issue, although it is currently pending before both courts.

There is an emerging consensus among courts in this district that due process requires that individuals detained pursuant to Section 1225(b) be provided an individualized bond hearing within six months of their detention. See Arias v. Aviles, 2016 WL 3906738, at

*10 (S.D.N.Y. July 14, 2016) (Abrams, J.) ("As this Court is persuaded that Petitioner is entitled to the same level of due process protection afforded to LPRs continuously residing in the United

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States, the Second Circuit's decision in Lora dictates that the Court interpret 8 U.S.C. §

1225(b)(2)(A) to include a reasonable temporal limitation of six months on his detention so as to avoid serious constitutional concerns."); Ricketts v. Simonse, 2016 WL 7335675, at* 1 (S.D.N.Y.

Dec. 16, 2016) (Schofield, J.) ("Petitioner is entitled to an individualized bond hearing because his prolonged detention pursuant to 8 U.S.C. § 1225(b)(2) violates his Fifth Amendment right to due process."); Heredia v. Shanahan, 2017 WL 1169645, at *5 (S.D.N.Y. Mar. 28, 2017)

(Wood, J.) ("The Court is persuaded by the reasoning of Ricketts and Arias: the Court can find no basis to distinguish a LPR detained before a removal hearing pursuant to§ 1226(c) who is entitled to a bail hearing within six months, Lora, 804 F.3d at 616, and a LPR detained pursuant to§ 1225(b)."); Morris v. Decker, 2017 WL 1968314, at *3 (S.D.N.Y. May 11, 2017) (Caproni,

J.) (''As in Arias, this Court concludes that an LPR absent from the United States for approximately one week possesses the same due process rights at the border as those enjoyed by an LPR continuously present within the United States. And, as in Arias, to avoid constitutional concerns, section 1225(b) must be read to include a six-month limitation on the length of detention of an LPR without an individualized bond hearing.").

Two courts in this district have held that aliens detained pursuant to Section

1225(b) are not entitled to a bond hearing. See Cardona v. Nalls-Castillo, 177 F. Supp. 3d 815

(S.D.N.Y. 2016) (Scheindlin, J.); Perez v. Aviles, 188 F. Supp. 3d 328 (S.D.N.Y. 2016) (Keenan,

J.). The statutory and constitutional analysis in both of these opinions, however, was cursory, and neither opinion meaningfully considered relevant Supreme Court jurisprudence.

Respondents argue that because Galo was designated as an "arriving alien" and was detained pursuant to Section 1225(b) instead of Section 1226(c), he is not entitled to the same level of due process as LPRs who never leave the country. This argument fails. Whether

Galo was detained pursuant to Section 1225(b) or Section 1226(c) is irrelevant to the question of how much due process he should be afforded, for LPRs such as Galo, who return to the United

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States after a brieftrip abroad, are entitled to the same due process rights as if they had never left the country. In Kwong Hai Chew v. Co/ding, 344 U.S. 590 (1953), the Supreme Court held that the constitutional rights of a permanent resident alien who had traveled abroad for four months should be assessed as if he had "not undertaken his voyage to foreign ports but had remained continuously within the territorial boundaries of the United States." Accordingly, the Supreme

Court explained that "[ f]or purposes of his constitutional right to due process, we assimilate petitioner's status to that of an alien continuously residing and physically present in the United

States." 344 U.S. at 596; see also Landon v. Plasencia, 459 U.S. 21,31 (1982) (citing Chew for the proposition that "a resident alien returning from a brief trip has a right to due process just as would a continuously present resident alien.").

Consequently, there is no substantive basis to distinguish the facts of this case from those of Lora. Galo, like the petitioner in Lora, is an LPR. Galo, like the petitioner in

Lora, has been convicted of crimes that can serve as the basis for removal. Had Galo never gone abroad, he would have been detained under Section 1226(c) and been entitled to a bond hearing under Lora. The basis of Galo 's removal- prior convictions for crimes involving moral turpitude would have been the same regardless of whether he was detained under Section

1225(b) or Section 1226(c). Galo did not lose his due process rights merely by traveling abroad as an LPR. If that were the case, individuals with no legal status residing in the United States would be afforded greater due process rights than individuals with LPR status who briefly travel abroad.

To comport with the reasoning and principles set out in the Second Circuit's decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), to avoid the constitutional concerns raised by the prospect of indefinite detention, and to protect the due process rights of LPRs, I join numerous other courts in this district and hold that Galo, who has been detained for more than six months, is immediately entitled to an individualized bond hearing at which the

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government bears the burden to establish by clear and convincing evidence that Galo poses a risk of flight or risk of danger to the community.

CONCLUSION

For the reasons stated herein, the petition is granted. Respondents must provide

Galo with an individualized bond hearing within two weeks ofthis order. At that bond hearing, respondents shall bear the burden of showing, by clear and convincing evidence, that Galo is a flight risk or a danger to the community. The oral argument currently scheduled for July 5, 2017 is canceled. The Clerk shall mark the case closed.

SO ORDERED.

Dated: J 20 17 New York ALVIN K. HELLERSTEIN United States District Judge

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EXHIBIT F CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 184 50 ofof 127371 1 H8O9JACC

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------x

3 LUCKNER JACQUES ,

4 Plaintiff,

5 v. 17 CV 2040 (KPF)

6 THOMAS DECKER, ET AL.,

7 Defendants.

8 ------x

9 SALVADOR GOMES LINDOR,

10 Plaintiff,

11 v. 17 CV 2118 (KPF)

12 THOMAS DECKER, ET AL.,

13 Defendants.

14 ------x

15 New York, N.Y. August 24, 2017 16 11:16 a.m.

17 Before:

18 HON. KATHERINE POLK FAILLA

19 District Judge

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 185 51 ofof 127371 66 H8O9JACC

1 MS. DERI-OSHIRO: Your Honor.

2 THE COURT: Yes. And it better be very quick.

3 MS. DERI-OSHIRO: It is quick. I just want it to be

4 clear that it is more than Judge Caproni in this district who

5 has extended Lora to non-LPRs.

6 THE COURT: I am aware. She is the case that I looked

7 at most recently on this issue. I wasn't meaning to be

8 definitive in my listing. Let's please begin.

9 I'm going to begin with Mr. Lindor simply because that

10 was the first case that I discussed. And on that issue, after

11 thinking about this for a large chunk of last night, I'm going

12 to stay the case and let me explain why.

13 The record that I have before me suggests that this

14 appeal is untimely and it appears to be a day late. I'm not

15 prepared at this time -- and I don't think I would ever be

16 asked to allocate fault as between counsel and the immigration

17 judge. Today on the record that I have, I am not accepting the

18 argument that the immigration judge somehow has the ability to

19 extend the time for appeal. I accept the differences or the

20 nuances that were called to my attention by Mr. Copeland

21 regarding the statute which was as to -- and its specific

22 reference to asylum applicants and regulations that may or may

23 not apply in other cases. But, I don't believe that the

24 immigration judge had the right to extend the time for an

25 appeal.

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 186 52 ofof 127371 67 H8O9JACC

1 So let me spend a little bit of time talking about the

2 argument that I actually thought was advanced very well by

3 Mr. Copeland, especially given the very short time period he

4 had to advance it, but this argument that inasmuch as the BIA

5 has not deemed the appeal untimely, that we are in a position

6 where I may go forward making the determination as to whether a

7 bond hearing is appropriate, and that's actually what I've

8 spent most of the time in the back thinking about, but

9 ultimately I do not believe that I can. I know that I reacted

10 with surprise, and then mock horror, and then just a lot of

11 discussion. But thinking about it, now that I've had a chance

12 to digest it and think about it, I just don't believe that I

13 can do this because I do agree with Mr. Waterman: If I have

14 made or if I am finding, as on this record I am, that this

15 appeal -- this notice of appeal was filed a day late, I know

16 that that puts the case into the realm of 1231. And I, as I

17 read the law, I do think it is untimely and, therefore, I

18 believe that we are in the 90-day period specified by 1231. I

19 don't need the BIA to tell me that the relevant provision is

20 1231. And I don't think that they would be the last word on

21 that issue. I think instead -- let me be clear what I'm

22 saying -- the BIA can tell me that it's going to certify the

23 appeal and that I no longer have to worry about 1231. But

24 right now the default is that we're in 1231.

25 That said, I don't want to have an indefinite period

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1 of stay. What I want to do is this. As I was hinting at with

2 the parties, but I make no promises, especially on the facts of

3 this case, about my arithmetic abilities, I believe the 90-day

4 period expires on the 21st of September. It may be the

5 20th. It may be the 22nd. But I believe it expires on the

6 21st of September.

7 I would like submissions from the parties in the

8 Lindor matter on the 14th of September on anything you'd like

9 me to know. Really what I mean by that is I want to have a

10 sense of what I called, just for shorthand, the extension

11 detention, the additional reasonable time period. I want to

12 understand whether that is affected in any way by anything that

13 may be going on in Mr. Lindor's case at that time. Perhaps

14 there may be a motion to the Second Circuit. Because the way

15 I'm seeing it, if they don't certify the appeal, then I presume

16 Mr. Lindor is taking an appeal to the Second Circuit. And it

17 may be that at that point the Second Circuit has the right to

18 do certain things and to enter certain stays that I may not

19 have the right to. And that may, in turn, impact what I may do

20 on this petition.

21 I want to be clear, and I think I am being clear, that

22 I'm only right now going out the 90 days. Once we get to day

23 91, I want to think very seriously about whether cases like

24 Guerra, and that is a 2016 decision, 831 F.3d -- I think it's

25 56 -- 58 -- but cases like that which talk about how

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1 proceedings or orders imposed by the Second Circuit might end

2 up moving the focus of an alien's application from 1231 back to

3 1226. And so that's what I want to hear from the parties on.

4 And, also, I want to understand whether Lora naturally

5 extends to the extension detention portion of 1231, if it

6 hasn't moved to 1226.

7 And I'd like to know -- I've given you the date of the

8 14th of September but let's be clear. If something happens

9 tomorrow or next week with respect to the application for an

10 appeal to the BIA, let me know. I mean I'm giving you an

11 outside date because I don't want this case to get lost. But

12 there may be instances in which something happens sooner that

13 has import to this analysis, and you should tell me. And then

14 we can come back in again and discuss this.

15 But I would really like to understand what's going on

16 in mid September. But for now I do think that my ability to

17 issue or to order a bond hearing is constrained by 1231(a) and

18 therefore I'm going to stay the case rather than deny the

19 petition outright or something along those lines. And I don't

20 think it is appropriate for me to try and get something in

21 before the BIA figures out that I have.

22 Let me please then turn to the Lindor matter. And if

23 the parties wish me to, certainly as to the Lindor matter, I

24 can recite the facts of the case but I really don't think that

25 is necessary. I think you all know the situation. I am now

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1 aware that he has spent more than 300 days in detention and

2 that there are, despite everyone's best efforts, I presume

3 including the IJ, he still has not completed his proceedings.

4 There was substantial discussion from both

5 Mr. Hamilton and Ms. Clark regarding whether this is properly

6 viewed under 1225 or -- 1225(b), excuse me, or 1226(a). And I

7 think there is merit, and I think there is traction in the

8 argument that Ms. Clark made that under 1225(b)(1)(B)(iii)(IV)

9 the language "pending... until removed" would seem to be

10 superfluous unless the statute was read in tandem with 1226.

11 But I don't believe that I have to get to that point. I

12 believe, instead, that I can decide this as a matter of due

13 process. And following the majority of other judges,

14 colleagues of mine, in this district, I believe that a bond

15 hearing is warranted and I'm going to order that it take place.

16 I have looked at many, many cases called to my

17 attention by the parties. But most recently I have seen the

18 cases that were called to my attention by counsel, I think in

19 the Lindor case, earlier in the week from Judge Caproni and

20 from Judge Broderick. Judge Caproni has, as well, the Osias

21 case that I have seen. Judge Abrams has the Saleem case. And

22 with appropriate deference to the executive body branch of

23 government and their authority with respect to matters of

24 immigration, I can't come up with an intellectually honest

25 reason why individuals who are criminal aliens have the

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1 protections that are embodied in Lora and folks in Mr. Jacques'

2 position who, on some level perhaps, are in a better -- have a

3 better claim to a bond hearing are not given one.

4 And so, again, adopting the reasoning of cases, I

5 guess, there's the clear Clerjuste case from Judge Broderick;

6 Osias we've spoken about; Saleem we've spoken about. Let me

7 see if there are other cases. No. Those are the ones on which

8 I am relying on most heavily, though I recognize there are

9 others.

10 I am finding that at this stage, three hundred plus

11 days into his detention, it is appropriate that Mr. Jacques

12 receive a bond hearing. I'm going to order that one take

13 place, pursuant to the standards embodied in the Lora decision,

14 in three weeks. And, therefore, I am granting the petition in

15 Jacques.

16 Now, I was not as detailed as I could have been. If

17 the parties would like me to get into the standards, I can. My

18 sense is that both sides have an understanding of the law in

19 this case and of the facts of this particular case and that's,

20 since there was not -- there was no disagreement on the

21 underlying facts, just simply the legal import of them, I think

22 that what I've said is enough. But if either side wants me to

23 provide more detail, please let me know.

24 All right. Hearing nothing.

25 I am granting the petition in Jacques, and I'll issue

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1 an order later in the day to that effect.

2 I am staying the case in Lindor. I will issue an

3 order later in the day to that effect.

4 And that I believe that resolves the matters that are

5 before me but if there's something I've omitted please let me

6 know.

7 Mr. Hamilton.

8 MR. HAMILTON: No, your Honor.

9 THE COURT: Thank you very much.

10 Ms. Clark.

11 MS. CLARK: No, your Honor.

12 THE COURT: Mr. Waterman.

13 MR. WATERMAN: No, your Honor.

14 THE COURT: Thank you all very much.

15 Again, thank you for your work and for your

16 commitment. I've really, really appreciated it. I've learned

17 a lot, which is a great thing I can say as a judge.

18 Thanks again. We are adjourned.

19 (Adjourned)

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EXHIBIT G CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 193 59 ofof 127371 1 H5PKSAMM

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------x

3 GABRAL SAMMY,

4 Petitioner,

5 v. 17 CV 2615 (PAE)

6 THOMAS DECKER, et al.,

7 Respondents.

8 ------x New York, N.Y. 9 May 25, 2017 3:10 p.m. 10 Before: 11 HON. PAUL A. ENGELMAYER, 12 District Judge 13 APPEARANCES 14 THE BRONX DEFENDERS 15 Attorneys for Petitioner PAIGE AUSTIN 16 JOON H. KIM, 17 Acting United States Attorney for the Southern District of New York 18 BRANDON M. WATERMAN Assistant United States Attorney 19

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1 arguments here. I think I'll be ready in 40 minutes or so to

2 rule from the bench. So, I'll ask you to come back at 4:40 and

3 I will have a decision at that point to read.

4 MR. WATERMAN: Thank you, your Honor.

5 MS. AUSTIN: Thank you, your Honor.

6 (Recess)

7 THE COURT: The Court held a hearing today on Gabral

8 Sammy's petition for a writ of habeas corpus. At the outset,

9 let me thank counsel for being so well prepared and helpful

10 today in response to my various questions. And thank you, too,

11 for your effective written advocacy.

12 Mr. Sammy is seeking a bond hearing to adjudicate

13 whether he must be detained by the United States Immigration

14 and Customs Enforcement (ICE) while his applications for asylum

15 and withholding of removal are being resolved. He would like

16 an immigration judge, or IJ, to determine whether he is a risk

17 of flight or danger to the community so as to justify his

18 continued detention.

19 I am now going to read a bench decision resolving that

20 claim. For your planning purposes, I do not intend to issue a

21 written decision. There will simply be a bottom-line order

22 that incorporates by reference the Court's opinion from the

23 bench. Therefore, if the content of what I say is significant

24 to counsel, you will need to obtain the transcript.

25 I will start by summarizing the key facts of this

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1 petition, all of which I understand to be undisputed.

2 On April 11, 2017, Mr. Sammy filed a petition for writ

3 of habeas corpus under 28, U.S.C., Section 2241. He challenges

4 his continued detention by ICE without an individualized bond

5 hearing.

6 Mr. Sammy is a native of the United Kingdom and a

7 citizen of Ethiopia. He originally entered the United States

8 in 1997, when he was five years old, on a P4 athlete's visa,

9 which he obtained through his father, who was a professional

10 boxer. Mr. Sammy overstayed this visa but was later, in

11 March 1997, granted derivative asylum through his mother. On

12 June 15, 2006, he became a lawful permanent resident, or LPR,

13 of the United States.

14 Starting roughly in 2010, Mr. Sammy has developed a

15 criminal record which grew to contain more than 30 arrests and

16 at least 11 convictions. Most relevant here are two

17 convictions. In January 2012, he was convicted in Virginia

18 state court of petty larceny, for which he received a 90-day

19 prison sentence. In February 2013, he was convicted of felony

20 malicious wounding, also in Virginia state court, for which he

21 received a sentence of six years' imprisonment, all of which

22 was suspended except one year and nine months, plus five years

23 of probation.

24 On June 20, 2014, on the basis of these convictions,

25 Mr. Sammy was arrested by ICE and placed in removal proceedings

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1 in Arlington, Virginia. On July 10, 2014, an immigration

2 judge, after a hearing, ordered Mr. Sammy removed to the United

3 Kingdom. However, the government was not able to obtain the

4 necessary documents for Mr. Sammy to be removed to the United

5 Kingdom. The government therefore switched gears. Because

6 Mr. Sammy's parents were citizens of Ethiopia at the time, the

7 government instead obtained an Ethiopian passport for him.

8 On March 9, 2015, Mr. Sammy was removed to Ethiopia,

9 after spending 262 days in ICE detention.

10 On April 29, 2015, Mr. Sammy returned to the United

11 States. He attempted to reenter at John F. Kennedy Airport.

12 He requested admission as an LPR. Instead, he was arrested by

13 United States Customs and Border Protection and paroled into

14 the United States to be prosecuted for illegal reentry.

15 On May 26, 2015, Mr. Sammy was indicted for illegal

16 reentry in the United States District Court for the Eastern

17 District of New York. On June 22, 2016, Mr. Sammy entered into

18 a conditional guilty plea to that offense, in which he

19 preserved his right to appeal the denial of his motion to

20 dismiss that indictment. The basis for that challenge is that

21 his underlying criminal offense does not qualify as a crime of

22 violence under 18, U.S.C., Section 16(b). Mr. Sammy was

23 sentenced by the district court to time served. On

24 October 234, 2016, judgment in his criminal case was entered in

25 the Eastern District.

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1 On October 28, 2016, ICE took Mr. Sammy into its

2 custody. Thus began the period of ICE detention at issue here.

3 After being taken into custody, Mr. Sammy then sought asylum in

4 the United States. He claimed to fear persecution if he were

5 to be returned to Ethiopia. The basis for that claim was his

6 claim that he had been tortured while in Ethiopia by officials

7 who sought information about his mother's alleged

8 antigovernment activities.

9 On December 1, 2016, an asylum officer interviewed

10 Mr. Sammy about that claim. The officer concluded that

11 Mr. Sammy had a credible fear of persecution. This interview

12 produced a "credible fear work sheet" in which the asylum

13 officer documented his belief that Mr. Sammy was testifying

14 credibly as to his identity, his fear of harm in Ethiopia, and

15 the underlying facts and circumstances. Mr. Sammy at the time

16 was pro se.

17 The initial hearing in immigration court in

18 Mr. Sammy's case was held on February 1, 2017, at which point

19 he was assigned pro bono counsel. Mr. Sammy and his counsel

20 are pursuing his claim of asylum.

21 On April 11, 2017, Mr. Sammy appeared for his next

22 hearing in immigration court. He then filed applications for

23 asylum, withholding of removal, protection under the Convention

24 Against Torture, and cancelation of removal for certain

25 nonpermanent residents. Through counsel, Mr. Sammy requested a

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1 merits hearing that would address his asylum claim, among

2 others. That hearing is scheduled for July 11, 2017,

3 approximately two months from now.

4 Counsel today helpfully explained the process by which

5 such an asylum hearing would proceed, including the subjective

6 and objective elements that must be satisfied by an applicant

7 for asylum. Counsel explained that such hearings may be

8 confined to a single day or extend over multiple days,

9 sometimes spread over a period of months.

10 And the Court, resolving an alien's bid for asylum,

11 may rule from the bench or it may issue a written decision, and

12 such a decision could issue soon after the hearing or weeks or

13 months later. In other words, there is no assurance that the

14 immigration court will resolve Mr. Sammy's asylum claim on

15 July 21, 2017, or any time soon thereafter.

16 The issue in this proceeding is whether Mr. Sammy is

17 entitled by law to a bond hearing before an immigration judge

18 while his asylum application is litigated. As of today,

19 Mr. Sammy has been in ICE custody for a period of 210

20 consecutive days, or nearly seven months. And assuming no bond

21 hearing is granted, by the date of his next hearing on his

22 asylum application, July 21, 2017, he will have spent at least

23 eight months and 28 days in detention without a bond hearing,

24 with the prospect of continued detention, depending on how long

25 the asylum litigation plays out.

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1 In his petition, Mr. Sammy raises statutory and

2 constitutional challenges to his detention for such periods

3 without such a hearing. He makes three distinct legal

4 arguments:

5 First, he argues that his detention is properly

6 governed not by 8, U.S.C., Section 1225(b), the provision

7 applicable to aliens detained at the border, as the government

8 claims, but by a different provision, 8, U.S.C., Section

9 1226(a), under which he asserts a bond hearing is due under

10 settled law after six months of detention.

11 Second, he argues that even if his detention is

12 governed by Section 1225(b), then that provision must be read,

13 under the canon of constitutional avoidance, to contain an

14 implied time limitation of six months before a bail hearing is

15 required in order to avoid constitutional due process issues.

16 Third, he argues, as a matter of constitutional law,

17 that, at least as applied to his case, his detention without a

18 bond hearing would violate Mr. Sammy's rights to due process

19 under the Constitution.

20 I will first address Mr. Sammy's statutory argument.

21 The issue here is whether Section 1225(b) applies because

22 Mr. Sammy was stopped at the border. I note that even though

23 Mr. Sammy was later prosecuted and convicted in the Eastern

24 District of New York, he is still treated for legal purposes as

25 if he were still at the border. That is based on what is

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1 called the "entry fiction" doctrine. Under it, an alien

2 seeking admission into the United States may be physically

3 permitted to enter, or "paroled," within the United States

4 border, pending a determination of the alien's admissibility to

5 the United States but the alien is nonetheless legally treated

6 as having never effected entry into the country. See

7 Shaughnessy versus United States, ex rel. Mezei, 345 U.S. 206

8 (1953).

9 In brief, Mr. Sammy asserts that his detention is

10 properly governed by 8, U.S.C., Section 1226(a) instead of

11 Section 1225(b). Section 1226(a) is a discretionary detention

12 statute. It authorizes the United States to detain an alien

13 found in the United States, as opposed to at the border,

14 pending the decision on whether to remove the alien from the

15 United States.

16 Section 1225(b), in contrast, governs "arriving

17 aliens," aliens who arrive at the United States border seeking

18 admission. The government treats Mr. Sammy's application as

19 governed by that section. Specifically, because Mr. Sammy

20 sought admission on the basis of a fear of persecution and

21 because an asylum officer determined after an initial showing

22 that Mr. Sammy's fear of persecution was credible, Mr. Sammy's

23 detention was then governed by Section 1225(b)(1)(B)(ii). That

24 section, again applicable to aliens seize add the border, reads

25 as follows: "If the officer determines at the time of the

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1 interview that an alien has a credible fear of

2 persecution...the alien shall be detained for further

3 consideration of the application for asylum."

4 Mr. Sammy argues, however, that authority to detain

5 him under that section, Section 1225(b)(1)(B)(ii), lapsed once

6 his asylum proceedings began. He argues that that provision

7 reflects congressional intent that it apply only up until the

8 commencement of proceedings before an immigration judge, that

9 is, until there has been "further consideration of the

10 application for asylum." Thereafter, Mr. Sammy argues, the

11 statute that governs the alien's detention becomes Section

12 1226(a).

13 Mr. Sammy bases this interpretation, in part, on

14 contrasting the language in this provision with the language of

15 the provision governing asylum seekers who do not pass the

16 credible fear of persecution portion of the asylum application

17 process. The language used there, in 8, U.S.C., Section

18 1225(b)(1)(B)(ii)(IV), a provision entitled "Mandatory

19 Detention," is that such an alien "shall be detained pending a

20 final determination of credible fear of persecution and, if

21 found not to have such a fear, until removed."

22 Mr. Sammy argues that this textual difference means

23 that an alien who, like he, has passed the initial

24 credible-fear evaluation in seeking asylum, is governed by

25 Section 1226(a). And Mr. Sammy argues, for an alien who has

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1 been detained under Section 1226(a), there is case support for

2 a bond hearing after six months of detention.

3 On this argument, the Court holds with the government.

4 The Court rejects Mr. Sammy's statutory construction.

5 Mr. Sammy's detention is squarely governed by Section 1225(b).

6 The statute clearly covers aliens who, like Mr. Sammy, arrive

7 in the United States at the U.S. border and seek admission

8 based on a fear of persecution. Indeed, Section 1225(b)

9 provides a detailed scheme for the detention of aliens who seek

10 such admission, and Section 1225(b), not Section 1226, sets out

11 the different procedures governing aliens apprehended at the

12 border who do and who do not meet the initial threshold showing

13 of a credible fear of persecution.

14 The text on which Mr. Sammy seizes simply does not

15 state or support that an alien whose asylum claim clears the

16 initial threshold of a credible-fear determination is then

17 toggled over to, and governed by, a different provision in

18 Title 8, including the one for which Mr. Sammy advocates.

19 The Court then turns to Mr. Sammy's next argument,

20 under Section 1225(b) based on principles of constitutional

21 avoidance. He argues that that canon requires that Section

22 1225(b) be read to entitle him to a bond hearing after a period

23 of six months' detention. Otherwise, he claims, there would be

24 significant risk that the provision would be found

25 unconstitutional.

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1 Mr. Sammy relies largely on the Second Circuit's

2 decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). In

3 Lora, the Second Circuit held that Section 1226(c), the

4 provision governing detention of criminal aliens, was textually

5 unclear as to the duration of authorized detention without a

6 bond hearing. The Court held that Section 1226(c) must be read

7 to contain an implicitly temporal limitation so as to avoid

8 what otherwise would be serious constitutional concerns

9 presented by indefinite detention.

10 The Lora court construed the statute, as a matter of

11 constitutional avoidance, to require a bond hearing after six

12 months of detention. In so holding, the Second Circuit drew

13 upon the decision in Zadvydas v. Davis, 533 U.S. 678 (2001).

14 There, the Supreme Court used the canon of constitutional

15 avoidance to hold that aliens ordered removed from the United

16 States under 8, U.S.C., Section 1231(a) were entitled to a bond

17 hearing once they had been held, pending removal, for more than

18 six months.

19 District courts faced with this issue have reached

20 different conclusions about whether to extend the principles

21 articulated in Lora to Section 1225(b) via the canon of

22 constitutional avoidance. Two judges have held with the

23 government. Judge Keenan, in Perez v. Aviles, 188 F.Supp.3d,

24 328 (S.D.N.Y. 2016) distinguished Lora as inapposite to aliens

25 apprehended at the border. And Judge Scheindlin, in Cardona

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1 versus Nalls-Castillo, 177 F.Supp.3d 815 (S.D.N.Y. 2016)

2 similarly found no statutory charter to require a bond hearing

3 for detentions pursuant to Section 1225(b). She limited the

4 logic of Lora to Section 1226(c).

5 In contrast, Judge Abrams, in two decisions, has held

6 that detention without a bond hearing is proper under 8,

7 U.S.C., Section 1225(b) for only six months, after which a bond

8 hearing must be held in the case. The first of those cases,

9 Arias versus Aviles, No. 15 CV 9249 (RA), 2016 WL 3906738, at 8

10 (S.D.N.Y. July 14, 2016) involved an LPR returning to the

11 country but detained as an arriving alien.

12 In the second case, Saleem versus Shanahan, No. 16 CV

13 808 (RA), 2016 WL 4435246, at page 5 (S.D.N.Y. August 22,

14 2016), Judge Abrams extended this construction to aliens

15 apprehended at the border under Section 1225(b) and who were

16 not LPRs. Several other judges, following Judge Abrams, have

17 applied the statute in the context of LPRs to require a bond

18 hearing after six months. They have reached this result using

19 the canon of constitutional avoidance, while noting the fact of

20 the alien's LPR status. These cases are Heredia versus

21 Shanahan, No. 16 CV 2024 (KMW), 2017 WL 1169645, at page 5

22 (S.D.N.Y. March 28, 2017); Ricketts versus Simonse, No. 16 CV

23 6662 (LGS), 2016 WL 7335675, at page 1 (S.D.N.Y. December 16,

24 2016), and Morris v. Decker, No. 17 CV 2224 (VEC), 2017 WL

25 1968314, at page 3 (S.D.N.Y. May 11, 2017).

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1 Like these judges, the Court's assessment at the

2 outset is that the statute is sufficiently ambiguous to justify

3 consideration of the canon of constitutional avoidance. As

4 Judge Abrams held, the text of Section 1225(b) does not clearly

5 state that indefinite detention without a bond hearing is

6 authorized, any more than the text of Section 1226(c), that was

7 at issue in Lora, clearly resolved that issue. In each case,

8 the statute was silent on that point. And the particular

9 provision at issue in Mr. Sammy's case, Section

10 1225(b)(1)(B)(ii), introduces a separate ambiguity. It

11 provides that "the alien shall be detained for further

12 consideration of the application for asylum." That provision

13 does not clearly state what exactly is meant by "further

14 consideration."

15 Although the Court is prepared to conclude that this

16 provision is most logically read to authorize detention through

17 the conclusion of asylum proceedings, as opposed to the initial

18 point of consideration of an asylum application, this provision

19 does not speak at all to whether or at what point in the asylum

20 process a bond hearing would be required. The provision is

21 simply silent on that point.

22 As to whether imputing a six-month temporal limitation

23 on detention without a hearing is required as a matter of

24 constitutional avoidance, the Court's conclusion, after

25 considered review, is that Judge Abrams' construction of the

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1 statute, based on that canon, is persuasive. The Court adopts

2 in full her decision holding that principles of constitutional

3 avoidance require reading a six-month temporal limitation into

4 Section 1225(b). After that point, a bond hearing must be held

5 for aliens detained under the authority of that statute.

6 As Judge Abrams explained in Arias, the logic of the

7 holding in Lora logically extends to an alien held under

8 Section 1225(b), and all the more so under Section

9 1225(b)(1)(B)(ii), where potentially lengthy asylum proceedings

10 are under way. In Lora, the Second Circuit had held that, as

11 to an alien who had been convicted of a crime, "mandatory

12 detention under Section 1226(c) is permissible but there must

13 be some procedural safeguard in place for immigrants detained

14 for months without a hearing." Lora, 804 F.3d at 614. As

15 Judge Abrams held in Arias, there is "no basis to distinguish

16 the constitutional protections" for aliens detained under

17 Section 1226(c) from those for aliens detained under Section

18 1225(b).

19 It is no answer to note that the alien in Arias was an

20 LPR or that the same was true in the cases resolved by Judges

21 Wood, Schofield and Caproni, cited above. In Saleem, Judge

22 Abrams extended the holding of Arias to non-LPR aliens seeking

23 admission and detained under Section 1225(b). And the nature

24 of the constitutional avoidance inquiry is that it is a tool of

25 statutory construction. As such, once the statute is construed

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 207 73 ofof 127371 50 H5PKSAMM

1 in a particular way, that is how it applies across the board,

2 even if in factually less sympathetic cases than those that

3 prompted the statute's narrowed construction. As Judge Abrams

4 put the point, it is not correct to "interpret 8, U.S.C.,

5 Section 1225(b)(2)(A) differently depending on which litigant

6 is before" the court. Otherwise, as she explained, "to

7 interpret the statute one way for lawful permanent residents

8 and another way for nonresident arriving aliens would render

9 the statute a chameleon, its meaning subject to change

10 depending on the presence or absence of constitutional concerns

11 in each individual case." Citing Saleem, 2016 WL 4435246, at

12 pages 4 to 5 (quoting Clark v. Martinez, 543 U.S. 371, at 382

13 (2005)).

14 This Court will add two points to Judge Abrams'

15 convincing analysis. The government's principal argument is

16 that Section 1225(b) applies to persons apprehended at the

17 border. But that geographic fact should not obscure the

18 breadth of persons covered by the statute. This case supplies

19 an excellent illustration of the point. It involves an alien

20 who had previously been an LPR and who had previously lived in

21 the United States for many years. And as the government

22 candidly proffered at today's hearing, it is conceivable that

23 Mr. Sammy's LPR status could be restored, depending on the

24 outcome of a pending Supreme Court case that may affect the

25 whether the underlying criminal offense that led to his removal

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1 is held to be or not to be a crime of violence under 18,

2 U.S.C., Section 16(b).

3 Second, the government argues that Mr. Sammy has

4 received constitutionally adequate due process permitting his

5 detention without a hearing because, on January 18, 2007, the

6 Attorney General, or, more precisely, her designee at ICE,

7 denied Mr. Sammy humanitarian parole under 8, U.S.C., Section

8 1182(d)(5)(A). The government argues that the parole

9 determination is sufficient process for an alien apprehended at

10 the border. But the parole mechanism is inadequate for two

11 reasons:

12 First, it is nonjudicial. It is an executive branch

13 determination made by the Department of Homeland Security. See

14 8, U.S.C., Section 1182. The parole decision is not made by a

15 neutral judicial arbiter;

16 Second, the standard governing parole is different.

17 Parole may only be granted for "urgent humanitarian reasons" or

18 "significant public benefit." That standard is not coextensive

19 with the standards for release governing a bond hearing.

20 Accordingly, the Court concludes that, as a matter of

21 statutory construction via the canon of constitutional

22 avoidance, Section 1225(b) requires that Mr. Sammy receive a

23 bond hearing, as he has now been held beyond the presumptively

24 reasonable limit of six months. The Court therefore grants

25 Mr. Sammy's petition.

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1 This concludes the Court's ruling. A bottom-line

2 order will issue shortly.

3 So, Counsel, if you need the transcript, I'm afraid

4 you'll need to order it, but it seemed to me, all things

5 considered, it was more important to get the decision out

6 promptly so that Mr. Sammy can proceed to a bond hearing rather

7 than polishing this as a full written decision.

8 With that, I thank you for your excellent advocacy.

9 And we stand adjourned.

10 * * *

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 10038-3 Filed Filed 12/07/18 09/25/17 Page Page 210 76 ofof 127371

EXHIBIT H CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-05809-PAE DocumentDocument Document 10038-3 8 Filed Filed 12/07/18 08/16/1709/25/17 Page Page 211 177 of ofof 3 127371

USDC SD:\'Y DOCUML:\T UNITED STATES DISTRICT COURT ELECTRO:\ I C.\ I U I I LED DISTRICT OF NEW YORK SOUTHERN DOC#: ___-= ------X DATE FILED: DUCASSE JEAN FRANCOIS, 17 Civ. 5809 (PAE) Petitioner, ORDER -v-

THOMAS DECKER, ELAINE DUKE, and JEFFERSON B. SESSIONS, in their official capacities,

Respondents.

------X

PAUL A. ENGELMA YER, District Judge:

In November 1991, petitioner Ducasse Jean Francois, a native and citizen of Haiti, left

Haiti by boat and, on November 22, 1991, was interdicted by the United States Coast Guard and

taken to the U.S. Naval Base at Guantanamo Bay, Cuba, where he requested asylum and,

following an interview by immigration officials, was determined to have a colorable claim to political asylum. He was then taken to Miami, Florida and paroled into the United States for purposes of pursuing an affirmative application for asylum. In December 1991, he filed such an application, but it appears unclear whether this application was ever adjudicated by immigration officials. In 2000, immigration officials began removal proceedings against Francois, but these proceedings were administratively closed in October 2000.

On July 21, 2016, officials from United States Immigration and Customs Enforcement

("ICE") arrested Francois. He has since been detained under 8 U.S.C. § 1225(b) as an arriving alien. Francois has sought reopening ofhis removal proceedings, and, on February 22, 2017, filed a new application for asylum. A hearing on the merits of that application is scheduled for CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-05809-PAE DocumentDocument Document 10038-3 8 Filed Filed 12/07/18 08/16/1709/25/17 Page Page 212 278 of ofof 3 127371

August 21, 2017 before an immigration judge. Francois requested release on parole, but ICE

denied that request.

Francois's petition seeks an individualized bond hearing before an immigration judge to

justify his continued detention. He contends that he is entitled to such a hearing under 8 U.S.C.

§ 1225(b) and that the denial of such a hearing after six months of detention violates due

process. 1

On May 25, 2017, the Court resolved in a bench decision a legally identical claim in the

case ofGabral Sammy v. Thomas Decker, et al., No. 17 Civ. 2615 (PAE) (S.D.N.Y. 2017). The

Court there granted the petition for a writ of habeas corpus. The Court held, based on principles

of constitutional avoidance, that 8 U.S.C. § 1225(b) is properly read to require, consistent with

due process, an individualized bond hearing for a petitioner detained pursuant to that provision

for more than six months. In an August 15, 2017letter, Dkt. 7, respondents, while noting their

disagreement with the Court's ruling in Sammy, have acknowledged that this case is not distinguishable from Sammy. Respondents propose that, to conserve resources and expedite

Francois's bond hearing, the Court summarily grant Francois's petition. The Court agrees that this approach is sound.

The Court accordingly grants Francois's petition, for the reasons set forth in the Court's bench ruling in Sammy. The Court orders respondents to provide Francois with an individualized bond hearing forthwith.

1 Francois also claims that he is not properly classified and detained as an "arriving alien," such that his detention is governed by 8 U.S.C. § 1226(a) instead of 8 U.S.C. § 1225(b). See Dkt. 1, Because the Court grants Francois's petition on the basis that 8 U.S.C. § 1225(b) requires an individualized bond hearing once a petitioner detained under that provision has been detained for greater than six months, the Court need not, and does not, reach this issue. 2 CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-05809-PAE DocumentDocument Document 10038-3 8 Filed Filed 12/07/18 08/16/1709/25/17 Page Page 213 379 of ofof 3 127371

The Clerk of Court is respectfully directed to enter judgment in favor of Francois, and to

close this case.

SO ORDERED.

United States District Judge

Dated: August 16, 2017 New York, New York

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------X : 8/23/2017 YVES NORD, : : Petitioner, : : 17-CV-3679 (VSB) -v- : : MEMORANDUM & ORDER THOMAS DECKER, et al., : : Respondents. : : ------X

Appearances:

Ellen Kathleen Pachnanda Brooklyn Defender Services Brooklyn, NY Counsel for Petitioner

Brandon M. Waterman Assistant United States Attorney For Joon H. Kim, Acting United States Attorney for the Southern District of New York New York, NY Counsel for Respondents

VERNON S. BRODERICK, United States District Judge:

Yves Nord (“Nord” or “Petitioner”), a native and citizen of Haiti, petitions for a writ of habeas corpus seeking an individualized bond hearing by the Department of Homeland Security

(“DHS”). He argues that the Second Circuit’s decision in Lora v. Shanahan, 804 F.3d 601 (2d

Cir. 2015), which held that criminally convicted immigrants awaiting removal cannot be detained for longer than six months without a bond hearing, extends to arriving aliens seeking asylum and placed in removal proceedings. I agree. See Clerjuste v. Decker, No. 17-CV-4252

(VSB) (S.D.N.Y. Aug. 12, 2017). For the reasons that follow, Nord’s petition is GRANTED and CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-03679-VSB DocumentDocument Document 10038-3 16 Filed FiledFiled 12/07/18 09/25/1708/23/17 Page PagePage 216 822 of ofof 9 127371

he must be promptly afforded an individualized bond hearing.

I. Factual and Procedural Background

Nord, a 32-year-old citizen of Haiti, fled Haiti to escape ongoing incidents of persecution committed against him by his former business partner, with the acquiescence of the Haitian government. (Pet. ¶ 22.)1 Nord hoped to seek refuge in the United States with his friend in

Santa Fe Springs, California. (Id.) Petitioner presented himself for inspection to a border official at the U.S.-Mexico border on November 14, 2016. (Id. ¶ 23.) Lacking documentation that would allow him entry into the United States, (see id. Exh. A), the U.S. Customs and Border

Protection (“CBP”) took him into custody. (Id. ¶ 23.) Petitioner was then transferred to the New

York area, where he was interviewed by a DHS asylum officer who determined that he presented a credible fear of persecution if he returned to Haiti. (Id. ¶ 24.) Thereafter, U.S. Immigration and Customs Enforcement (“ICE”) placed Petitioner into removal proceedings in New York.

(Id. ¶ 26.)

According to Petitioner’s Notice to Appear, the charging document used to commence removal proceedings, Nord is an “arriving alien” who passed the credible-fear screening. (Pet.

Exh. A.) He is purportedly being detained under 8 U.S.C. § 1225(b)(1)(B)(ii), which provides that “[i]f the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.”

Prior to retaining counsel, Petitioner submitted a parole request to ICE; that request was denied on January 18, 2017. (Pet. Exh. B.) According ICE, it determined that parole “was not appropriate at this time” because Nord had not established he was not a flight risk because he

1 “Pet.” refers to Nord’s Petition for Writ of Habeas Corpus. (Doc. 1.)

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“failed to provide, to ICE’s satisfaction, a valid U.S. address where [he] will reside while [his] immigration case is pending”, and that “imposition of a bond or other conditions of parole would not ensure, to ICE’s satisfaction, [his] appearance at required immigration hearings pending the outcome of [his] case.” Id.

Nord has been detained for over nine months. A hearing on the merits of his asylum petition is scheduled for August 28, 2017. (Pet. ¶ 6.)

On May 16, 2017, Nord filed his petition for a writ of habeas corpus in this Court, arguing that he should be entitled to a bond hearing.2 (Doc. 1.) On May 18, I issued an order referring the case to Magistrate Judge Kevin Fox for a report and recommendation. (Doc. 4.)

Pursuant to the parties’ proposal, Magistrate Judge Fox directed the Government to file a response brief by July 3, and Petitioner to file his reply by July 10. (Doc. 8.) In light of recent decisions in similar cases, including my August 12, 2017 Memorandum and Order in Clerjuste v.

Decker, No. 17-CV-4252 (VSB) (S.D.N.Y.), and to conserve judicial resources, I withdrew with the consent of the parties the reference to Judge Fox on August 21. (Doc. 15.)

II. Discussion

Petitioner makes two arguments: first, that he is being detained under 8 U.S.C. § 1226(a) rather than 8 U.S.C. § 1225(b), and second, that his detention since November 14, 2016 without an individualized bond hearing violates due process. Consistent with my August 12, 2017

Memorandum and Order in Clerjuste v. Decker, No. 17-CV-4252 (VSB) (S.D.N.Y.), I find that

Lora applies to Petitioner’s case and that he is entitled to an individualized bond hearing. In reaching this decision, I assume Nord is detained under 8 U.S.C. § 1225(b)(1)(B)(ii); therefore, I

2 This Court has jurisdiction over the Petition pursuant to 28 U.S.C. § 2241(c)(3). See Saleem v. Shanahan, No. 16- CV-808 (RA), 2016 WL 4435246, at *2 (S.D.N.Y. Aug. 22, 2016).

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need not decide whether he is being detained under 8 U.S.C. § 1226(a) rather than 8 U.S.C.

§ 1225(b).

In Lora, the Second Circuit held that “in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to [8 U.S.C. §] 1226(c) must be afforded

a bail hearing before an immigration judge within six months of his or her detention.” 804 F.3d

at 616. This “bright-line rule” was adopted “in order to avoid the constitutional concerns raised

by indefinite detention.” Id. The statute at issue in Lora was 8 U.S.C. § 1226(c), which requires

the DHS to detain aliens living within the United States who are convicted certain crimes.3

Petitioner argues that Lora should be extended to those detained under 8

U.S.C. § 1225(b), which governs “arriving aliens” seeking admission. Specifically, Petitioner is detained under § 1225(b)(1)(B)(ii), which imposes mandatory detention of arriving aliens seeking asylum who have presented “a credible fear of persecution.”4 Other arriving aliens who

3 8 U.S.C. § 1226(c)(1) states: The Attorney General shall take into custody any alien who-- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. 4 8 U.S.C. § 1225(b)(1) states: (B) Asylum interviews (i) Conduct by asylum officers An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General. (ii) Referral of certain aliens

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apply for admission who are “not clearly and beyond a doubt entitled to be admitted” are also

subject to mandatory detention. § 1225(b)(2)(a).5 In both cases, an alien applying for admission

may apply for discretionary parole in cases of “urgent humanitarian reasons” or “significant

public benefit.” 8 U.S.C. § 1182(d)(5)(A).

The Circuit has not had the opportunity to address the question of whether Lora applies

to § 1225(b). The majority of courts in this District have concluded that Lora must also apply to an arriving lawful permanent resident (“LPR”) detained under § 1225(b)(2)(A). See Morris v.

Decker, No. 17-CV-02224 (VEC), 2017 WL 1968314, at *3 (S.D.N.Y. May 11, 2017) (“This

Court joins Judge Abrams in holding that the same considerations that led the Second Circuit to limit section 1226(c) detention without a bond hearing to six months compel a similar result here. . . . [T]o avoid constitutional concerns, section 1225(b) must be read to include a six- month limitation on the length of detention of an LPR without an individualized bond hearing.”);

Heredia v. Shanahan, No. 16 Civ. 2024 (KMW), 2017 WL 1169645, at *5 (S.D.N.Y. Mar. 28,

2017) (“[T]he Court can find no basis to distinguish a LPR detained before a removal hearing pursuant to § 1226(c) who is entitled to a bail hearing within six months, Lora, 804 F.3d at 616, and a LPR detained pursuant to § 1225(b).”); Ricketts v. Simonse, No. 16 Civ. 6662 (LGS), 2016

WL 7335675, at *4 (S.D.N.Y. Dec. 16, 2016) (“[D]etention pursuant to § 1225(b) must be

If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum. 5 8 U.S.C. § 1225(b) states: (2) Inspection of other aliens (A) In general Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.

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construed to contain a reasonableness limitation of six months.”); Arias v. Aviles, No. 15-CV-

9249 (RA), 2016 WL 3906738, at *10 (S.D.N.Y. July 14, 2016) (“[T]he Second Circuit’s

decision in Lora dictates that the Court interpret 8 U.S.C. § 1225(b)(2)(A) to include a

reasonable temporal limitation of six months on . . . detention so as to avoid serious

constitutional concerns.”). But see Cardona v. Nalls-Castillo, 177 F. Supp. 3d 815, 816

(S.D.N.Y. 2016) (concluding without analysis that Lora “does not extend to individuals detained

under Section 1225(b)”); Perez v. Aviles, 188 F. Supp. 3d 328, 332 (S.D.N.Y. 2016) (holding

that LPR detained under § 1225(b) not entitled to individualized bond hearing).

Petitioner is not an LPR, and unlike the petitioners in Arias, Morris, Ricketts, and

Heredia, he is an asylum seeker and detained pursuant to § 1225(b)(1)(B)(ii), rather than

§ 1225(b)(2)(A), (see Doc. 14 at 2). The question therefore is whether Lora’s six-month

limitation on detention absent an individualized bond hearing extends to nonresident arriving

aliens seeking asylum. Consistent with my August 12, 2017 Memorandum and Order in

Clerjuste v. Decker, No. 17-CV-4252 (VSB) (S.D.N.Y.), I conclude that it does.

As stated above, in Arias v. Aviles, Judge Abrams concluded that the six-month Lora

limitation applies to arriving LPRs detained under § 1225(b)(2)(A). 2016 WL 3906738, at *10.

Judge Abrams then extended that reasoning in a subsequent case before her to a nonresident

arriving alien detained pursuant to § 1225(b)(2)(A) because to hold otherwise would improperly

construe the same immigration detention statute differently depending on the detained alien’s

immigration status. Saleem v. Shanahan, 16-CV-808 (RA), 2016 WL 4435246, at *4-5

(S.D.N.Y. Aug. 22, 2016) (“To interpret the statute one way for LPRs and another way for non-

resident arriving aliens ‘would render [the] statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.’”

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(quoting Clark v. Martinez, 543 U.S. 371, 382 (2005))). Likewise, Judges Caproni and

Engelmayer recently held that Lora’s sixth-month limitation extends to asylum-seekers detained pursuant to § 1225(b)(1)(B)(ii), like Petitioner here. See Osias v. Decker, No. 17-CV-02786,

2017 WL 3242332, at *5 (S.D.N.Y. July 28, 2017); May 25, 2017 Transcript at 48-51, Sammy v.

Decker, No. 17 CV 2615 (PAE) (S.D.N.Y.), ECF No. 16 (adopting Judge Abrams’s analysis in

Arias and Saleem). I find the reasoning in these cases persuasive.

The Government’s principal argument is that nonresident aliens arriving at the border have fewer constitutional protections than those present in the United States, citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. . . . But an alien on the threshold of initial entry stands on a different footing: Whatever the procedure authorized by

Congress is, it is due process as far as an alien denied entry is concerned.”). Mezei did not hold and the Government does not argue that nonresident aliens arriving at the border have no constitutional rights. In any event, as Judge Caproni explained, “Mezei is inapposite because the statutory scheme considered in Mezei is no longer in force and effect; the category of ‘excludable aliens’ that was considered in Mezei was eliminated by the passage of the [Illegal Immigration and Immigrant Responsibility Act].” Osias, 2017 WL 3242332, at *5 (citing Rodriguez v.

Robbins, 715 F.3d 1127 (9th Cir. 2013)). Moreover, “the fact that Petitioner is not an LPR does not save the statute from its unconstitutional implications, for the same statute must be construed similarly as applied to all categories of immigrants captured under the statute.” Id. (citing

Saleem, 2016 WL 4435246, at *4). As such, I agree with Judge Caproni that “the detention of an asylum-seeker such as Petitioner pursuant to Section 1125(b)(1)(B)(ii) for longer than six months

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without an individualized bond hearing violates due process.” Id.

The parole process provided by the Government is inadequate for the reasons stated by

Judge Engelmayer, namely because the parole determination is “not made by a neutral judicial

arbiter” and because the standard for granting parole—“urgent humanitarian reasons” or

“significant public benefit”—is “not coextensive with the standards for release governing a bond

hearing.” May 25, 2017 Hr’g Tr. at 51, Sammy v. Decker, 17 CV 2615 (PAE). However, ICE’s

concerns that Petitioner lacks a valid address in the United States and that conditions of parole

will not reasonably ensure Petitioner’s appearance at required immigration hearings, (see Pet.

Exh. B), will certainly be relevant to an immigration judge’s assessment of whether continued detention is appropriate, as will the fact that Petitioner is an arriving alien rather than an LPR.

Whether he is released on bond is of course at the discretion of the immigration judge who will

consider his application, but the Due Process Clause requires an individualized bond hearing to

justify Petitioner’s continued detention, which has now exceeded nine months. See Osias, 2017

WL 3242332, at *6 (“The Court . . . is not questioning the Government’s authority to detain

Petitioner; rather, the Court’s concern is with the length of Petitioner’s detention without an individualized bond hearing.”).

III. Conclusion

For the foregoing reasons, the Petition for a Writ of Habeas Corpus is GRANTED. On or before August 28, 2017, Respondents shall provide an individualized bond hearing to Petitioner to determine whether his detention is justified.

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The Clerk’s Office is respectfully directed to close the case.

SO ORDERED.

Dated: August 23, 2017 New York, New York

______Vernon S. Broderick VernonUnited States S. Brodericl< District Judge United States District Judge

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------X 8/12/2017 : FEDELSON CLERJUSTE, : : Petitioner, : : 17-CV-4252 (VSB) -v- : : MEMORANDUM & ORDER THOMAS DECKER, et al., : : Respondents. : : ------X

Appearances:

Zooey Jones Brooklyn Defender Services Brooklyn, NY Counsel for Petitioner

Brandon M. Waterman Assistant United States Attorney For Joon H. Kim, Acting United States Attorney for the Southern District of New York New York, NY Counsel for Respondents

VERNON S. BRODERICK, United States District Judge:

Fedelson Clerjuste (“Clerjuste” or “Petitioner”), a native and citizen of Haiti petitions for a writ of habeas corpus seeking an individualized bond hearing by the Department of Homeland

Security (“DHS”). He argues that the Second Circuit’s decision in Lora v. Shanahan, 804 F.3d

601 (2d Cir. 2015), which held that criminally convicted immigrants awaiting removal cannot be detained for longer than six months without a bond hearing, extends to arriving aliens seeking asylum and placed in removal proceedings. I agree. For the reasons that follow, Clerjuste’s petition is GRANTED and he must be promptly afforded an individualized bond hearing.

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I. Factual and Procedural Background

Clerjuste, a 29-year old citizen of Haiti, fled Haiti because the political activism

undertaken by him and his brother resulted in his brother’s murder and threats of violence

against Clerjuste by a rival political group. (Pet. ¶ 19.)1 He hoped to seek refuge in the United

States. Many of Clerjuste’s family members legally reside in the United States, including his

mother (a lawful permanent resident (“LPR”)), father (a recipient of Temporary Protected

Status), sister (United States citizen), and uncle (a LPR). (Id.) Clerjuste traveled from Haiti

through South and Central America and presented himself for inspection to a border official at

the U.S.-Mexico border on December 3, 2016. (Id. ¶ 20.) Lacking documentation that would

allow him entry into the United States, the U.S. Customs and Border Protection (“CBP”) took

him into custody. (Id.) Clerjuste was then transferred to the New York area, where he was

interviewed by a DHS asylum officer who determined that Clerjuste presented a credible fear of

persecution if he returned to Haiti. (Id. ¶ 21.) Thereafter, U.S. Immigration and Customs

Enforcement (“ICE”) placed him into removal proceedings in New York. (Id.)

According to Petitioner’s Notice to Appear, the charging document used to commence

removal proceedings, Clerjuste is an “arriving alien,” who passed the credible-fear screening.

(Pet. Exh. B.) He is purportedly being detained under 8 U.S.C. § 1225(b)(1)(B)(ii), which

provides that “[i]f the officer determines at the time of the interview that an alien has a credible

fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.”

In April and May 2017, Petitioner submitted a parole request to ICE; that request was denied on June 8, 2017. (Gov’t Return Exh. 2.)2 According ICE, it determined that parole “was

1 “Pet.” refers to Clerjuste’s Petition for Writ of Habeas Corpus. (Doc. 1.) 2 “Gov’t Return” refers to the Government’s Return to Habeas Petition. (Doc. 11.) 2

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not appropriate at this time” because Clerjuste had not established he was not a flight risk

because he “failed to provide, to ICE’s satisfaction a, valid U.S. address where [he] will reside

while [his] immigration case is pending”, and that “imposition of a bond or other conditions of

parole would not ensure, to ICE’s satisfaction, [his] appearance at required immigration hearings

pending the outcome of [his] case.” Id.

Clerjuste has been detained for over eight months. A hearing on the merits of his asylum

petition is scheduled for August 17, 2017. (Gov’t Return, Exh. 1.) This hearing was previously scheduled for June 28, 2017, (Pet. ¶ 3), “but that hearing did not go forward as planned because the date was miscalendared in the immigration court’s system,” (Gov’t Br. 4 n.3).3

On June 6, 2017, Clerjuste filed his petition for a writ of habeas corpus in this Court,

arguing that he should be entitled to a bond hearing.4 (Doc. 1.) By Order to Show Cause why

the Petition should not be granted, I directed the Government to file a response brief by June 19,

and Petitioner to file his reply by June 26. (Doc. 6.) On June 14, 2017, I granted the

Government’s request for an extension of time to respond to the Petition, taking into account the

Government’s representation that the Supreme Court was expected to soon issue a controlling

decision in Jennings v. Rodriguez, 15-1204. (See Doc. 9.) However, the Supreme Court did not

issue a decision, and instead held the case over for re-argument during the next term.5 (See

Gov’t Br. 3 n.2.) The Government filed its response brief on July 3, 2017, (Doc. 13), and

Petitioner filed his reply on July 7, 2017, (Doc. 14).

3 “Gov’t Br.” refers to the Government’s Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus. (Doc. 13.) 4 This Court has jurisdiction over the Petition pursuant to 28 U.S.C. § 2241(c)(3). See Saleem v. Shanahan, No. 16- CV-808 (RA), 2016 WL 4435246, at *2 (S.D.N.Y. Aug. 22, 2016). 5 The question before the Supreme Court is whether arriving aliens subject to mandatory detention pursuant to § 1225(b) must be given bond hearings where the detention exceeds six months. The Second Circuit has stayed its review of certain cases pending the outcome of the Supreme Court case. While I would ordinarily abstain from issuing a decision until there was further guidance from the Supreme Court or Second Circuit, the circumstances present here—namely, Petitioner’s ongoing detention and liberty interests at stake—warrant immediate review. 3

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II. Discussion

Petitioner makes two arguments: first, that he is being detained under 8 U.S.C. § 1226(a)

rather than 8 U.S.C. § 1225(b), and second, that his detention since December 3, 2016 without an

individualized bond hearing violates due process. I find that Lora applies to Petitioner’s case

and that he is entitled to an individualized bond hearing. In reaching this decision I assume

Clerjuste is detained under § 1225(b)(1)(B)(ii); therefore, I need not decide whether he is being

detained under 8 U.S.C. § 1226(a) rather than 8 U.S.C. § 1225(b).

In Lora, the Second Circuit held that “in order to avoid the constitutional concerns raised

by indefinite detention, an immigrant detained pursuant to [8 U.S.C. §] 1226(c) must be afforded

a bail hearing before an immigration judge within six months of his or her detention.” 804 F.3d

at 616. This “bright-line rule” was adopted “in order to avoid the constitutional concerns raised

by indefinite detention.” Id. The statute at issue in Lora was 8 U.S.C. § 1226(c), which requires

the DHS to detain aliens living within the United States who are convicted certain crimes.6

Petitioner argues that Lora should be extended to those detained under 8

6 8 U.S.C. § 1226(c)(1) states: The Attorney General shall take into custody any alien who-- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. 7 8 U.S.C. § 1225(b)(1) states: 4

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apply for admission who are “not clearly and beyond a doubt entitled to be admitted” are also

subject to mandatory detention. § 1225(b)(2)(a).8 In both cases, an alien applying for admission

may apply for discretionary parole in cases of “urgent humanitarian reasons” or “significant

public benefit.” 8 U.S.C. § 1182(d)(5)(A).

The Circuit has not had the opportunity to address the question of whether Lora applies

to § 1225(b). The majority of courts in this District have concluded that Lora must also apply to arriving LPRs detained under § 1225(b)(2)(A). See Morris v. Decker, No. 17-CV-02224 (VEC),

2017 WL 1968314, at *3 (S.D.N.Y. May 11, 2017) (“This Court joins Judge Abrams in holding that the same considerations that led the Second Circuit to limit section 1226(c) detention without a bond hearing to six months compel a similar result here. . . . [T]o avoid constitutional concerns, section 1225(b) must be read to include a six-month limitation on the length of detention of an LPR without an individualized bond hearing.”); Heredia v. Shanahan, No. 16

Civ. 2024 (KMW), 2017 WL 1169645, at *5 (S.D.N.Y. Mar. 28, 2017) (“[T]he Court can find no basis to distinguish a LPR detained before a removal hearing pursuant to § 1226(c) who is entitled to a bail hearing within six months, Lora, 804 F.3d at 616, and a LPR detained pursuant to § 1225(b).”); Ricketts v. Simonse, No. 16 Civ. 6662 (LGS), 2016 WL 7335675, at *4

(B) Asylum interviews (i) Conduct by asylum officers An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General. (ii) Referral of certain aliens If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum. 8 8 U.S.C. § 1225(b) states: (2) Inspection of other aliens (A) In general Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title. 5

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(S.D.N.Y. Dec. 16, 2016) (“[D]etention pursuant to § 1225(b) must be construed to contain a reasonableness limitation of six months.”); Arias v. Aviles, No. 15-CV-9249 (RA), 2016 WL

3906738, at *10 (S.D.N.Y. July 14, 2016) (“[T]he Second Circuit’s decision in Lora dictates that the Court interpret 8 U.S.C. § 1225(b)(2)(A) to include a reasonable temporal limitation of six months on . . . detention so as to avoid serious constitutional concerns.”). But see Cardona v.

Nalls-Castillo, No. 15-CV-9866 (SAS), 2016 WL 1553430 (S.D.N.Y. Apr. 14, 2016)

(concluding without analysis that Lora “does not extend to individuals detained under Section

1225(b)”); Perez v. Aviles, 188 F. Supp. 3d 328, 332 (S.D.N.Y. 2016) (holding that LPR detained under § 1225(b) not entitled to individualized bond hearing).

Petitioner is not an LPR. Unlike the petitioners in Arias, Morris, Ricketts, and Heredia, he is an asylum seeker and detained pursuant to § 1225(b)(1)(B)(ii), rather than § 1225(b)(2)(A).

The question therefore is whether Lora’s six-month limitation on detention absent an individualized bond hearing extends to nonresident arriving aliens seeking asylum. I conclude that it does.

As stated above, in Arias v. Aviles, Judge Abrams concluded that the six-month Lora limitation applies to arriving LPRs detained under § 1225(b)(2)(A). 2016 WL 3906738, at *10.

Judge Abrams then extended that reasoning to a nonresident arriving alien detained pursuant to

§ 1225(b)(2)(A) because to hold otherwise would improperly construe the same immigration detention statute differently depending on the detained alien’s immigration status. Saleem v.

Shanahan, 16-CV-808 (RA), 2016 WL 4435246, at *4-5 (S.D.N.Y. Aug. 22, 2016) (“To interpret the statute one way for LPRs and another way for non-resident arriving aliens ‘would render [the] statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.’” (quoting Clark v. Martinez, 543

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U.S. 371, 382 (2005)). Likewise, Judges Caproni and Engelmayer recently held that Lora’s sixth-month limitation extends to asylum-seekers detained pursuant to § 1225(b)(1)(B)(ii), like

Petitioner here. See Osias v. Decker, No. 17-CV-02786, 2017 WL 3242332 (S.D.N.Y. July 28,

2017); May 25, 2017 Transcript at 48-51, Sammy v. Decker, 17 CV 2615 (PAE) (S.D.N.Y.), ECF

No. 16 (adopting Judge Abrams’ analysis in Arias and Saleem). I find the reasoning in these cases persuasive.

Saleem, 2016 WL 4435246, at *4). As such, I agree with Judge Caproni that “the detention of an asylum-seeker such as Petitioner pursuant to Section 1125(b)(1)(B)(ii) for longer than six months

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without an individualized bond hearing violates due process.” Id.

The parole process provided by the Government is inadequate for the reasons stated by

Judge Engelmayer, namely because the parole determination is “not made by a neutral judicial arbiter” and because the standard for granting parole—“urgent humanitarian reasons” or

“significant public benefit”—is “not coextensive with the standards for release governing a bond hearing.” May 25, 2017 Transcript at 51, Sammy v. Decker, 17 CV 2615 (PAE). However,

ICE’s concerns that Petitioner lacks a valid address in the United States and that conditions of parole will not reasonably ensure Petitioner’s appearance at required immigration hearings, (see

Gov’t Return Exh. 2), will certainly be relevant to an immigration judge’s assessment of whether continued detention is appropriate, as will the fact that Petitioner is an arriving alien rather than an LPR. Whether he is released on bond is of course at the discretion of the immigration judge who will consider his application, but the Due Process Clause requires an individualized bond hearing to justify Petitioner’s continued detention, which has now exceeded eight months. See

Osias, 2017 WL 3242332, at *6 (“The Court . . . is not questioning the Government’s authority to detain Petitioner; rather, the Court’s concern is with the length of Petitioner’s detention without an individualized bond hearing.”).

III. Conclusion

For the foregoing reasons, the Petition for a Writ of Habeas Corpus is GRANTED. On or before August 17, 2017, Respondents shall provide an individualized bond hearing to Petitioner to determine whether his detention is justified.

The Clerk’s Office is respectfully directed to close the case.

SO ORDERED.

Dated: August 12, 2017 New York, New York

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EXHIBIT K CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-02419-RA DocumentDocument Document 38-3100 7 FiledFiled 12/07/1804/17/1709/25/17 PagePage 2341100 of of2of 371127 Case 1:17-cv-02419-RA Document 6-1 Filed 04/17/1]: H ll jj ·,, .,. . .· . , ; ., , ( UNITED STATES DISTRICT COURT ·. ;;_:·'· ..,.-,. i-"'l I \....:r: t-1:\>\:·I-LV :.. FI 1i.lcJ Ecn; U 1 SOUTHERN DISTRICT OF NEW YORK . ' ' ' \

RENALDO CELESTIN, 17 Civ. 2419 (RA)

Petitioner,

-against-

[PR6POrnl] THOMAS DECKER, eta!., ORDER Respondents.

RONNIE ABRAMS, United States District Judge:

Petitioner Renaldo Celestin has been detained by the U.S. Department of Homeland

Security since October 26,2016, under 8 U.S.C. § 1225(b). 1 He seeks a writ ofhabeas corpus pursuant to 28 U .S.C. § 2241, ordering Respondents to either release him or provide him with an individualized bond hearing. Having reviewed the parties' submissions, the petition is

GRANTED.

In Arias v. Aviles, No. 15 Civ. 9249 (RA), 2016 WL 3906738 (S.D.N.Y. July 14, 2016), this Court determined that the holding of Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), which requires that aliens convicted of certain crimes and detained during the pendency of their removal proceedings receive bond hearings within six months of their detention, should be extended to lawful permanent residents detained upon seeking reentry to the United States. In

Saleem v. Shanahan, No. 16 Civ. 808 (RA), 2016 WL 4435246 (S.D.N.Y. Aug. 22, 2016), this

1 Petitioner also argues that because he passed a credible fear interview, he is detained pursuant to 8 U.S.C. § 1226(a), not§ 1225(b). Respondents dispute this argument. The Court need not reach this question in light ofthe Court's determination that the disposition of this matter is controlled by this Court's decisions in Arias v. Aviles, No. 15 Civ. 9249 (RA), 2016 WL 3906738 (S.D.N.Y. July 14, 2016), and Saleem v. Shanahan, No. 16 Civ. 808 (RA), 2016 WL 4435246 (S.D.N.Y. Aug. 22, 2016). CaseCaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW 1:17-cv-02419-RA DocumentDocument Document 38-3100 7 FiledFiled 12/07/1804/17/1709/25/17 PagePage 2352101 of of2of 371127 Case 1:17-cv-02419-RA Document 6-1 Filed 04/17/17 Page 2 of 2

Court extended Arias to the non-resident petitioner, explaining that, "having construed§ 1225(b) in order to avoid infringing upon the due process rights of certain LPRs in Arias, the Court must follow Clark [v. Martinez, 543 U.S. 371 (2005),] and interpret the provision consistently for all aliens detained pursuant to it." As Respondents recognize, "this case is not distinguishable from

Saleem, as [the Petitioner] is a non-resident arriving alien detained under § 1225(b)." April 17,

2017 Letter, ECF No.6.

For this reason, the petition is GRANTED. The Court directs Respondents to provide the

Petitioner with a bond hearing before an immigration judge, at which the Petitioner "must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Lora, 804 F.3d at 616.

Sueh hearing shall occur within 14 days ofthe date of this order. The Clerk of the Court is directed to close this case.

SO ORDERED.

Dated: New York, New York April.fl, 2017

Umted States District Judge

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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------x

3 RENALDO CELESTIN,

4 Petitioner,

5 v. 17 Cv. 2419 (RA)

6 THOMAS DECKER, et al.,

7 Respondents.

8 ------x

9 June 14, 2017 11:40 a.m. 10 Before: 11 HON. RONNIE ABRAMS 12 District Judge 13 APPEARANCES 14 CLEARY GOTTLIEB STEEN & HAMILTON LLP 15 Attorneys for Petitioner BY: MICHAEL R. NOVECK 16 JONATHAN S. KOLODNER

17 JOON H. KIM Acting United States Attorney for the 18 Southern District of New York BY: BRANDON M. WATERMAN 19 Assistant United States Attorney

20 THE BRONX DEFENDERS BY: PAIGE AUSTIN 21

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 CaseCase 1:17-cv-00721-EAW1:17-cv-00721-EAW DocumentDocument 38-3100 FiledFiled 12/07/1809/25/17 PagePage 238104 ofof 371127 2 H6encela

1 (Case called)

2 MR. NOVECK: Good morning, your Honor. Michael

3 Noveck, from Cleary Gottlieb Steen & Hamilton, on behalf of

4 Mr. Celestin. Paige Austin from the Bronx Defenders, is also

5 with me at counsel table. I understand Mr. Kolodner is stuck

6 on Metro-North this morning.

7 THE COURT: Thanks for letting me know.

8 MR. WATERMAN: Good morning, your Honor. Brandon

9 Waterman, assistant United States Attorney on behalf of the

10 government.

11 THE COURT: Good morning, all.

12 We are here for a hearing on Renaldo Celestin's --

13 Am I pronouncing it correctly?

14 MR. WATERMAN: Yes.

15 THE COURT: -- order to show cause by a preliminary

16 injunction ordering respondents to release him on reasonable

17 conditions of bond or supervision should not be issued.

18 Here is some fact background for the record.

19 Celestin is a 25-year-old citizen of Haiti with no

20 criminal history. He has been held in the custody of

21 Immigration and Customs Enforcement continuously since October

22 26, 2016.

23 He was initially detained as an arriving alien

24 pursuant to 8 United States Code, Section 1225(b). He

25 voluntarily surrendered to U.S. immigration authorities at the

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1 U.S/Mexican border immediately upon arrival to the United

2 States. He was subsequently interviewed by an asylum officer

3 on December 13, 2016, who concluded that he had a credible fear

4 of torture if he were returned to Haiti.

5 According to Celestin, he and his brother were

6 abducted by masked men claiming to be the police. He was

7 beaten to the point of unconsciousness, and his brother, with

8 whom he was abducted, was murdered. His asylum merits hearing

9 is now scheduled for June 26.

10 On April 4, 2017, after he had been detained for

11 nearly six months Celestin filed a petition for a writ of

12 habeas corpus.

13 On April 17 this court granted his petition pursuant

14 to the Second Circuit's decision in Lora v. Shanahan and this

15 court's decision in Saleem v. Shanahan, 2016 WL 4435246, and

16 directed respondents to provide the petitioner with a bond

17 hearing before an immigration judge at which he must be

18 admitted to bail unless the government establishes by clear and

19 convincing evidence that the immigration immigrant poses a risk

20 of flight or risk of danger to the community. And that's the

21 language from Lora, 804 F.3d at 616.

22 Celestin bond hearing was held on April 27, 2017.

23 After determining that he did not pose a danger to the

24 community and that was undisputed, the immigration judge set

25 bond at $10,000.

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1 On May 22, Celestin filed an appeal of the bond

2 decision with the BIA.

3 On May 23, this Court issued an order to show cause

4 why a preliminary injunction should not be granted.

5 On June 1, the Court heard oral argument on the

6 petitioner's order to show cause, and on the June 6 the court

7 ordered supplemental briefing.

8 This Court has jurisdiction to hear this case pursuant

9 to federal habeas corpus statute, 28 United States Code,

10 Section 2241. See Zadvydas v. Davis, 533 U.S. at 687.

11 Although 8 United States Code, Section 1226(e) bars

12 judicial review of certain discretionary judgments, that

13 section does not deprive the court of jurisdiction over a

14 petitioner's constitutional and statutory challenges to his

15 detention, which are the only questions the Court addresses

16 today. See Vargas v. Davies, 2016 WL 3044850 at *4, and Demore

17 v. Kim, 548 U.S. at 516-17.

18 Additionally, the Court's April 17 order was a

19 conditional grant of habeas relief, meaning the Court retains

20 jurisdiction to determine whether there has been compliance

21 with the terms of the conditional order. See Enoh v. Sessions,

22 2017 WL 2080278, and Molina Posadas v. Shanahan, 2016 WL 146556

23 at *1.

24 Assuming arguendo that automation exhaustion is

25 required in the case of a conditional grant of habeas relief,

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1 the Court concludes that the failure to exhaust should be

2 excused in this case.

3 There is no statutory requirement of administrative

4 exhaustion before immigration detention may be challenged in

5 federal court by a writ of habeas corpus; however, such

6 exhaustion is generally required as a prudential matter.

7 Under Second Circuit precedent, if an exhaustion

8 remedy is judicially imposed instead of statutorily imposed, a

9 number of exceptions apply that allow courts to excuse a

10 party's failure to exhaust administrative remedies.

11 Specifically, exhaustion of administrative remedies may not be

12 required when (1) available remedies provide no genuine

13 opportunity for adequate relief; (2) irreparable injury may

14 occur without immediate judicial relief; (3) administrative

15 appeal would be futile; and (4) in certain instances a

16 plaintiff has raised a substantial constitutional question.

17 That's from the Beharry v. Ashcroft case, 329 F.2d at 62.

18 It is appropriate here to waive the requirement of

19 exhaustion. This case potentially falls within several of the

20 exceptions articulated by the Second Circuit. Celestin may

21 suffer irreparable injury without immediate judicial relief --

22 he is deprived of his liberty and specifically seeks relief

23 from detention so that he can gather evidence for his asylum

24 hearing, which will most likely take place before his

25 administrative appeal could be exhausted. Celestin is from the

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1 island of Gonave, Haiti, and his family has only sporadic

2 telephone service. His primary method of communication is over

3 WhatsApp and Facebook, which are not available to him in

4 detention. Because he must rely on personal connections to

5 individuals in Haiti to transport messages to his family,

6 neither his lawyer nor his United States relatives have been

7 able to conduct this investigation on his behalf. Due to these

8 circumstances it's especially difficult for him to prepare his

9 asylum case while detained.

10 Additionally, the BIA has railroad rejected some of

11 the arguments that petitioner advances, and there are

12 substantial constitutional questions at issue. Given all these

13 factors together, on the facts specific to this case, the

14 prudential exhaustion requirement is excused.

15 Now, petitioner's main contention in this proceeding

16 is that during the Lora hearing the government failed to meet

17 its burden of proving by clear and convincing evidence that

18 Celestin was danger to the community or risk of flight. It's

19 undisputed that he does not pose a danger, so the only real

20 issue before the IJ was risk of flight.

21 The government argued that he was a risk of flight and

22 that there's no amount of bond that would ensure his return to

23 immigration court.

24 Mr. Kolodner, you can come up to the front if you

25 would like.

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1 The immigration judge rejected that argument. While

2 the IJ concluded that DHS had met its burden of establishing

3 that Celestin does pose a risk of fright, ultimately she ruled

4 in his favor, finding that DHS has not met its burden of

5 establishing that no bond was appropriate. I do not find that

6 ruling to be erroneous as a matter of law.

7 Petitioner argues that the IJ erred in finding that

8 there was clear and convincing evidence that Celestin poses any

9 risk of right. I disagree.

10 For the reasons stated by Judge Buchanan in analyzing

11 the Guerra factors, I believe that he does pose a risk of

12 flight. What I find problematic, however, is that in setting

13 his bond at $10,000, an amount it is now asserted he cannot

14 afford, he may be detained solely due to his indigence.

15 It is for that reason that I ordered the parties to

16 brief the issue of (1) whether during the Lora hearing an

17 immigration judge is required to consider detainee's ability to

18 pay or alternatives to detention when setting bail and (2)

19 whether petitioner waived his ability to make such an argument

20 in light of his position before the IJ.

21 I have your supplemental briefing on this issue, but

22 if either party would like to be heard further on it, I am

23 happy to hear you out now.

24 MR. NOVECK: I think we're happy to rest on our

25 papers, your Honor.

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1 THE COURT: Mr. Waterman.

2 MR. WATERMAN: We would be happy to rest as well, your

3 Honor, unless you have further questions.

4 THE COURT: In that case I'm ready to rule.

5 I have considered your submissions.

6 So, Lora's mandate that immigration judges provide

7 procedural safeguards to avoid the serious constitutional

8 concerns raised by indefinite detention requires an immigration

9 judge in a Lora hearing to consider a detainee's financial

10 circumstances in setting bail.

11 As the government recognized at oral argument, setting

12 bond in an amount a person cannot pay would essentially be a

13 denial of bond. Denial of bond not due to evidence that the

14 immigrant poses a risk of flight or a risk of danger to the

15 community contravenes the mandates and the logic of Lora, 804

16 f.3d at 616. See Leslie v. Holder, 865 F.Supp.2d at 630 n.1,

17 stating that the Court of Appeals has treated the imposition of

18 a bail which the agency knows cannot be met as tantamount to

19 detention.

20 Moreover, failure to consider these factors creates a

21 significant risk that detainees will be deprived of liberty

22 solely based on indigence.

23 That raises serious constitutional concerns. Support

24 for this conclusion can be found in the jurisprudence regarding

25 the Due Process Clause, the Excessive Bail Clause, and the

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1 Equal Protection Clause.

2 Due process requires that the nature and duration of

3 commitment bear some reasonable relation to the purpose for

4 which the individual is committed, Jackson v. Indiana, 406 U.S.

5 at 738. See also Zadvydas 533 U.S. at 690.

6 The Excessive Bail Clause precludes bail conditions

7 that are (1) more onerous than necessary to satisfy legitimate

8 government purposes and (2) result in deprivation of an

9 individual's liberty. United States v. Arzberger, 592

10 F.Supp.2d at 605.

11 As the Supreme Court stated in the criminal context in

12 Stack v. Boyle, the modern practice of requiring a bail bond or

13 the deposit of a sum of money subject to forfeiture serves as

14 an additional assurance of the presence of an accused. Bail

15 set at a figure higher than an amount reasonably calculated to

16 fulfill this purpose is excessive under the Eighth Amendment,

17 342 U.S. at 5.

18 And, as the Department of Justice has itself argued in

19 the criminal bail context, incarcerating individuals solely

20 because of their inability to pay for their release, whether

21 through the payment of fines, fees, or a cash bond, violates

22 the Equal Protection Clause of the Fourteenth Amendment.

23 Statement of interest of United States at 1, Varden v. City of

24 Clanton, No. 215 Civ. 0034 (M.D. Al. February 13, 2015). See

25 also the May 2016 civil rights division Dear Colleague letter

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1 at 7, and also see also Pugh v. Rainwater, 572 F.2d at 1056, in

2 which the Fifth Circuit en banc stated that imprisonment solely

3 because of indigent status is invidious discrimination and not

4 constitutionally permissible.

5 Lastly, as the Supreme Court explained in Bearden v.

6 Georgia, whether analyzed in terms of equal protection or due

7 process, the issue of whether an individual's indigent status

8 must be considered in the decision whether to detain him by

9 revoking probation requires a careful inquiry into such factors

10 as the nature of the individual interest affected, the extent

11 to which it is affected, the rationality of the connection

12 between legislative means and purpose and the existence of

13 alternative means for effectuating the purpose. 461 U.S. at

14 666-67 and 672. The Bearden court held that to deprive an

15 individual of freedom simply because, through no fault of his

16 own, he cannot pay the fine would be contrary to the

17 fundamental fairness required by the Constitution. Id. at

18 672-73. See also O'Donnell v. Harris County, Texas, 2017 WL

19 1735456, and Rodriguez v. Providence Correctional Institution,

20 155 F.Supp.3d at 758, and Jones v. The City of Clanton, 2015 WL

21 5387219.

22 I don't see a valid reason why these considerations

23 are not also applicable in the immigration context. When bail

24 is set, it must be in an amount that furthers the government's

25 purported interest and does not simply, to use language from

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1 the Bearden case, punish a person for poverty.

2 Other courts have come to similar conclusions. See

3 Rodriguez v. Robbins, 804 F.3d 1060 and 1087. That's in the

4 Ninth Circuit 2015. Hernandez v. Lynch 2016 WL 7116611 (C.D.

5 Cal., November 10, 2016). See also Shokeh v. Thompson, 369

6 F.3d at 872 from the Fifth Circuit. That was vacated as moot.

7 Doan v. INS, 311 F.3d 1160, 1162; that's from the Ninth Circuit

8 2002. And cf. United States ex rel. Pirinsky v. Shaughnessy,

9 177 F.2d 708 and 709.

10 The government noted previously at oral argument in

11 this case, rightly noted I should say, that the purpose of the

12 setting of a bond is to assure the Court that the individual

13 will appear at a future court proceeding.

14 The BIA has similarly recognized that the setting of

15 bond is designed to ensure an alien's presence at proceedings.

16 Matter of Urena, at 141.

17 Notably, under BIA precedent, it is only if and when

18 an alien does not pose a danger to the community that an

19 immigration judge continues to a determination regarding the

20 extent of flight risk posed by the alien.

21 When discussing the Eighth Amendment, the Supreme

22 Court in United States v. Salerno stated that where the

23 government has admitted its only interest is in preventing

24 flight, bail must be set by a court at a sum designed to ensure

25 that goal and no more. 481 U.S. 739, 754.

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1 Determining the amount of bond necessary to fulfill

2 that purpose is inherently an individualized determination that

3 cannot be achieved without consideration of a detainee's

4 financial circumstances. If the purpose of bail is to ensure

5 that an individual returns to Court, how much that money means

6 to him is surely relevant. On one hand, a $10,000 bond won't

7 mean much to a millionaire; but, on the other hand, for someone

8 indigent perhaps a lower amount will provide the necessary

9 incentive to return to court. It can't be the case that people

10 are being detained simply for being poor.

11 I don't mean to suggest that a bond can never be set

12 in an amount that an individual can't pay, just that ability to

13 pay is a relevant and necessary consideration.

14 It may well be that, after consideration of all the

15 relevant facts, including an alien's financial circumstances,

16 an immigration judge determines that a specific bond amount is

17 appropriate whether or not the alien can afford that. That is,

18 of course, permissible.

19 What's not permissible in My view is a situation like

20 the one we have here, where a lower bond might have been set

21 had ability to pay been considered.

22 So, in my view, the IJ here carefully and thoughtfully

23 considered Celestin's case. She rightly noted that ability to

24 pay is a factor that can be considered, and she candidly

25 admitted that she had some concerns about trying to determine

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1 what an appropriate amount of bond is in this case.

2 Ultimately, in light of Celestin's counsel's position

3 that a family's income or family's financial resources are

4 irrelevant, the IJ set the amount of bond without making a

5 determination that I think was necessary.

6 And while the waiver issue is not without merit here,

7 in my view the interest of justice considerations prevail.

8 See, e.g., Hormel v. Helvering, 312 U.S. at 557.

9 Accordingly, I'm granting petitioner's request for a

10 preliminary injunction. Celestin has shown that he is likely

11 to succeed on the merits and that he is likely to suffer

12 irreparable harm in the absence of preliminary relief.

13 Additionally, as the government does not contest, the

14 balance of equities tips in Celestin's favor and an injunction

15 is in the public interest. See Citigroup Global Markets, Inc.

16 v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d at 34.

17 So that's my ruling.

18 In the normal course I would send this case back to

19 the immigration judge for her to consider Celestin's financial

20 circumstances. But here, in light of the particular facts of

21 the case and particularly the timing issues, given that

22 Celestin's asylum hearing is two weeks away, I'm inclined to

23 hold the bail hearing, the bond hearing right now.

24 The federal courts have inherent authority to admit to

25 bail individuals properly within their jurisdiction, including

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1 in the immigration context. Mapp v. Reno, 241 F.3d at 226.

2 The government recognized this during oral argument

3 when it stated that under the general habeas petitions I have

4 "the power to do almost anything you like" -- this is a

5 quote -- "including outright release or ordering a new bond."

6 Hearing transcript at 32.

7 So what I would like to do now is to discuss the issue

8 of whether, given the facts that are now in the record about

9 Celestin's financial circumstances, a lesser amount of bond is

10 sufficient to achieve the government's purpose of mitigating

11 his risk of flight.

12 Celestin's declaration states that, "I do not have any

13 siblings or my parents in the U.S. to help me. I have cousins.

14 When my bond was first set at $10,000, my family was very

15 upset, but said they would do everything possible to help.

16 Unfortunately, they have been unable to afford such a

17 significant sum of money to secure my release."

18 He also states, It is clear to me that, even though

19 they" -- meaning his family -- "wants to help me, they cannot

20 pay my current bond amount."

21 On page 7 of petitioner's memorandum of law in support

22 of the motion for a preliminary injunction, Celestin's lawyer

23 represents that he's been unable to post bond, which serves

24 only to confirm that he lacks the financial resources to do so.

25 As of today, Celestin has been detained for 232 days

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1 in total and 49 days since he was found eligible for bail by an

2 immigration judge.

3 Again, it is undisputed that he does not pose any

4 danger to the community. We also know from the record that he

5 requested that a bond be set at $2,000, which is presumably an

6 amount that he is able to pay.

7 So, given these facts in the record, I am going to

8 turn to the government and ask if you have any evidence

9 regarding his financial circumstances that you would like me to

10 consider in making this determination.

11 MR. WATERMAN: Your Honor, the government doesn't have

12 any evidence of financial circumstances. That information is

13 in the exclusive control of the petitioner; and, to the extent

14 your Honor is looking to consider that information, there

15 should be a limited shift of the burden of production to the

16 alien to provide that for the Court's consideration.

17 THE COURT: Given that we do have the affidavit of

18 Mr. Celestin, what else do you think we need?

19 MR. WATERMAN: Your Honor, that's with Mr. Celestin.

20 I don't know what his family or his sponsor's financial

21 condition is. I don't think there's any evidence in the record

22 specifically stating their employment, how much money they

23 have, or what they can afford. All we have is the alien

24 himself. But, again, the alien stated he would not be the one

25 paying the bond. It would be his sponsor. I think that is

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1 information that ICE presented at the bond hearing and the

2 immigration judge considered, that we have no information

3 concerning the individual, either the alien or his sponsor's

4 assets to determine an appropriate bond amount.

5 THE COURT: All right. Thank you.

6 Given that the government has no evidence to the

7 contrary, and again there's no issue of risk of flight, we have

8 Mr. Celestin's declaration, we have the information about his

9 cousins in Florida, but then we also have information, his

10 declaration in which he states that his family was unable to

11 afford the bond that was set at $10,000.

12 I think in light of this new information that was not

13 before the immigration judge, as well as the information that

14 the immigration judge considered in determining that it was

15 appropriate to set a bond because he was not -- I think I said

16 no issue of risk of flight. I meant that there's no issue of

17 dangerousness. Now we have in the record not only the

18 affidavit stating that he's unable to pay the $10,000 bond, but

19 we have the facts that were relied on by the immigration judge

20 in determining that bond was appropriate, that he was not so

21 much of a risk of flight that bond could not be set, we know

22 that he voluntarily surrendered to U.S. immigration authorities

23 at the U.S./Mexican border immediately upon his arrival to the

24 United States, and we know that the asylum officer who

25 interviewed him concluded that he had a credible fear of

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1 torture if he were to return to Haiti. So for all of those

2 reasons -- yes?

3 MR. WATERMAN: I'm sorry, your Honor.

4 If we are submitting evidence into the record, I do

5 have one piece of evidence that I would like to provide to the

6 Court.

7 THE COURT: Sure. Go ahead.

8 MR. WATERMAN: This was not before the immigration

9 court. This is a record of sworn statement. This was made to

10 the Customs and Border Protection officer at the border, so

11 when the alien had come in. I have a copy for petitioner's

12 counsel and for your Honor if you would like it.

13 THE COURT: Sure.

14 MR. WATERMAN: I will pass this up.

15 Your Honor, this is the initial interview when CBP

16 encounters an alien at the border.

17 Here on the second page near the bottom it states, the

18 question to the alien was:

19 "Why did you leave Haiti in 2013?

20 "A. I left Haiti in 2013 to find work, for a better life.

21 "Q. What is the main reason for you traveling to the United

22 States?

23 "A. I'm in the United States to find work and to be able to

24 help my family."

25 On page 4 I believe it is:

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1 "Q. Do you have any fear or concern about being returned to

2 your home country or country of last residence?

3 "A. No.

4 "Q. Would you be harmed if you were returned to your home

5 country or country of last residence?

6 "A. No."

7 And then on the last page there is a sworn statement

8 essentially attesting to the fact that he left his home country

9 to come to the United States to find work, that he does not

10 have a fear of being returned to his home country and that he

11 has no fear of being harmed if he were returned to his home

12 country.

13 That was dated October 27, 2016.

14 The reason I provide this, your Honor, is just to go

15 towards the merits of his asylum claim itself. Obviously an

16 asylum officer later in December found that he had a credible

17 fear of persecution or torture. That information was not

18 presented.

19 THE COURT: This information was before the asylum

20 officer I assume, correct, this record of sworn statement?

21 MR. WATERMAN: I don't believe so, your Honor. I

22 don't know what the officer has in front of him or her when

23 they are reviewing it. This is just a statement that was

24 provided at the border. This information was not provided to

25 the immigration judge in determining the flight risk.

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1 If anything, I think it just goes to the merits of the

2 asylum case, and it may have been relevant to the immigration

3 judge in determining what amount of bond to set, so I present

4 it here for your Honor.

5 THE COURT: Thank you.

6 Does petitioner want to respond?

7 MR. NOVECK: Yes, your Honor. Two points.

8 First, on the evidence that the government just

9 provided. This was an interview that took place before the

10 credible fear interview. The information was with the asylum

11 officer who conducted the credible fear interview. I can point

12 the Court to the last page of Exhibit 2 to Ms. Austin's

13 declaration that we submitted.

14 THE COURT: Bring the microphone a little closer

15 please.

16 MR. NOVECK: Sure.

17 THE COURT: Exhibit 2.

18 MR. NOVECK: Exhibit 2 to Ms. Austin's declaration

19 that we submitted along with the motion for a preliminary

20 injunction.

21 THE COURT: One second.

22 Go ahead.

23 MR. NOVECK: On the last page of that exhibit, there

24 is a section in the middle titled "Previous Statements."

25 The asylum officer specifically asks Mr. Celestin

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1 about these statements that the government just highlighted.

2 The question is: "After you were detained and the

3 officer asked if you would be harmed in Haiti and you said no,

4 can you explain that."

5 Mr. Celestin answers: "When I was on the border of

6 California and Mexico, someone was asking me questions. They

7 didn't give me a chance to explain the harm I endured. They

8 just had me say yes or no."

9 And then at the bottom, the third question in that

10 list is:

11 "But when they asked if you would be harmed in Haiti

12 and you said no, please explain that."

13 He responded: "It is possible that I didn't

14 understand the person because they were speaking Spanish. But

15 if they had asked if any harm came to me I would say yes and

16 explain."

17 So these were issues that were before the asylum

18 officer who conducted the credible fear interview. He

19 considered these statements. He considered Mr. Celestin's

20 responses and still found that Mr. Celestin presented a

21 credible fear of persecution.

22 As we noted I think in our initial papers, there was a

23 study cited in one of the Rodriguez opinions in the Ninth

24 Circuit that showed that two-thirds of asylum applicants who

25 pass a credible fear interview eventually win their asylum

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1 claims.

2 So, in light of the asylum officer's evaluation of the

3 statements the government presented, the fact that the

4 immigration court did have the credible fear interview in front

5 of it during the bond hearing and that information from the

6 Rodriguez case, we would submit that the calculus has not

7 changed here, that the asylum claim still is strong, and these

8 statements would not change anything at a bond hearing.

9 Just on the issue of financial resources also, your

10 Honor. I just wanted to point to Exhibit 3 of that same

11 declaration from Ms. Austin. I believe it is the third or

12 fourth page. It's the affidavit of Simoin Celestin, who is

13 Mr. Celestin's cousin. In the first paragraph there, he says,

14 second to last sentence, "I work in agriculture."

15 So that's some evidence --

16 THE COURT: I work in what?

17 MR. NOVECK: I work in agriculture.

18 So that's some evidence of lack of financial

19 resources. I think it's pretty reasonable to assume here that

20 these are farm workers in South Florida who are not making

21 millions of dollars. As your Honor noted a $10,000 bond is

22 much different to a millionaire than it is to people who lack

23 resources.

24 So there was some evidence before the immigration

25 judge of financial resources. I don't want to accept the

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1 government's assertion that we bear any burden here on that

2 issue, but there was some evidence in the record for the Court

3 to rely on should it so consider.

4 THE COURT: Was the record of sworn statement of

5 proceedings before the immigration judge?

6 MR. NOVECK: I am sorry?

7 THE COURT: The statement that the government just

8 presented, it's called the record of sworn statement of

9 proceedings.

10 MR. NOVECK: Your Honor, our understanding is that the

11 border interview that the government presented was not before

12 the immigration judge. It was certainly within the possession

13 of ICE at the time that the bond hearing occurred. They

14 obviously chose not to put it into evidence.

15 The statements in the credible fear interview that

16 refer back to those border statements were before the

17 immigration judge. Your Honor, just on the reliance of these

18 kind of border statements --

19 THE COURT: Right. The immigration judge was aware of

20 the fact that he had made these seemingly inconsistent

21 statements, and it may have been due to language issue or a

22 misunderstanding or an inability to articulate everything he

23 wanted to say.

24 But, in any event, she was aware of that when she made

25 the determination that he didn't pose such a risk of flight

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1 that bond shouldn't be set.

2 MR. NOVECK: Absolutely, your Honor.

3 THE COURT: Right.

4 MR. NOVECK: Just one last point.

5 There is some cause law on reliance of these types of

6 statements made at the border. I'll refer the Court to -- I'm

7 probably going to mispronounce this, Ramsameachire v. Ashcroft.

8 It's 357 F.3d 169 at 179. It is a 2006 Second Circuit case

9 written by then Judge Sotomayor. And I'm quoting, "The airport

10 interview is an inherently limited forum for the alien to

11 express the fear that will provide the basis for his or her

12 asylum claim, and the BIA must be cognizant of the interview's

13 limitations when using its substance against an asylum

14 applicant."

15 Thank you, your Honor.

16 THE COURT: In light of the agreement that Celestin

17 does not pose any danger to the community and the information

18 before the Court, including all of the reasons rightly noted by

19 Judge Buchanan, including that Celestin presented himself

20 voluntarily at the border, provided an address of relatives

21 with whom he can live, does not have any criminal history, the

22 IJ was right to set bond.

23 Given Celestin's financial circumstances, which now

24 appear uncontested, I find that $2,000 bond provides an

25 appropriate incentive for him to appear at future court

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1 proceedings.

2 I've considered the prior inconsistent statement, but

3 not only was the existence of the prior inconsistent statement

4 before the immigration judge when she made the determination

5 that bond was appropriate, but it was before the asylum officer

6 when she interviewed him and made the credible fear

7 determination.

8 Ultimately, that does not hold so much weight that it

9 affects my determination regarding risk of flight. So I find

10 that a $2,000 bond provides an appropriate incentive for

11 Mr. Celestin to appear at future court proceedings.

12 So that's my ruling.

13 Are there any other applications at this time?

14 MR. NOVECK: Nothing from petitioner, your Honor.

15 THE COURT: Yes?

16 MR. RILEY: John Riley from Newsday.

17 Because this is an immigration matter, the entire

18 PACER docket is sealed.

19 THE COURT: I unsealed everything to date yesterday.

20 Everything that had been sealed should be unsealed, and if it's

21 not you can reach out to my office.

22 MR. RILEY: Thank you.

23 THE COURT: Anything from the government?

24 MR. WATERMAN: Nothing from the government, your

25 Honor.

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1 THE COURT: Thank you. We are adjourned.

2 MR. WATERMAN: Thank you.

3 THE COURT: Thanks again for the advocacy on both

4 sides, which I thought was excellent, and the speed with which

5 you made your submissions.

6 (Adjourned)

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EXHIBIT 3: DECLARATION OF JOHAN MICHEL BARRIOS RAMOS

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, Petitioner, v. DECLARATION OF ELAINE DUKE, in her official capacity as Acting JOHAN BARRIOS Secretary of U.S. Department of Homeland Security; RAMOS THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Case No. 17-cv-721 (EAW) Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF JOHAN BARRIOS RAMOS

I, Johan Barrios Ramos, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Johan Michel Barrios Ramos. My date of birth is March 26, 1977.

2. I was born in Havana and am a native and citizen of Cuba.

3. I have been in the custody of Immigration and Customs Enforcement since January 14,

2017, when I sought asylum at the U.S.-Mexico border due to my past persecution in Cuba and my fear that government authorities there would again detain and torture me.

4. In 2010, I became involved with political opposition and human rights work in Cuba.

5. In 2013, I visited an independent journalist and member of the political opposition in prison in Cuba. After this visit, I was arrested, interrogated and incarcerated by Cuban authorities on suspicion of engaging in “anti-Cuba” activities. I was incarcerated for eleven months. During that

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time, I suffered physical and psychological abuse at the hands of guards. I was held in solitary confinement for several weeks and sometimes deprived of food.

6. After my release in 2014, I became more actively involved in the human rights movement in Cuba. As a totalitarian regime, the Cuban government does not accept this type of activity from citizens.

7. Cuban agents monitored my whereabouts and harassed me. Twice, government authorities prevented me from leaving Cuba.

8. In late 2016, following the death of Fidel Castro, Cuban government agents again came to my mother’s home looking for me and accused me of anti-government activities. I was not at home. My mother informed me and told me I should not return there again. I was very afraid that agents would again detain and torture me.

9. In December 2016, I finally succeeded in fleeing Cuba.

10. I left Cuba on a raft and arrived at the coast of Mexico. From there, I traveled overland until I arrived at the United States border in Roma, Texas on January 14, 2017.

11. After presenting myself at the U.S. border and requesting asylum, I was given a credible fear interview on February 1, 2017. I passed that interview. However, on the same date, a deportation officer informed me that ICE was no longer granting parole to anyone.

12. At no time since my detention have I been given a form explaining what parole is or what

I need to submit to ICE in order to be paroled. I have also never been interviewed regarding parole or my requests for parole.

13. I retained Desiree Lurf as legal counsel in February, 2017. My attorney has twice formally requested parole on my behalf. The first request included a declaration from my sister, who is a Lawful Permanent Resident; a declaration from a U.S.-citizen friend whom I have

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known since childhood; letters from friends; and a copy of my passport. It was denied without any explanation.

14. The second request for parole filed by my attorney also included proof of my medical problems in detention including a fractured wrist. It was also denied without any explanation.

15. Since my credible fear interview, I have asked my deportation officer, Officer Ensminger, on at least two occasions why my parole requests have been denied. He told me that only one in a million parole requests are granted and it is a matter of luck.

16. I am suffering in detention. The anxiety that I felt while incarcerated in Cuba has gotten worse because being locked up reminds me of what happened to me in Cuba. I have been diagnosed with PTSD. I also have medical problems and feel very upset because my mother’s health has deteriorated in Cuba.

17. The merits hearing in my case was scheduled for August 15, 2017. I was fully prepared to testify about my claim. I started to testify, however, there was a problem with the interpreter and the case was continued. I was very upset to learn that now my next hearing is not scheduled until

November 29, 2017. I will have been detained in the U.S. for almost a year at that point.

18. I am willing to serve as a class representative on behalf of all detainees similarly situated at Batavia and future detainees who are not granted parole.

19. I know that I am representing more than just myself in this case. I have spoken with the lawyers who represent me about what being a class representative means. I want to help everyone in my situation because we are all suffering here due to the unfair handling of parole.

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JOHlNBARRJOS RAMOS

Dated: August .Ji 2017 Batavia, NY

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Affirmation of Translation

I, Desiree Lutf, affirm, under the penalty of peijury, that truth of the following:

1) I am a lawyer admitted to practice law in New York State. I practice immigration law at the

Law Firm of Desiree Lutf.

2) I am fluent in both English and Spanish and competent to translate from English into

Spanish and vice versa.

3) I translated the within declaration from English to Spanish for Johan Barrios Ramos and he informed me that he understood its contents and confirmed that the contents are true and correct.

DESIREE LURF

Dated: August 18, 20 17 Batavia, New York CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 268 1 ofof 33371

EXHIBIT 4: DECLARATION OF HANAD ABDI

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI, Petitioner, v.

JOHN KELLY, in his official capacity as Secretary of DECLARATION OF U.S. Department of Homeland Security; THOMAS HANAD ABDI BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Case No. Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF HANAD ABDI

I, Hanad Abdi, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Hanad Abdi. I was born in 1991. I am 26 years old.

2. I am a native and citizen of Somalia.

3. I was born in Buulo Mareer, a town about 75 miles south of Mogadishu. I lived there with my father, mother, and four younger siblings.

4. My mother died during childbirth in 2008. I had to care for my younger siblings after that.

5. My family is part of a small minority tribe known as the Tunni. We were targeted and harassed for decades by members of a larger, more powerful tribe known as the Habar-gidir. I

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was bullied in school for being part of the Tunni. I remember hearing the Habar-gidir men harass my mother when I was a child.

6. More recently, members of the Habar-gidir wanted the plot of land that my family has owned and farmed for generations. Around 2008, members of the Habar-gidir seized my father’s land. After my father went to the village elders, my father was able to get back about half of the land.

7. The man who seized this land died in April 2016. His brother, who was the Chief of

Police in the section of Buulo Mareer where my family lived, believed that my father had conducted witchcraft that caused the man’s death. As an act of vengeance, the Chief of Police shot and killed my father in May 2016.

8. I was attending English classes when my father was killed. I came home to find my aunt weeping. I had to go to our family farm to collect my father’s body. Since I am the oldest child, I was responsible for burying my father.

9. A week later, I attempted to sneak back to my family farm to see what had happened to it.

I was confronted by plain-clothes policemen employed by the man who murdered my father.

10. Those men captured me, tied me, and beat me up. I believe they would have killed me had I not been able to escape later that day when the men got into a gunfight with a rival group.

During that chaos, I managed to untie myself and run away. I fled into the bushes in the countryside and hid in a ditch in the ground for several hours. I heard the voices of my captors when they came to the area looking for me. I was terrified.

11. At around midnight, when I was sure that my captors were gone, I walked back to my house. There, I met my aunt who told me that my captors had just been at the house looking for me and they beat her demanding that she turn me in.

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12. I believed that I had to leave the area immediately since the men were still looking for me. A family friend helped hide me in the back of a vehicle that took me to Mogadishu.

13. Some days later, I started receiving threatening phone calls from the men who had captured me telling me that they knew where I was and that they planned to kill me.

14. I went to the police station in Mogadishu and filled out a police report. But the police officer told me that he could not protect me against the Chief of Police of Buulo Mareer.

15. I left Somalia on June 10, 2016, shortly after receiving those threatening phone calls. My same family friend paid smugglers to help me travel overland to Ethiopia and then Brazil by plane.

16. From Brazil, I was passed from smuggler to smuggler and crossed overland through Peru,

Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico, finally arriving at the southern border of the United States. I arrived in Brownsville, Texas, on October

12, 2016.

17. I declared myself at the border post there and requested asylum because I believed that I could find safety and refuge in this country.

18. I spent approximately two weeks at a detention center in Texas and was then transferred to the Buffalo Federal Detention Facility on or around October 26, 2016.

19. I had my credible fear interview on November 21, 2016.

20. Attached as Exhibit A is the summary of my credible fear interview, dated November 23

2016, that I received.

21. On December 8, 2016, I was provided notice that I would have the opportunity to present my claim for asylum before an immigration judge.

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22. Attached as Exhibit B is a copy of Notice to Appear dated November 23, 2016, that I received on December 8, 2016.

23. On December 8, 2016, I received a form titled “Parole Advisal and Scheduling

Notification.”

24. Attached as Exhibit C is a copy of the Parole Advisal and Scheduling Notification dated

December 8, 2016 that I received.

25. I had my parole interview with my ICE deportation officer, Mitchell Muehlig, on

December 15, 2016.

26. To support my parole application, I submitted a copy of my birth certificate and collected affidavits and supporting documentation from my relatives and a family friend living in the U.S. who all know me personally.

27. In response, I received a notice, dated December 19, 2016, that my parole application had been denied because I had failed to establish my identity to ICE’s satisfaction. I received this news on a form that was titled “Notification Declining to Grant Parole.”

28. Attached as Exhibit D is a copy of the Notification Declining to Grant Parole dated

December 19, 2016, that I received.

29. I requested that ICE reconsider its decision. In response, I received another “Notification

Declining to Grant Parole,” dated January 10, 2017, indicating that ICE was denying my parole because I had failed to establish my identity to ICE’s satisfaction.

30. Attached as Exhibit E is a copy of the Notification Declining to Grant Parole dated

January 10, 2017, that I received.

31. I asked Officer Muehlig, why my parole requests were denied. He told me that it was because I had not submitted photo identification.

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32. I retained my immigration lawyer Siana McLean on February 28, 2017.

33. She renewed my request for release on parole on April 20, 2017.

34. She is also representing me in my asylum case, where my hearing in immigration court is scheduled for August 28, 2017.

35. I received my third parole denial on May 4, 2017.

36. I asked Officer Muehlig, why my request was denied again. Officer Muehlig said that there was nothing he could do and that the decision to deny parole had been made by his superiors. He told me that “everything changed” in January and parole has “all stopped” under the new administration.

37. I am suffering from debilitating anxiety and depression as a result of all the events that led to my fleeing Somalia. These conditions are getting worse. The guards and other detainees at the Buffalo Federal Detention Facility see that I often wake up screaming from nightmares.

38. My psychological status has deteriorated over the past two weeks. My nightmares wake me up constantly and I have been having trouble breathing. I have not had the opportunity to receive adequate counseling or therapy for all the trauma that I have suffered, even though I keep asking to be seen by a doctor here.

39. Not knowing anything about my four younger siblings also adds to my anxiety and depression. I was forced to leave them behind when I fled Buulo Mareer. I hope that they were able to run away before the Habar-gidir came to my house looking for me. I want to call neighbors and friends to find out where my younger siblings may be, but I am unable to do that while I am detained. I am terrified that the reason that I have not heard from any of my siblings is because they were captured like me or killed like my father.

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40. I am unable to effectively help Ms. McLean gather all the documents that she needs to prepare my asylum case. She has asked for documents from Somalia, but I am unable to contact people there while I am in detention here.

41. If I were not detained, I would contact my family on the phone, by email, social media. I would try everything to communicate with my brothers and sister.

42. If released, I intend to appear at all my court hearings. I am ready to comply with any reasonable condition of release the immigration court imposes to ensure my appearance at future hearings.

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HAN AD MOHAMED ABDI

Dated: July ll, 2017 New York, NY

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EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 277 10 ofof 37133

Department of Homeland Security U.S. C_itizens!Jip and Immigration Services Record of Determination/Credible Fear Worksheet

BUF ZNK A209438557 ABDI District Office Code Asylum Office Code AJien's File Number Alien's Last/ Family Name HURTAULT ARNOLD SOMALIA Asvlum Officer's Last Name Asylum Officer's First Name Alien's Nationalitv

All statements in italics must be read to the applicant SECTION 1: INTERVIEW PREPARATION

1.1 10/12/16 1.2 BROWNSVILLE, TX Date of arrival [MMIDD/YY] Port of arrival 1.3 10/12/16 1.4 Buffalo Federal Detention Facility Date of detention [MM/DD/YY] Place of detention 1.5 I 0/26/16 1.6 Apprehended outside of ZNK jurisdiction Date of AO orientation [MM/DD/YY] If orientation more than one week from date of detention. explain delay 1.7 11/21116 1.8 Telephonic I Buffalo Federal Detention Facility Date of interview [MM/DD/YY] Interview site 1.9 C8J Applicant received and signed Form M-444 and relevant pro bono list on 10126/16 Date signed [MM/DD/YY] 1.10 Does applicant have consultant(s}? D Yes I:8J No 1.11 If yes, consultant(s) name, address, telephone number and relationship to applicant

1.12 Persons present at the interview (check which apply) 1.13 D Consultant(s} 1.14 [gJ Other(s}, list: Applicant, asylum officer, deportation officer l. 1 5 D No one other than applicant and asylum officer 1.16 Language used by applicant in interview: Somali 1.17 Language Line # LL 208032 1:8:1 Yes D No I :30 p.m. 3:21p.m. Interpreter Service, Interpreter ID Number. Interpreter Has Forms Time Started Time Ended 1.18 #· DYes D No Interpreter Service, Interpreter ID Number. Interpreter Has Forms Time Started Time Ended 1.19 # D Yes D No Interpreter Service, Interpreter ID Number. Interpreter Has Forms Time Started Time Ended 1.20 [g] Interpreter was not changed during the interview 1.21 D Interpreter was changed during the interview for the following reason(s): 1.22 D Applicant requested a female interpreter replace a male interpreter, or vice versa 1.23 0 Applicant found interpreter was not competent 1.24 D Applicant found interpreter was not neutral I .25 D Officer found interpreter was not competent 1.26 0 Officer found interpreter was not neutral 1.27 D Bad telephone connection 1.28 [gJ Asylum officer read the following paragraph to the applicant at the beginning of the interview: The purpose of this interview is to determine whether you may be eligible for asylum or protection from removal to a country where you fear persecution or torture. l am going to ask you questions about why you fear returning to your country or any other count1y you may be removed to. It is very important that you tell the truth during the interview and that you respond to all of my questions. This may be your only opportunity to give such information. Please feel comfortable telling me why you fear harm. U.S. law has strict rules to prevent the disclosure of what you tell me today about the reasons why you fear harm. The information you tell me about the reasons for your fear will not be disclosed to your government, except in exceptional circumstances. The statements you make today may be used in deciding your claim and in any future immigration proceedings. It is important that we understand each other. If at any time I make a statement you do not understand, please stop me and tell me you do not understand so that I can explain it to you. If at any time you tell me something I do not understand, I will ask you to explain

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Alien's File Number: A 209 438 5571

SECTION II: BIOGRAPHIC INFORMATION 2.1 ABDI Last Name! Family Name [ALL CAPS] 2.2 HANAD 2.3 MOHAMED First Name Middle Name 2.4 05/2511991 2.5 Gender [2J Male 0 Female Date of birth [MMIDDrYY] 2.6 Names: NIA; Dates of Birth: NIA Other names and dates of birth used 2.7 Somali 2.8 Somali Country of birth Country (countries) of citizenship (list all) 2.9 San Paolo, Brazil Address prior to coming to the U.S. (List Address, City/Town, Province, State, Department and Country}. 2.10 Tuni 2.1 I Islam 2.12 Somali Applicant's race or ethnicity Applicant's religion All languages spoken by applicant 2.13 Marital status: [2J Single 0 Manied 0 Legally separated 0 Divorced 0 Widowed 2.14 Did spouse arrive with applicant? 0 Yes 0 No 2.15 Is spouse included in applicant's claim? 0 Yes 0 No 2.16 If currently married (including common law marriage) list spouse's name, citizenship, and present location (if with applicant, provide A- Number): I citizenship: I present location:

2.17 Children: 0 Yes WNo 2_ 18 List any children (Use the continuation section to list any additional children): Date of birth Name Citizenship Present location (ifw/PA, list Did child arrive (MMIDDIYY) Is child A-Numbers) with PA? included in PA's claim? DYes D D 0 No Yes No

2.19 Does applicant claim to have a medical condition (physical or mental), or has the officer observed any indication(s) that a medical condition exists? If YES, answer questions 2.20 and 2.21 and explain below. 0 Yes [81 No 2.20 Has applicant notified the facility of medical condition? 0 Yes 0 No 2.21 Does applicant claim that the medical condition relates to torture? 0 Yes 0 No 2.22 Does the applicant have a relative. sponsor or other community ties, including spouse or {'8J Yes No child already ljsted above? 0 2.23 If YES, provide infonnation on relative or sponsor (use continuation section, if necessary): Name: Adirahman ALI Relationship: cousin Address: Minnesota Telephone Number: (to be provided) C8J Citizen 0 Legal Permanent Resident 0 Other:

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Alien's File Number: A209438 557

SECTION III: CREDIBLE FEAR INTERVIEW

The following notes are not a verbatim transcript of this interview. These notes are recorded to assist the individual officer in making a credible fear determination and the supervisory asylum officer in reviewing the determination. There may be areas ofthe individual's claim that were not explored or documented for purposes of this threshold screening. The asylum officer must elicit sufficient infonnatlon related to both credible fear of persecution and credible fear of torture to determine whether the applicant meets the threshold screening. Even if the asylum officer determines in the course of the interview that the applicant has a credible fear of persecution, the asYlum officer must still elicit any additional information relevant to a fear of torture. Asylum officers are to ask questions and may use the continuation the following sheet if additional space is required. If the applicant replies YES to any question, up questions to the asylum officer must ask elicit sufftcient details about the claim in order to make a credible fear detennination. 3.1 a Have you or any member ofyour family ever been mistreated or threatened by anyone in any country to which you may be returned? [g) Yes 0 No _See Q&A. ______

b. Do you have any reason to fear harm from anyone in any count1y to which you may be returned? [g) Yes 0 No __SeeQ&A. ______

c. If YES to questions a and/or b, was it or is it because of any of the following reasons? (Check each of the following boxes that apply). [g) Race 0 Religion Nationality 0 0 Membership in a particular social group [g) Political Opinion

3.2 At the conclusion of the interview, the asylum officer must read the following to applicant: If the Department of Homeland Security determines you have a credible fear of persecution or torture, your case will be referred to an immigration court, where you will be allowed to seek asylum or withholding of removal based on fear of persecution or withholding of removal under the Convention Against Torture. The Field Office Director in charge of this detention facility will also consider whether you may be released from detention while you are preparing for your hearing. Ifthe asylum officer determines that you do not have a credible fear ofpersecution or torture, you may ask an Immigration Judge to review the decision. you If are found not to have a credible fear ofpersecution or torture and you do not review, you may request be removed from the United States as soon as travel arrangements can be made. questions? Do you have any A: None ______

3.3 (gJ At the conclusion of the interview, the asylum officer must read a summary of the claim, consisting of the 3.1 and responses to Questions information recorded in the Additional Information/Continuation section, to applicant. ****Typed Question and Answer (Q&A) interview notes and a summary and analysis of the claim must be attached to this fonn for all negative credible fear decisions. These Q&A notes must reflect that the applicant was asked to explain any inconsistencies or lack of detail on material issues and that applicant was given every opportunity to establish a credible fear.

SECTION IV: CREDIBLE FEAR FINDINGS A. Credible Fear Determination: Credibility 4.1 [g) There is a significant possibility that the assertions underlying the applicant's claim could be found credible in a full asylum or withholding of removal hearing. 4.2 0 Applicant found not credible because (check boxes 4.3-4.5, which apply): 4.3 0 Testimony was internally inconsistent on material issues. 4.4 0 Testimony lacked sufficient detail on material issues. 4.5 0 Testimony was not consistent with country conditions on material issues.

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Alien's File Number: A209 438 5571

Nexus 4.6 [gj Race 4.7 D Religion 4.8 D Nationality 4.9 0 Membership in a Particular Social Group (Define the social group): ·

4.10 0 Political Opinion 4.11 D Coercive Family Planning [CFP] 4.12 D No Nexus

Credible Fear Finding 4.13 I'2J Credible fear of persecution established. OR 4.14 D Credible fear of torture established. OR 4.15 Credible fear of persecution NOT 0 established and there is not a significant possibility that the applicant could establish eligibility for withholding of removal or deferral of removal under the Convention against Torture.

B. Possible Bars: 4.16 Applicant could be D subject to a bar(s) to asylum or withholding of removal (check the box(es) that applies and explain on the continuation sheet): 4.17 Particularly D Serious Crime 4.18 D Security Risk 4.19 0 Aggravated Felon 4.20 D Persecutor 4.21 D Terrorist 4.22 D Firmly Resettled 4.23 D Serious Non-Political Crime Outside the United States 4.24 [gl Applicant does not appear to be subject to a bar(s) to asylum or withholding of removal.

C. Identity: 4.25 [8J Applicant's identity was determined with a reasonable degree of certainty (check the box(es) that applies): 4.26 [8J Applicant's own credible statements. (If testimony is credible overall, this will suffice to establish the applicant's identity with a reasonable degree of certainty). 4.27 D Passport which appears to be authentic. 4.28 0 Other evidence presented by applicant or in applicant's file (List):------

4.29 Applicant's 0 identity was not determined with a reasonable degree of certainty. (Explain on the continuation sheet.)

SECTIONV:

5.1 A.HURTAULT, ZNK093 5.2 5.3 Asylum officer name and ID CODE (print)

5.4 5.5 •• 5.6 NOV 2 3 2016 s signature Date supervisor approved decision

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A#: 209 438 557 Applicant Name: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date of Interview: 11/21/16 Page 5 of 12

ADDITIONAL INFORMATIONfCONTINUATION The following notes are not a verbatim transcript of this interview. These notes are recorded to assist the individual officer in making a credible fear determination and the supervisory asylum officer in reviewing the determination. There may be areas of the individual's claim that were not explored or documented for purposes of this threshold screening. ·

Language Line # LL 208032 Start: 1:40 pm

Q: Hello. My name is Officer 1-lurtault and I will be conducting your interview today through an interpreter. Are you comfortable continuing this interview in Somali or would you prefer a different language? A: Somali

Q: What other language do you speak? A: Somali

Q: If at any point in time you don't understand the interpreter or my question, please tell me. I can repeat the question or rephrase it so you can understand. A:Ok

[AO checks with interpreter to ensure interpreter understands applicant; interpreter confirms sfhe understands applicant] Q: Do you have an attorney or a consultant? A:No

Q: You have a right to have an attorney present during your interview or listening in. Do you agree to have this interview today without an attorney or would you like to reschedule your interview for a later date so you can find an attorney? A: No, I can proceed with you right now without an attorney.

Q: Are you alone in the room? A: There is another man here -the immigration officer.

Q: Are you comfortable speaking with me today even though there is someone else in the room with you? A: Yes, I am comfortable speaking.

Q: Do you have any medical or health issues? A: No, right now I am fine.

Q: Have you been mistreated in any way at the detention facility? A: No, I was never mistreated.

Q: You are in a process called Credible Fear, and the reason why you're in this process is because you said that you are afraid of returning to Somalia. Do you have any questions about the Credible Fear process or the orientation document (M-444) signed? that you A:No

Q. Now the interpreter will now read to you the purpose of this interview. Please listen carefully.

(1.28) The purpose of this interview is to determine whether you may be eligible for asylum or protection from removal to a countly where you fear persecution or torture. I am going to ask you questions about why you fear returning to your count1y or any other counlly you may be removed to. It is very important that you tell the truth during the interview and that you respond to all of my questions. This may be your only opportunity to give such information. Please feel comfortable telling me why you fear harm. U.S.

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A#: 209 438 557 Applicant Name: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date of Interview: 11/21116 Page 6 of 12 law has strict rules to prevent the disclosure of what you tell me today about the reasons why you fear harm. The information you tell me about the reasons for your fear will not be disclosed to your government, except in except;onal circumstances. The statements you make today may be used in deciding your claim and in any future immigration proceedings. It is important that we understand each other. If at any time I make a statement you do not understand, please stop me and tell me so that I can explain it to you. If at any time you tell me something I do not understand, I will ask you ta explain.

Q: Do you have any questions about what was just read to you? A: No

Q: Do you promise that all the statements you are about to make will be the truth, the whole truth and nothing but the truth? A: Yes

[Applicant and interpreter placed under oath]

Q: Confidentiality- explained

Q: How many times have you come to or entered the United States? A: Only one time- this is my first time.

Q: Father's naine? A: Mohamed Abdi Jijile. Died, was killed this year in May.

Q: Mother's name? A: Bolo Ali Barise. Died 2008.

Q: Where did your father live? A: In Buulo Mareer, Somalia. That's where I lived.

Q: Where were you born? A: In Buulo Mareer

Q: Have your parents ever applied for asylum in the United States before? A:No

Q: Are either of your parents citizens of the United States? A:No

Q: Did you travel to the US alone or with any family members? A: Alone

[Completed biogrophic information on I-870]

Q: Have you ever been a citizen of any other country? A:No

Q: Have you ever lived in any other countries for an extended amount oftime? A: No

Q: Were you ever given permanent immigration status in Brazil, such as citizenship or legal residency? A:No

Q: Have you ever lived in any other country besides Somalia and Brazil?

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A#: 209 438 557 Applicant Name: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date of Interview: 11/21/16 Page 7 of 12 A:No

PERSECUTION

Q: Why are you seeking asylum? A: To save my life because I had a lot of problems in Somalia

Q: What problems did you have? A: Some people tried to kill me that's why I ran away.

Q: Why were people trying to kill you? A: The same man who killed my dad.

Q: Why did the man kill your dad? A: We owned a farm and a man from a bjg tribe wanted to take the land from my father the man was from a big tribe and the elders of the village agreed for him to take half of the land. Then the man who took the land died. That is the type of things that their clan do to us, the Tuni. They are a much bigger and powerful clan and they do things like just take our land and we cannot do anything about it. Q: Then what happened? A: Then his brother who works for the government and came at us and started yelling at us and saying that my dad was the one who killed his brother and he shot my dad and he died on the spot.

Q: where you there at the time? A: No. I was at school at an English language school. When I got home I saw my mom crying and I went to get his body. Q: How far was the body from your home? A: About an hour away.

Q: Who was the person who killed your father? A: He was the brother of the man who died, and he worked for the government.

Q: What did he do for the government? A: He was the police chief, he still is the police chief in the area.

Q: Did you report this to the authorities? A: First I buried my father.

Q: And then? A: We kept quiet for about a week, then I went to the land, and while I was there at the land, police officer officers in plain close came and tied my hands they took me to a side bush beat me and they said they are going to take me to their boss, I pleaded with them. While we were walking in a bush area they saw some men with weapons and they started shooting at them. Q: what happen? A: We all ran away and I ended in a ditch and stayed in the ditch. I was tied up and I stayed in the ditch. It was sunset at that time. I heard a lot of shooting and then finally he guys who were with me. Then they were saying where is the man their boss sent for. They left at about midnight and started walking.

Q: Where did you go? A: I came to my house, I saw my aunt and they had beat her really bad because the men came to look for me and they beat her. She told me that I should run for my like because they want to kill me.

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A#: 209 438 557 Applicant Name: ABDI, HAN AD MOHAMED AO: A. HURTAULT; ZNK093 Date of Interview: 11/21/16 PageS ofl2

Q: Did they ever catch you? A: No, because I fled the country, or I would be dead.

Q: Why did you not relocate to another part of the country that is safe? A: That night I went to a good friend of my father, the second night he put me in a case and took me to Mogadishu, the capital. When got there, I did not know anyone, I but my dad's friend told me to go to my dad's friend. Two days later got they I a call telling me that that took the farm and they are going to kill me. Two weeks later I left the country.

Q: To what clan does the man who killed your father belong? A: Habar Gidir

Q: Wat is the difference with your clan? A: Mine is a minority clan and the other is a very big clan. That the same type of thing that happens to other members of my clan. Q: Give me some examples? A: My tribe, no one likes was. They make us pay for water, they treat us really bad when I went to school. They did not like use. Q: Why were your clan members treated that way? A: It's been like that a very long time, it's because my tribe is very small. We are very minority, we don't have an armed group, they always treat us very bad. and

Q: What do you think will happen to you if you return to your country? A: They will kill me and they will look for me and find me.

Q: Why can't you relocate to another part of the country and be safe? A: They are a big tribe and they will find me easily.

Q: Why will the tribe be able to find you easily? A: They are a big tribe they have a lot of access. People identif'y themselves tribe, and you cannot lie about that of they will kill you, and they can find you by your name.

Q: Has anyone in your family ever threatened or banned you in Somalia, even when you were younger? A:No.

Q: Besides what you told me, did anything else happen to you? A: There were other things, but that was the big one.

Q: Could you give me an example? A: A lot of things happen to you as a minority, they would call us bad names, they would say we are minority, if! tried to play soccer the guys would beat me bad and we could not go to the police because they are from the same clan. But, the worst was what happened to my father because I lost my father.

Q: Why did the elders agree to give the man half of your father's farm? A: First, the man took the whole farm, and my dad went to the elders to beg them he told them that they know that he was working tl1e land for generations. Then the elders agreed to give him back half.

Q: If you went back to Somalia, what do you think would happen to you? A: They will kill me. We complain about the police and the government say they cannot do anything about it. So we have protection. not

Q: I understand that you don't know for sure what will happen if you return to Somalia, but what do you think would happen to you?

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A#: 209 438 557 Applicant Name.: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date of Interview: I 1121116 Page 9 of 12

A: The man will kill me. He is looking for me he has a position in the government and he can find me anywhere and kill me.

Q: What is the name of that person who is looking for you? A: He had a nickname called QAM. I don't know his real name. the guy who died name is Omar Shire. He is the brother of the police officer who shot my father.

Q: When was your father killed? A: In May, this year.

Q: Do you have a death certificate? A: No. I did not get a chance to make any papers.

Q: Mother's death? A: She died while giving birth.

Q: Do you know of anyone who had the type of problems, like with similar clans and what happened to them?

A: I don't know them personally but I have heard of stories of people being killed over things like land by bigger clans. It happened a lot of times in the town !lives.

Q: Is there any other reason why you fear harm in your country? A: No. That the reason, what I told you

Q: Besides Qam who shot your father, are you afraid of anyone else in Somalia? A: No. He is the main problem for me.

Q: Were you ever involved in political activities in Somalia? A: No.

Q: In Somalia, did you have any other type of problem? A: No. What I told you is what I am facing and the reason I ran away from Somalia.

Q: Did you report this to police? A: Yes. I told them what I was my problem I was facing when I was in Mogadishu. That they killed my dad and they are chasing me. They told me they cannot help me because the guy I was complaining about had a big position and there was nothing they could do about it. The man said like my dad did voodoo and killed his brother. But that was not true my dad had nothing to do with Voodoo.

Q: Could you go to the police and make a report? A: No. They would not help me.

Q: Would the police protect you? A: No.

Q: If the police don't help you, who can you tum to for help? A: No one. The tribe is big they do what they want.

Q. Other than your problems you already mentioned, did anyone else in your country ever threaten or hurt you?

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A#: 209 438 557 Applicant Name: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date oflnterview: 11/21116 Page 10 ofl2

A. No.

Q: Do you believe that you have been or fear you will be harmed or threatened because of your nationality or language? A: No. Just what I told you

Q: Do you believe that you have been or fear you will be harmed or threatened because of your religion? A: No.

Q: Do you believe that you have been or fear you will be harmed or threatened because of your political opinion or your ideas, beliefs or the way you think? A:No.

Q: Is there anything about you that makes you different or makes people treat you differently than other people in your country? A:No

Q: If so, do you believe that you have been or fear you will be harmed or threatened because of your clan membership? A: Yes. Because my family, my father who was killed and was blamed for the natural death of another man who is from a powerful clan.

Q. Do you feel that you could be safe in another part of your country? A. No. You have to live with your clan, so they will find me.

Q. Do you believe that the police or government are working with the people who are trying to harm you? A. Yes. The man is a police chief. He is like the government. They do what they want.

Q. Could the police or government protect you from the people you fear? A. No. The man is a police chief

Now I have to ask you a series of questions that I ask all applicants.

Q: Have you ever served in the military or police? A: No. I was working on the farm with my father.

Q: Have you ever been detained, questioned or arrested for any reason at any time anywhere in the world aside from your U.S. immigration arrest? A: Yes. In Mexico and Colombia, because of immigration when I was coming here.

Q: Have you ever been accused, charged with a crime, or convicted of a crime anywhere in the world? A:No.

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A#: 209 438 557 Applicant Name: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date oflnterview: 11/21/16 Page 11 ofl2

Q: Have you ever committed a crime, even if you were not caught or punished for it? A: No

Q: Have you ever harmed or helped to harm another person for any reason? A: No

Q: Have you ever been affiliated with, supported, or assisted a group that uses or advocates violence? A: no

Q: Have you ever been involved with any terrorist acts or organizations? A: No

Q: Have you been involved with any criminal gangs, or with members of groups like AI Shabaab? A: No

Q: Have you ever made, sold, or smuggled any illegal drugs? A: No

Q: Have you ever lied or said something that was not true in order to gain an immigration benefit? A:No.

APSO summarized the case to the applicant as required by section 3.3.

You testified that are a member of the Tuni, a minority clan, and your father was killed by a local police chief, nicknamed Qam, who belonged the powerful Habar Gidir clan. Qam killed your father because his brother died after the brother took half of your father's farm. You stated that Qam brother died of natural causes but Qam accused your father of using Voodoo to curse his brother. After your father's death Qam sought to kill you. After your father's death, when you returned to the farm plainclothes police officers sent by the police chief arrested you beat you, and tied you up to deliver you to Qam. You managed to escape when a gun fight started police clothes officer and other gunmen who were passing in the area. You took the opportunity to run away and hide and fled to Mogadishu. While in Mogadishu, someone called and told you they will kill you if you return to the farm. You fear that if you return you will be killed be killed and the government will not protect you. You will be easily identified because of your name and clam membership anywhere in the country because the clan that you are afraid of is very large and they can find you anywhere in the country. Cannot relocate and be safe.

Q: Is the summary correct? A: Yes

Q: Would you like to change or add anything? A:No.

READ: (3.2) Ifthe USC!S determines you have a credible fear ofpersecution or torture, your case will be referred to an immigration court. In the court you will be allowed to seek asylum or withholding of removal based on fear of persecution: or withholding of removal under the Convention Against Torture. The USC!S District Director in charge of this detention facility will also consider whether you may be released from detention while you ore preparing for your hearing. If the asylum officer determines that you do not have a credible fear ofpersecution or torture, you may ask an Immigration Judge to review the decision. Ifyou are found not to

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A#: 209 438 557 Applicant Name: ABDI, HANAD MOHAMED AO: A. HURTAULT; ZNK093 Date of Interview: 11/21116 Page 12 of 12 have a credible fear ofpersecution or torture and you do not request review, you may be removed from the United States as soon as travel arrangements can be made. Do you have any questions?

Q: That is the end of the interview. Do you have any questions for me? A: No

End: 3:22 pm

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EXHIBIT B CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 290 23 ofof 37133

DEPARTMENT OF HOMELAND SECURITY

NOTICE TO APPEAR

In removal proceedings under section 240 of the Immigration and Nationality Act:

File No: A 209 438 557 In the Matter of:

Respondent: ABDI, HANAD MOHAMED M c/o: DHS ICE, Buffalo Federal Detention Facility, 4250 Federal Drive, Batavia, NY 14020 (Number, street, city and ZIP code)

l:>lJ You are an arriving alien. 0 You are an alien present in the United States who has not been admitted or paroled. 0 You have been admitted to the United States, but are removable for the reasons stated below. The Department of Homeland Security alleges that you:

1. You are not a citizen or national of the United States. 2. You are a native SOMALIA and a citizen of SOMALIA. 3. You APPLIED FOR ADMISSION TO THE United States at Brownsville, TX, on 10/12/2016. 4. You did not then possess or present a valid immigrant visa, reentry permit, entry document. border crossin

On the basis of the foregoing, it is charged that you are subject to removal from the of law: United States pursuant to the following provision(s) Section 212(a)(7)(A)(i)(l) of the Immigration and Nationality Act (Act), as amended, as immigrant admission, is not in possession who, at the time of application for of a valid unexpired immigrant visa, reentry permit, document required border crossing card, or other valid entry by the Act, and a valid unexpired passport, or nationality other suitable travel document, or document of identity as required under the regulations issued by and the Attorney General under section 211 (a) of the Act.

l:>ll This notice is being issued after an asylum officer has found that the respondent or torture. has demonstrated a credible fear of persecution

Ji:L Section 235(b)(1) order was vacated pursuant to: }<(_8 CFR 208.30 (f)• 0 8 CFR 235.3(b)(5)(iv)

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at: Batavia Immigration Court, 4250 Federal Drive, Room F108, Batavia, NY (Complete 14020 Address of Immigration Courl, including Room Number, if any) On To Be Del ermined at To Be Determined to show why you should not be removed from the United (Date) (Time) States based on the charge(s) set forth above. = Supervisory Asylum Officer

Date: tt\lem\.£( ,2-t> \ I.R,______(Ciy and State) DHS Form 1-862 (2/12) See reverse for important information Page 1 of 2 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 291 24 ofof 37133 Notice to Respondent Warning: Ao,y statement you make may be used against you in removal proceedings. Alien Registration: Th'1s copy of the Notice to Appear served upon you is evidence of your alien registration while you are under removal proceedings. You are required to carry it with you at aU times.

Representation: If you so choose, you may be represented in this proceeding, at no expense to authorized the Government, by an attorney or other individual and qualified to represent persons before the Executive Office for Immigration Review, pursuant to 8 CFR 1003.16. Unless you so hearing will be scheduled earlier than ten request, no days from the date of this notice, to allow you sufficient time to secure organizations who may counsel. A list of qualified attorneys and be available to represent you at no cost will be provided with this notice.

Conduct of the hearing: At the time of your hearing, you should bring with you any affidavits or other connection documents, which you desire to have considered in with your case. If you wish to have the testimony of any witnesses considered, you should arrange to have such witnesses present I hearing. at the At your hearing you will be given the opportunity to admit or deny any or all of the a!legatlons ln the Notice to Appear removable on the and that you are inadmissible or charges contained in the Notice to Appear. You will have an opportunity to present evidence on your own behalf, to examine any evidence presented by the Government, to object, on proper legal grounds, to the receipt of evidence and to cross examine any witnesses the At the conclusion of your presented by hearing, you have a right to appeal an adverse decision by the immigration judge. You will be advised by the immigration judge before whom you appear of any relief from removal for whlch you may appear eligible including the of departure voluntarily. You wiU be given a reasonable privilege opportunity to make any such application to the immigration judge.

Failure to appear: You are required to provide the DHS, in writing, with your full mailing address and telephone number. You must Court and the Department of Homeland notify the Immigration Security immediately by using Form EOIR·33 whenever you change course your address or telephone number during the of this proceeding. You will be provided with a copy of this form. Notices of hearing will be mailed to this address. If you do not submit 33 and do not otherwise provide an address Form EOIR· at which you may be reached during proceedings, then the Government with written notice shall not be required to provide you of your hearing. If you fail to attend the hearing at the time and place designated on this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained by the DHS. Mandatory Duty to Surrender for Removal: If you become subject to a final order of removal, you must surrender for removal listed on the internet at http://www.ice.gov/contactlero, to your local DHS office, as directed by DHS and required by statute and regulation. define when the Immigration regulations at 8 CFR 1241.1 removal order becomes administratively final. If you are granted voluntary departure and fail to depart the United States as required, fail post a bond in connection with voluntary departure, or fail to comply to with any other condition or term in connection with voluntary departure; surrender for removal on the next business you must day thereafter. If you do not surrender for removal as required, you relief for as will be ineligible for all forms of discretionary long as you remain in the United States and for ten years after departure or removal. This means you will be ineligible for asylum, cancellation of removal, voluntary departure, adjustment of status, change of nonimmigrant status, registry, and related waivers for this period. If you do not surrender for removal as required, you may also be criminally prosecuted under section 243 of the Immigration and Nationality Act (the Act). U.S. Citizenship Claims: If you believe you are a United States citizen, please advise DHS by calling at (855) 448-6903. the ICE Law Enforcement Support Center toll free

Request for Prompt Hearing To expedite a determination in my case, I request this Notice to Appear be filed with the Executive Office of Immigration Review as soon as possible. waive my right to a 10·day period prior to appearing 1 before an immigration judge and request my hearing be scheduled.

Before:

(Signature of Respondent) (Signature and Title of Immigration Officer)

Certificate of Service This Notice To Appear was served on the respondent by me on DEC g 8 2016 , in the following manner and in compliance with section 239(a)(1) of the Act.

o/{ In person 0 by certified mail, return receipt# requested 0 by regular mail Attached is a credible fear worksheet. §?(_Attached is a list of organizations and attorneys which provide free legal services.

The alien was provided oral notice, in the language, of h<;,md;.; the time and place of his or her hearing and of the consequences of faiKtoapp fp, (1.J? :J

(Sigrrawre or Kespondent, if Personally Served) • • (:!ignature and Tille of lmmigrat.6n Officer)

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EXHIBIT C CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 293 26 ofof 37133

DEPARTMENT OF HOMELAND SECURITY U.S. Immigration and Customs Enforcement

PAROLE ADVISAL AND SCHEDULING NOTIFICATION

Alien's Claimed Name(s) Oncluding AKAs) :.:Ab=d::.i,_,....:H:.:a::n::a:.:d:.....:.:M::.oh=am:::e:cct=------A#(s) .:::2.:..09=--.:4:.:3..::cB_5:::5:.:7______Detention Facility Name and Location Buffalo Federal Detention Facility Field Office Buffalo I BTV

NOTICE TO THE ALIEN

Because you have been determined to have a "credible fear' of persecution or torture, U.S. Immigration and Customs Enforcement (ICE) will consider whether to parole you from custody pending the resolution of your immigration proceedings. As an Asylum Officer may have already explained to you, ICE may grant you parole if you can establish to ICE's satisfaction: (1) your identity; (2) that you are likely to appear for all scheduled heartngs and enforcement appointments (including for removal from the United States if you are ordered removed); and (3) that you do not present a security risk to the United States or a danger to the community.

1) Documents that May Prove Identity Passport o Your original, valid passport OR o Copy of your passport AND one or more of the other identity documents listed here NationaiiD Card o Your original, valid national ID card OR o Copy of your nationaiiD card AND one or more of the other identity documents listed here Birth Certificate o Your original birth certificate AND one or more of the other identity documents listed here o Copy of your birth certificate AND one or more of the other identity documents listed here Affidavit (Letter) from a Person Who Can Confirm Your Identity o Must include your full name, your date of birth, your nine-digit A-number, and your country of origin o Must be signed by a lawful permanent resident (green card holder) or citizen of the United States of America and include a copy of the person's passport or green card o Must include the person's full name and her/his address and phone number(s} o Must state how and for how long he or she has known you

2) Documents that Mav Prove that You are Not a Flight Risk Affidavit (Letter) from a Person or Community Organization Who Will Support You o Must include your full name, your date of birth, your nine-digit A-number, and your country of origin o Must include the person's/organization's full name and her/his address and phone number(s) o Must be signed by a lawful permanent resident (green card holder) or citizen of the United States of America and include a copy of the person's passport or green card o Must state that you will reside at the address listed and that the person/organization is willing to support you - for example, provide you housing and food- while you are in immigration proceedings o Must include a copy of a utility or telephone bill, with the person'slorganization's name and current address matching the address of residence included in the affidavit o Can include details of any other ties that you have to where you will live (family, friends, etc.) In addition to the Affidavit of Sponsorship, you may also submit o Letters from others in the community where you will live, showing their support. Note: must include the writer's name, address, contact information, and immigration status. o Documentation of any legal, medical or social services you will receive upon release

ICE Form 71-012 (7112) Page 1 of2 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 294 27 ofof 37133

3) Documents that May Prove that Your are Not a Danger to the Community - · Evidence of acquittal or dismissal of any criminal charges - Certificates for rehabilitation classes or evidence of other positive accomplishments (completion of a degree or training, long-term employment, volunteer activities, activities with your place of worship) Affidavit attesting to your rehabilitation o Must Include your full name, your date of birth, your nine-digit A-number, and your country of origin o Must be signed by a lawful permanent resident (green card holder) or citizen of the United States of America and include a copy of her/his passport or green card o Must include the person's full name and her/his address and phone number(s) o Must state how and for how long he or she has known you o Must explain why she/he believes that you have been rehabilitated

If you would like ICE to consider any documents as part of its assessment whether to parole you from detention, you must provide those documents as soon as possible to allow ICE sufficient time to review the documents thoroughly before your interview. You may also request additional time to obtain documents for ICE's consideration, but should make that request as soon as possible. ICE has scheduled you for an interview to assess whether you meet these qualifications. That interview will take place at the time and place indicated below.

Your parole interview has been scheduled with an ICE officer at the following date and time:

12/15/2016 @ 2:00p.m. (Month, Day, Year) (Time- Indicate "a.m.' or "p.m.")

Please provide any paperwork you would like considered (or any request for additional time to gather paperNork) no later than

12/14/2016 , to: (Month, Day, Year)

DO M. Muehlig 4250 Federal Drive Batavia, NY 14020 Officer Name Address/City/State/Zip

+1 (585) 344-6500 +1 (585) 344-6674 Office Telephone Number Fax

(ICE Detention and Removal Operations Field Office Personnel: Indicate Manner in Which Alien Should Provide Documentation)

Following your interview, you will be notified in writing of ICE's decision, usually within 7 days. If your request is denied, you will receive a written explanation of the denial.

\12 Asylum Seeker's Signature: -.o/'-h/...'_=h.£1_...:....,,.,Yl===nJ=='------Date: 12/0B/2016 f I ICE Officer's Name: ..:.V_,_. _P::.:u::;l::.:c::.:i..:.n..:.i'------Language Used: .::Sc::oc::m::::a=.l=.i ______Interpreter Number (if applicable):

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EXHIBIT D CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 296 29 ofof 37133

Office ofEnforcement and Removal Operations

U.S. Department of Homeland Seeurity 130 Delaware Avenue Buflitlo. NY 14202

U.S. Immigration and Customs Enforcement

December 19,2016

ABDI, Hanad Mohamed C/0 Buffalo Federal Detention Facility 4250 Federal Drive Batavia, NY 14020

In Reference to: A #209 438 557

NOTIFICATION DECLINING TO GRANT PAROLE

Dear Mr. Abdi:

This letter is to inform you that U.S. Immigration and Customs Enforcement (ICE) has decided not to parole you from detention at this time. Under ICE policy, arriving aliens determined by an Asylum Officer to have a credible fear of persecution or torture are initially considered for parole. While the decision whether to grant parole is discretionary, ICE policy is generally to grant parole to aliens determined to have a credible fear if they establish their identity and that they pose neither a flight risk nor danger to the community.

As part of its determination whether to parole you, on December 15,2016 ICE conducted an initial interview with you. Your immigration files and any supplemental documentation that you provided were reviewed at that time. After reviewing all available information, ICE has determined that parole is not appropriate in your case at this time based on the following reason(s ):

I2SJ You have not established your identity to the satisfaction of ICE. I2SJ You did not present valid, government-issued documentation of identity, or any documents you submitted did not, to ICE's satisfaction, establish your identity. I2SJ You did not provide third-party verification of your identity, or any third-party information you provided did not, to ICE's satisfaction, establish your identity. I2SJ You did not, to ICE's satisfaction, establish your identity through credible statements.

0 You have not established to ICE's satisfaction that you are not a flight risk. 0 You failed to provide, to ICE's satisfaction, a valid U.S. address where you will reside while your immigration case is pending. 0 You did not establish, to ICE's satisfaction, substantial ties to the community. 0 Imposition of a bond or other conditions of parole would not ensure, to ICE's satisfaction, your appearance at required immigration hearings pending the outcome of your case. CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 297 30 ofof 37133

0 You have not established to ICE's satisfaction that you are not a danger to the community or U.S. security. In making this determination, ICE has taken into account any evidence of past criminal activity, activity contrary to U.S. national security interests, activity giving rise to concerns of public safety or danger to the community, disciplinary infractions or incidents, or other criminal or detention history that shows you have harmed or would likely harm yourself or others.

0 Additional exceptional, overriding factors (e.g., law enforcement interests or potential foreign policy consequences) in your case militate against parole, as follows:

0 ICE previously provided you with a written decision declining to grant parole, and you have failed to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE's previous determination.

You may request a redetermination of this decision. in writing, based upon changed circumstances in your case or additional documentation you would like ICE to consider. Such changed circumstances or documentation should relate to the reason(s) indicated above why ICE is not paroling you from custody at this time. For example, if you have not established your identity to ICE's satisfaction, you may wish to consider providing previously unfurnished government-issued documents such as · passports, birth certificates, or identity cards. Identity can also be established through written statements prepared by individuals whom you know in the United States and whose identity ICE can verify to its satisfaction. These statements should include the address of the person you know in the United States and evidence of his or her identity. Finally, if there are multiple grounds checked above, you should try to provide further evidence addressing each of them.

If you request redetermination of this decision, please direct your written request to the address above, include a copy of this letter and any other prior ICE written decision(s) declining to grant you parole, and clearly explain what changed circumstances or additional documents you would like considered. Failure to provide satisfactory documentation and explanation may result in a denial of your request for redetennination.

M1 ae . Phillips Field Office Director CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 298 31 ofof 37133

EXHIBIT E CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 299 32 ofof 37133

Office a/Enforcement and Removal Operations

LS. Department of Homeland Security 130 Delaw11re Avenue Buffalo. NY 14201

U.S. Immigration and Customs Enforcement

January 10, 2017

ABDI, Hanad Mohamed C/0 Buffalo Federal Detention Facility 4250 Federal Drive Batavia, NY 14020

In Reference to: A #209 438 557

NOTIFICATION DECLINING TO GRANT PAROLE

Dear Mr. Abdi:

As part of its detetmination whether to parole you, on December 15, 2016 ICE conducted an initial interview with you. Your immigration files and any supplemental documentation that you provided were reviewed at that time. After reviewing all available information, ICE has determined that parole is not appropriate in your case at this time based on the following reason(s):

[;g) You have not established your identity to the satisfaction of ICE. [;g) You did not present valid, government-issued documentation of identity, or any documents you submitted did not, to ICE's satisfaction, establish your identity .. [;g) You did not provide third-party verification of your identity, or any third-party information you provided did not, to ICE's satisfaction, establish your identity. [;g) You did not, to ICE's satisfaction; establish your identity through credible statements.

D You have not established to ICE's satisfaction that you are not a flight risk. 0 You failed to provide, to ICE's satisfaction, a valid U.S. address where you will reside while your immigration case is pending. 0 You did not establish, to ICE's satisfaction, substantial ties to the community. CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-5 Filed Filed 12/07/18 09/25/17 Page Page 300 33 ofof 37133

Imposition D of a bond or other conditions of parole would not ensure, to ICE's satisfaction, your appearance at required immigration hearings pending the outcome of your case.

You D have not established to ICE's satisfaction that you are not a danger to the community or U.S. security. In making this determination, ICE has taken into account any evidence of past criminal activity, activity contrary to U.S. national security interests, activity giving rise to concerns of public safety or danger to the community, disciplinary infractions or incidents, or other criminal or detention history that shows you have harmed or would likely harm yourself or others.

Additional D exceptional, overriding factors (e.g., law enforcement interests or potential foreign policy consequences) in your case militate against parole, as follows:

ICE previously IZ! provided you with a written decision declining to grant parole, and you have failed to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE's previous determination.

You may request a redetermination of this decision in writing, based upon changed circumstances in your case or additional documentation you would like ICE to consider. Such changed circumstances or documentation should relate to the reason(s) indicated above why ICE is not paroling you from custody at this time. For example, if you have not established your identity to ICE's satisfaction, you may wish to consider providing previously unfurnished government-issued documents such as passports, birth certificates, or identity cards. Identity can also be established through written statements prepared by individuals whom you know in the United States and whose identity ICE can verify to its satisfaction. These statements should include the address of the person you know in the United States and evidence of his or her identity. Finally, ifthere are multiple grounds checked above, you should try to provide further evidence addressing each of them. If you request redetermination of this decision, please direct your written request to the address above, include a copy of this letter and any other prior ICE written decision(s) declining to grant you parole, and clearly explain what changed circumstances or additional documents you would like considered. Failure to provide satisfactory documentation and explanation may result in a denial of your request for redetermination.

SincerelY,

( ( Thomas-Br - (A)Field Office Director CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-6 Filed Filed 12/07/18 09/25/17 Page Page 301 1 ofof 3716

EXHIBIT 5: DECLARATION OF ABDIRASHID AHMED MUSA

CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-6 Filed Filed 12/07/18 09/25/17 Page Page 302 2 ofof 3716

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, v. DECLARATION OF ABDIRASHID MUSA ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Case No. 17-cv-721 (EA W) Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF ABDIRASHID MUSA

I, Abdirashid Ahmed Musa, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is tme and correct:

1. My name is Abdirashid Ahmed Musa. My date ofbirth is June 1, 1989.

2. I was born in Bardhere, Somalia and I am a citizen of Somalia. I have been in the custody of Immigration and Customs Enforcement since January 1, 2017, when I sought asylum at the

U.S.-Mexico border because I was kidnapped and tortured in Somalia and I escaped for my life.

3. I got to Batavia around January 25, 2017. I had my credible fear interview a few weeks later, in Febmary. A few weeks after my first credible fear interview, the officers told me I passed and I asked them if I could get parole. There were two officers in the room. One of them said that because of the new government, parole is no longer available. But he said to know more, I should talk to my deportation officer.

1 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-6 Filed Filed 12/07/18 09/25/17 Page Page 303 3 ofof 3716

4. I never received any paper or letter from the government explaining what parole is or what

I should do to apply for parole. After I passed my credible fear interview, I asked my deportation

_____ Officer Ensminger, about parole. He said I should give him a support letter from family--'"'in=------

the U.S. and any identification I have from my country. It took me time to do this because the first

lawyer that I hired was not trustworthy and took my money, so I had to hire a second lawyer, Anne

Doebler. She submitted my request for parole in April I submitted a copy of my identification and

my birth certificate and a notarized letter from my cousin, who is a U.S. citizen and with whom I

will live if I am released.

5. I do not believe I was considered for parole until she made the request.

6. I was never interviewed about my parole request.

7. I used to ask Officer Ensminger about parole almost every week when he came into my

unit. He told me that because of the new government, parole was not likely to be possible.

8. My request for parole was denied in April. Attached as Exhibit A is a copy of the letter

denying my parole. I don't know the reason. Immigration did not explain why or say what I was

missing. I asked my deportation officer why, but he said he sends it somewhere else.

9. Since August, more people have been released on parole. I do not know what else

immigration wants, because they have never explained. But after speaking with others, I asked my

cousin to send me his driver's license, additional proof of his address, and my national ID card and

I submitted a second request for parole. I am awaiting a response. I have been detained for so long

now, and my next hearing is not until November 14, 2017. I feel like I am stranded here.

10. It is much harder to prepare my asylum case in detention. It is hard to reach people in

Somalia. Electricity and phones often do not work even in the capital, and my family is from far

outside the capital. In detention, I cannot use internet or social media to reach people.

2 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-6 Filed Filed 12/07/18 09/25/17 Page Page 304 4 ofof 3716

( ABDIRASHID AHMED MUSA Dated: September'_, r:; 201 7 • Batavia, NY

3 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-6 Filed Filed 12/07/18 09/25/17 Page Page 305 5 ofof 3716

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-6 Filed Filed 12/07/18 09/25/17 Page Page 306 6 ofof 3716

U.S. Dcpuaaeat ol Hoaade•d Scc1lri1y J30 Delaware A'WDJC Buftalo. N¢W York: l42:02 ··-;:;...

. ·: US. Immigration and Customs • Enforcement APR 1 9 2017 Anne E. Doebler, Esq. Rand BuHding Suite 1800 14 Lafayette Square Buffalo, NY 14203

RE: MU"SA, Abdi Ashid Ahmed A209 991 748

Dear Ms. Doebler,

This letter is in response to your recent correspondence requesting parole for yow- client, Ashid Ahmed Musa. After a careful review Abdi of the evidence you submitted and the file, your request for parole is denied. immigration

Tilo ophy Acting Field Office Director Buffalo, NY Attachments cc: File A209 991 748

Z:0/Z:0 39t'd t'tAt'lt'8 SL99t?t?ES8S CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-7 Filed Filed 12/07/18 09/25/17 Page Page 307 1 ofof 3717

EXHIBIT 6: MUKTAR MUSE MOHAMED

CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-7 Filed Filed 12/07/18 09/25/17 Page Page 308 2 ofof 3717

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, v. DECLARATION OF MUKTARMOHAMED ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Case No. 17-cv-721 (EAW) Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF MUKTAR MOHAMED

I, Muktar Muse Mohamed, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is tme and correct:

1. My name is Muktar Muse Mohamed. My date ofbirth is April26, 1997.

2. I was born in Kismayo, Somalia and I am a native and citizen of Somalia.

3. I have been in the custody oflmmigration and Customs Enforcement since January 1, 2017.

I sought asylum at the U.S.-Mexico border because in Somalia my life was in danger.

4. I had my credible fear interview on February 6, 2017, after I got to Batavia. About two weeks later, I was told that I had passed.

5. No one from immigration told me anything about parole after I passed my credible fear interview. I have never been given any paperwork or documents telling me what parole is or how

I can apply.

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6. About a week after I passed my credible fear interview, I asked my deportation officer how

I could apply for parole. He told me I could ask for parole from him or from the court. But he did not explain to me how I should apply or what documents I needed.

7. I requested parole with the help of my lawyer in April. I included my identification card; an affidavit from my lifelong friend, who is a U.S. citizen, and proof of his address and U.S. citizenship. My friend explained I will live with him if I am released.

8. But the deportation officer denied my request. Until now, I do not know why. Attached as

Exhibit A is a copy of the letter denying my parole. I do not speak English well so it is hard for me to communicate with my deportation officer, but I did try to ask him why I was denied. From what I understood, he said he had passed my request to his superior and the superior denied me.

9. I was never interviewed about my request for parole. I have not been interviewed by anyone from immigration since my credible fear interview in February.

10. In August and September, I have observed that more detainees have been released on parole than before. I do not know the reason for the change but since August there have been some who got parole.

11. My next court date is not until November 8, 2017. I am really struggling in detention. I am sick and I am desperate to get out of here. I have a job working five days a week, but the wage for detainees who work at Batavia is only one dollar a day. International calls are very expensive. The five dollars I earn in a week does not pay for even a two-minute call to Africa. The expense of calls and lack of internet has made it much harder for me to prepare my asylum case. I have not been able to contact the people who know what happened to me to get the evidence I need for my asylum case and that has affected me a lot.

2 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-7 Filed Filed l 12/07/18I 09/25/17 Page Page 310 4 ofof 3717

MUKTAR MUSE MOHAMED ·Dated: September _,\3 2017 Batavia, NY

3 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-7 Filed Filed 12/07/18 09/25/17 Page Page 311 5 ofof 3717

R LD\tYIDE

CERTIFICATE OF ACCURACY

STATE OF NEW YORK SS: COUNTY OF NEW YORK

I, Julia Zappi, Project Manager at Geneva Worldwide, Inc., being duly sworn, depose and say that Geneva Worldwide is a multilingual translation company. Geneva Worldwide provided the translation of the document below from the ENGLISH language into the SOMALI language. My signature confirms that the document has been examined, and has been deemed accurate and complete.

Regarding: [Declaration ofMukhtar Mohamed, Case No. 17 -cv-721 (EA W)]

This certificate issued by Geneva Worldwide, Inc. 256 West 38th Street-lOth Floor, New York N.Y. 10018.

Certified By

Sworn to and subscribed before me

201_).

Cra.fg · N t 8uck:::tein &IJI Public Ouafitied In York ew Yorke Commr 01 ounty ,ssJon f:xp. Ires 10/23!20 j_y

256 W. 38111 Street 10u1 Floor, New York, NY 10018 a PH: 212*255·8400 a FAX: 212·255·8409 www.genevaworldwlde.com CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-7 Filed Filed 12/07/18 09/25/17 Page Page 312 6 ofof 3717

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-7 Filed Filed 12/07/18 09/25/17 Page Page 313 7 ofof 3717

"''"'• . US. . ' Jmm'igradon ', and Customs . Enforcement •.-·-··--- APR 1 9 2017 Anne B. Doebler. Esq. Rand Building Suite 1800 14 Lafayette Square Buffalo, NY 14203

RE: MOl-lAMED, Muqtar A209 991 746

Dear Ms. Doebler,

This letter is in response to your recent correspondence requesting parole tbr Mohamed. After a careful review your client, Muqtar of the evidence :you submitted and the immigration request for parole is denied. file 1 your

Attachments cc: FHeA209 991 746

www.ke.gov SL99t>t>£SBS CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 314 1 ofof 3717

EXHIBIT 7: DECLARATION OF KOFFI SEWOUL

CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 315 2 ofof 3717

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, DECLARATION OF Petitioners, KOFFI SEWOUL v.

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; Case No. 17-cv-721 (EA W) THOMAS BROPHY, in his official capacity as Acting Director ofBuffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF KOFFI SEWOUL

I, Koffi Sewoul, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Koffi Sewoul. My date ofbirth is August 10, 1976. I am a citizen of Togo.

2. I have been in the custody of Immigration and Customs Enforcement at the Buffalo

Federal Detention Facility ("Batavia") since May 12, 2017.

3. After I passed my credible fear interview at the end of May, I was given a paper about parole that told me what to submit in order to request parole. Although I do not read or understand English well, I was not given a translation of the paper. I got another detainee who spoke French to try to translate it for me.

1 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 316 3 ofof 3717

4. After that, I gathered documents listed on the parole form and submitted them, including a copy of my birth certificate, my brother's United States passport, and an affidavit from my brother identifying me and stating that I could live with him if I were released on parole. I had a parole interview with a Deportation Officer around May 20, 2017.

5. I received a letter denying my parole dated June 15, 2017. It is attached as Exhibit A.

The form states that my parole interview happened on September 29, 2016, which is many months before I arrived at Batavia. It also has check marks stating that I did not establish my identity, did not establish that I am not a flight risk, did not establish that I am not a danger to the community, and that "additional, exceptional" factors militated against parole, specifically that

"no significant humanitarian reason or public benefit" existed.

6. I did not understand this denial, both because it had the wrong date for my interview and because I had submitted everything that I understood was necessary based on the form that I received. No one ever explained what was missing from my application or how I could fix it.

7. I am very disappointed and confused. After spending so much time in detention and then being told that I cannot be released, I have almost given up hope. I was imprisoned for a long

time in Togo and feared for\ ___my _ life there, but remaining detained here has also been very hard.

KOFFI SEWOUL Dated: September l.K_, 2017 Batavia, NY

2 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 317 4 ofof 3717

Affirmation of Translation

I, Ana-Sofia Calatrava, affirm, under the penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1) I am fluent in both English and French and competent to translate from English into French and vice versa.

2) I translated the within Declaration ofKoffi Sewoul in Abdi v. Duke, No. 17-cv-721 (EAW), from English to French. I certify that the translation is accurate and complete to the best of my abilities.

Dated: September 15, 2017 New York, New York

3 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 318 5 ofof 3717

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 319 6 ofof 3717 Ojfice and Removal Operations

li.S. Depa•·tment ot' Homeland Secm·it)' 130 Delaware Avenue Butfalo, NY 14202

U.S. Immigration

·,.o · and·Customs.C: .. En1orcement

Koffi C/0 Buffalo Federal Detention Facility 4250 Federal Drive Batavia, NY 14020

In Reference to: A209 408 l97

DECLINING TO GRANT PAROLE NOTJFICATIONI

Dear Mr. SEWOUL,

This letter is to inform you tl:lat U.S. Immigration and Customs Enforcement (ICE) has decided not to parole you from detentiort at this time. Under ICE policy, arriving aliens determined by an Asylum Officer to have a credible fear of persecution or torture are initially considered for parole. While the decision whether to grant parole is ICE policy is generally to grant parole to aliens determined to have a credible fear if they establish their identity and that they pose neither a flight risk nor danger to the community.

As part of its determination whether to parole you, on September 29, 2016, ICE conducted an initial interview with you. Your immigration files and any supplemental documentation that you provided were reviewed at that time, After reviewing all available information, ICE has determined that parole is not appropriate in your case at this time based on the following reason(s):

You have not established your identity to the satisfaction of ICE. · [8] You did not prese}lt government-issued documentation of or any documents you S\,lbmitted did not, to ICE's establish your identity. IZI You did not provide third-party verification of your identity, or any third-party information you provided did to ICE's satisfaction, establish your identity. [8] You did not, to ICE's satisfaction; establish your identity through credible statements.

You have not establishedto ICE's satisfaction that you are not a flight risk. 0 You failed to provide, to ICE's satisfaction, a valid U.S. address where you will reside while your immigration case is pending. IZ! You did not establish, to ICE's satisfaction, substantial ties to the community. of a bond or other conditions ofparole would not ensure, to ICE's satisfaction, your appearance at required immigration hearings pending the outcome of your case. CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-8 Filed Filed 12/07/18 09/25/17 Page Page 320 7 ofof 3717

IZI You have not established to ICE's satisfaction that you are not a danger to the community or U.S. security. In making this determination, ICE has taken into account any evidence of past criminal activity, activlty contrary to U.S. national security interests, activity giving rise to concerns of public safety or danger to the community, disciplinary infractions or incidents, or other criminal or detention history that shows you have harmed or would likely harm yourself or others.

IZI Additional exceptional, overriding factors (e.g., law enforcement interests or potential foreign policy consequences) case militate against parole, as follows:

No significant humanitarian reason or public benefit exists to grant parole.

D ICE previously provided you with a written decision declining to grant parole, and you have failed to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE's previous determination.

You may request a redete'rmination of this decision in writing, based upon changed circumstances in your case or additional documentation you would like ICE to consider. Such changed circumstances or documentation should re.late to the reason(s) indicated above why ICE is not paroling you from custody at this time. For if you have not established your identity to ICE's satisfaction, you may wish to consider providing previously unfurnished government-issued documents such as passports, birth certificates, or identity cards. Identity can also be established through written statements prepared by incUviduals whom you know in the United States and whose identity ICE can verify to its satisfaction. Tpese statements should include the address of the person you know in the United States and evidence of his or her identity. Finally, ifthere are multiple grounds checked above, you should try to provide further evidence addressing each of them.

If you request redetermination of this decision, please direct your written request to the address above, include a copy ofthts letter and any other prior ICE written decision(s) declining to grant you parole, and clearly explain what changed circumstances or additional documents you would like considered. Failure to provide satisfactory documentation and may result in a denial of your request for redetermination. CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-9 Filed Filed 12/07/18 09/25/17 Page Page 321 1 ofof 3717

EXHIBIT 8: DECLARATION OF JOSEPH MILOU BAPTISTE

CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-9 Filed Filed 12/07/18 09/25/17 Page Page 322 2 ofof 3717

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, v. DECLARATION OF JOSEPH BAPTISTE ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Case No. 17-cv-721 (EA W) Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General ofthe United States,

Respondents.

DECLARATION OF JOSEPH BAPTISTE

I, Joseph Milou Baptiste, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Joseph Milou Baptiste. My date of birth is May 18, 1974. I am a citizen of

Haiti.

2. I have been in the custody of Immigration and Customs Enforcement since November,

2016, when my wife and I sought asylum at the U.S.-Mexico border. We faced the same danger to our lives in Haiti. My wife was released on parole shortly after we arrived at the border, and she is living with my brother and his wife in Florida. My brother is a U.S. citizen. My wife gave birth to our child two months ago in Florida, but I was not there because immigration has not released me on parole.

1 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-9 Filed Filed 12/07/18 09/25/17 Page Page 323 3 ofof 3717

3. I got to Batavia in December, 2016 but I did not have a credible fear interview until more

than two months later. I knew other detainees who had arrived earlier and passed their credible

______fear_interview_before_me._When_the:)L ______

immigration needed from their families in order to grant parole. But when I passed my credible

fear interview in February, no one gave me that paper. I did not receive any paperwork about

parole.

4. I was able to hire a lawyer to represent me in my parole request. He explained what was

needed and he filed the request for me in March. It included letters from my brother and proof of

his U.S. citizenship, and letters and proof of status from my cousin and a good friend. It also

included a copy of my passport.

5. I was not interviewed about my parole request. I did approach my deportation officer to

ask whether I would be released or not, but he told me it depends on a person's profile.

6. My parole request was denied in April. No one explained to me why it was denied;

immigration just sent a letter saying it was denied. A copy of the letter is attached as Exhibit A. I

have not spoken to the lawyer who represented me in that request since the denial letter.

7. In August, several people in my unit were granted parole. This was a change from before,

when everyone seemed to be denied. My wife had given birth in July and she has been having a

hard time in Florida because she is staying with my family and she is not comfortable. I decided

to ask for parole again, though I no longer have a lawyer.

8. I submitted everything from my first request as well as documents from my father who has

lawful status in the U.S. and some other letters. Several weeks after I asked for parole the second

time, my deportation officer said he needed my passport. My family in Florida mailed it right

away. They could have mailed it sooner ifl had known that was necessary.

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9. I have not received a response to my second parole request. No one has interviewed me.

10. I want to be with my wife and child. I am very concerned for my wife, who is alone with a young baby.

Dated: September r&., 2017 Batavia, NY

3 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-9 Filed Filed 12/07/18 09/25/17 Page Page 325 5 ofof 3717 E VIJO R LDVVIOE

CERTIFICATE OF ACCURACY

STATE OF NEW YORK SS: COUNTY OF NEW YORK

I, Julia Project Manager at Geneva Worldwide, being duly swom, depose and say that Geneva Worldwide is a multilingual translation company. Geneva Worldwide provided the translation of the document below from the ENGLISH language into the HAITIAN CREOLE language. My signature confirms that the document has been examined, and has been deemed accurate and complete.

Regarding: [Declaration of Joseph Baptiste, Case No. 17-cv-721 (EAW)

This certificate issued by Geneva Worldwide, Inc. 256 West 38th Street- 10111 Floor, New York N.Y. 10018.

Certified By

Sworn to and subscribed before me

This f S day of f l(;vt& 201_] {t;:' Notary Public

256 W. 38th Street 10th Floor, New York, NY 10018 11 PH: 212·255-8400 • FAX: 212·255·8409 www.genevaworldwlde.com CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-9 Filed Filed 12/07/18 09/25/17 Page Page 326 6 ofof 3717

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-9 Filed Filed 12/07/18 09/25/17 Page Page 327 7 ofof 3717

OJlice of£flforcement and kuttloval Opera: U.S. ofHumelll.Dd Seeurlty 130 Dltlawar@Avcnue Bufthlo, 'Nt.\W Yot·k 14202 U.S. Immigration and Customs Enforcement

Matthew Borowski, Esq. 295 Main St. Suite 836 NY 14203

RE: BAPTISTE, Joseph Miiou A209 763 687

Dear Mr. Borowski,

This letter is inr"sponse to your l'e¢itlt correspondence requesting parole for your client, Joseph Milou BAPTISTE. After a careful :review of the evidence you S1.ibmitted and the immigration file, your request for parole is denied.

Th sP. ophy Acting Field Office Director Buffalo, NY Attachments cc: File A209 763 687

T0/t0 39'17d 9L99!?1?8989 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-10 Filed Filed 12/07/18 09/25/17 Page Page 328 1 of of 371 6

EXHIBIT 9: DECLARATION OF DIEUSAUVEUR FLEZINORD

CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-10 Filed Filed 12/07/18 09/25/17 Page Page 329 2 of of 371 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, DECLARATION OF Petitioners, DIEUSAUVEUR v. FLEZINORD

ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his Case No. 17-cv-721 (EAW) official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF DIEUSAUVEUR FLEZINORD

I, Dieusauveur Flezinord, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Dieusauveur Flezinord. My date ofbirth is January 1, 1987. I am a citizen of

Haiti.

2. I have been in the custody of Immigration and Customs Enforcement at the Buffalo

Federal Detention Facility ("Batavia") since December 2016.

3. I have been denied parole twice, without any explanation. After I was denied the first time, my mother passed away in Haiti. I had not been able to talk to her from the jail. Now I cannot eat or sleep and I am losing weight.

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4. After I passed my credible fear interview at the beginning of February, 2017, I was given

a paper telling me how to request parole. Although I do not read or understand English well, I

------was-noLgiv:en-a-translation-of-the-paper.--Lgotanother-detainee-to-translate-iLfor_me.

5. After that, I hired a lawyer to gather documents listed on the parole form and submitted

them to immigration, including copies of my Haitian passport, my uncle's United States

passport, and an affidavit from my uncle stating that I could live with him if I were released on

parole. I do not remember having any parole interview regarding my application.

6. I received a letter denying my parole dated March 31, 2017. It is attached as Exhibit A. It

did not explain why my parole application was denied and it did not explain anything I could do

to fix it.

7. I reapplied for parole in August of 2017, after the immigration judge said I should try

again because I have a lot of family in the U.S., but I was denied again. The second denial letter

was also very short and did not say why I was being denied.

8. I have an upcoming asylum hearing in December. I would be much better able to prepare

for that hearing if I were released on parole. I could work directly with my lawyer and my family

to contact other family members and friends in Haiti to collect documents and information in

support of my case, which I cannot do at Batavia.

·-· DIEUSAUVEUR FLEZINORD Dated: September 19_, 2017 Batavia, NY

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, Petitioner, v.

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his Case No. 17-cv-721 (EAW) official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

AFFIRMATION OF TRANSLATION

I, Paige Austin, declare under penalty of perjury, that the following is true and correct:

1. My name is Paige Austin. I am lawyer employed by theN ew York Civil Liberties Union, located at 125 Broad Street, New York, NY 10004, and admitted to practice law in New York State.

2. On Sep. 19, 2017, I provided Mr. Dieusauveur Flezinord with a Haitian Creole interpretation of the foregoing affidavit via a telephonic interpreter service called Geneva Worldwide Telephone Services (phone number 1-844-313-1563). The identification number ofthe Somali interpreter was 22308.

3. Mr. Flezinord affinned the contents were tme and correct prior to signing.

I, Paige Austin, declare under penalty of perjury, pursuant to Title 28, Section 1746 of the United States Code, that the foregoing is true and correct.

Executed this '7}J day of September, 2017 New York, NY CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-10 Filed Filed 12/07/18 09/25/17 Page Page 332 5 of of 371 6

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-10 Filed Filed 12/07/18 09/25/17 Page Page 333 6 of of 371 6

l.:.s. l)<'fl:111nH'II( of llnmdatlil St:,•nrity I:\(} ,\ V\:1 111\' ll;tiTilin. New York I -12M

U.S. Imm.igration and CustoJns Enforce1nent

MAR 3 i 2017 I.: nv Oftke or Mall hew l3urowski Mmth(,;w K. Borowski, Esq. 21)5 Mnin St. Suite 1060 Bumtlo, NY, 14203

RE: FLEZINORD. Chrisner All 209 &92 9X4

Dc;ar M.r. Rorowski.

!'his letter is in rl.'sponsc to y(H lr rt:ct:nl correspondence J'(.':q\lest ing paroic fo,. your dic.!nt, Dit:usauvcur FLEZJNOl{D. Alh;r a careful or the evidence ym.1 submitlt:d and the immigration tile. your f(>r parole is dt!nied.

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EXHIBIT 10: DECLARATION OF SAIKOU TOURAY

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, DECLARATION OF Petitioners, SAIKOU TOURAY v.

ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Case No. 17-cv-721 (EAW) Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF SAIKOU TOURAY

I, Saikou Touray, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Saikou Touray. I am a citizen of Gambia and my date of birth is Oct. 5, 1988.

2. I sought asylum in the U.S. in late December, 2016, and I have been in the custody of

Immigration and Customs Enforcement at the Buffalo Federal Detention Facility ("Batavia") since

January. I have been taken to the hospital several times since entering ICE custody and continue to be in a great deal of pain because of my ears. I have no hearing in my right ear and a lot of pain in my left ear, because the eardrum is perforated and infected. I am very concerned that without adequate medical treatment I could lose hearing permanently in my left ear also. My family is

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ready to take me to an ear specialist in New York if I am released, but ICE has denied my parole

without any explanation or consideration of my current medical situation.

------3.------my credihle-fear-interview.-Lwas_noL __ --·-: I

told anything about parole nor was I given any paperwork telling me how to apply for parole. Only

when I asked myself was I told I needed to talk to my deportation officer.

4. But when I asked my deportation officer, Officer Ensminger, about parole, he said he

cannot give me parole and I have to see the judge. At my next immigration court date, I asked the

judge but he said I have to ask my deportation officer. When I asked my deportation officer again,

he said there is only a small chance I will get parole but I should bring him some paperwork like

my birth certificate, a copy of my passport, driver's license and a sponsor letter. I gave him

everything that he requested, including a copy of my Gambian passport and the US passport,

license and tax returns for the cousin I will live with inNew York City if I am released. But about

a month later, my request was denied. The denial that ICE gave me is attached here as Exhibit A.

It does not say why my request was denied. My deportation officer also never told me why.

5. Last month, I spoke again to my deportation officer and gave him medical records

explaining my hearing situation. He said he needs a report from the medical department at the jail

to look again at my parole, but that he will not request this report because that is not his job. I went

to the medical department myself and spoke with a supervisor about getting such a report, but he

said he cannot give me any paperwork because if the deportation officer wants it he must ask. With

everyone refusing to help me get the report I need for my parole, I do not know what to do.

6. My individual hearing in my asylum case was supposed to be held in October but a few

weeks ago I got a letter saying it was moved to November 16. Without parole, I fear I will be here

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a long time without adequate medical treatment and could lose my hearing all together. I don't want to not be able to hear at all.

Dated: September JQ, 2017 Batavia, NY

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, Petitioner, v.

ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his Case No. 17-cv-721 (EAW) official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

AFFIRMATION OF TRANSLATION

I, Paige Austin, declare under penalty of perjury, that the following is true and correct:

1. My name is Paige Austin. I am lawyer employed by theNew York Civil Liberties Union, located at 125 Broad Street, New York, NY 10004, and admitted to practice law in New York State.

2. On Sep. 18, 2017, I provided Mr. Saikou Touray with a Soninke interpretation of the foregoing affidavit via a telephonic interpreter service called Language Line Solutions Personal Interpreter Services (phone number 1-888-808-9008). The identification number of the Soninke interpreter was 113273.

3. Mr. Touray affinned the contents were true and correct prior to signing.

I, Paige Austin, declare under penalty of perjury, pursuant to Title 28, Section 1746 of the United States Code, that the foregoing is true and correct.

Executed this 22_ day of September, 2017 NewYork,NY CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-11 Filed Filed 12/07/18 09/25/17 Page Page 339 6 of of 371 7

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-11 Filed Filed 12/07/18 09/25/17 Page Page 340 7 of of 371 7 Office of Enforcement and Removal Operations

U.S. Department of Homeland Security 130 DelaWar-e venue Buffalo. New York 14202

U.S. Immigration and Customs Enforcement

APR ·2 0 2017 TOURA Y, Saikou 4250 Federal Drive Batavia, NY 14020

RE: Request for Parole

Dear Mr. Touray,

This letter is in response to your recent correspondence requesting parole. After a careful review of the evidence you submitted and the immigration file, your request for parole is denied.

Thomas P. Brophy Acting Field Office Director Buffalo, NY

Attachments cc: File A209 990 616

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EXHIBIT 11: DECLARATION OF SALAD SURAW ABDI

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, DECLARATION OF v. SALAD SURA W ABDI

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Case No. 17-cv-721 (EAW) Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator ofthe Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF SALAD SURA W ABDI

I, Salad Suraw Abdi, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Salad Suraw Abdi. I am a citizen of Somalia and my date of birth is February

20, 1993.

2. I sought asylum in the U.S. on January 1, 2017, and I am now in the custody of Immigration and Customs Enforcement at the Buffalo Federal Detention Facility ("Batavia"). I passed my credible fear interview in February, but I was not told I could apply for parole nor was I given any paper saying how to apply. I found out about parole from other detainees.

3. Around March, I filled out a request form which is available in every unit to communicate with immigration. I used that form to ask for parole. The form asks for your name and A number,

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so that was the only information I provided. The next time my deportation officer, Officer

Ensminger, came to my unit he said I could not request parole because it does not exist. He told me even if I applied for it I would not get it because it does not exist now. He said it is closed.

4. Still, I kept asking him every time he came to our unit if I could get parole. He came once a week and for several months I asked him every week. He always told me the person in charge of parole does not allow me to apply.

5. I have never received a written letter or paper denying my parole. My deportation officer has only told me verbally it is not possible for me to get parole.

6. I have friends and relatives in the Midwest who are Lawful Permanent Residents and U.S. citizens and who are willing to give me a place to stay and to help me financially. I could also get my identity documents through them. But my deportation officer never asked me for that kind of documents, so I have not gotten those or given them to my deportation officer.

7. About three weeks ago, I wrote a letter to my deportation officer and again asked for release on parole. I explained my health problems. I have asthma and breathing problems and so much pain in my knees that I cannot stand. I also get very bad headaches that make my dizzy and give me nose bleeds. My headaches become worse when I think about my situation and my family. My condition has gotten worse at Batavia. I have to take medication to sleep now from all the stress and pain. I have not received an answer to my letter yet.

8. I lost my asylum case before the immigration judge in July. I am appealing now. It was very hard for me to prepare my case in detention and without a lawyer. Phone calls are very expensive and it is hard to contact people. My headaches and health problems also made it difficult to prepare and to testify. If I were not incarcerated, I would have been able to obtain and submit

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3 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-12 Filed Filed 12/07/18 09/25/17 Page Page 345 5 of of 371 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, Petitioner, v.

ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his Case No. 17-cv-721 (EAW) official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

AFFIRMATION OF TRANSLATION

I, Paige Austin, declare under penalty of perjury, that the following is true and correct:

1. My name is Paige Austin. I am lawyer employed by the New York Civil Liberties Union, located at 125 Broad Street, New York, NY 10004, and admitted to practice law in New York State.

2. On Sep. 18,2017, I provided Mr. Salad Suraw Abdi with a Somali interpretation ofthe foregoing affidavit via a telephonic interpreter service called Language Line Solutions Personal Interpreter Services (phone number 1-888-808-9008). The identification number ofthe Somali interpreter was 22145.

3. Mr. Suraw Abdi affirmed the contents were true and correct prior to signing.

I, Paige Austin, declare under penalty of perjury, pursuant to Title 28, Section 1746 of the United States Code, that the foregoing is true and correct.

Executed this 1P day of September, 2017 New York, NY CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-13 Filed Filed 12/07/18 09/25/17 Page Page 346 1 of of 371 7

EXHIBIT 12: DECLARATION OF MUHAMED AHMED HIRSI

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, v. DECLARATION OF MUHAMED HIRSI ELAINE DUKE, in her official capacity as Acting Secretary of U.S. Department ofHomeland Security; THOMAS BROPHY, in his official capacity as Acting Case No. 17-cv-721 (EAW) Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF MUHAMED HIRSI

I, Muhamed Ahmed Hirsi, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Muhamed Ahmed Hirsi. My date of birth is June 10, 1986. I am a citizen of

Somalia.

2. I have been in the custody of Immigration and Customs Enforcement since September,

2016. I sought asylum at the U.S.-Mexico border because I was not safe in Somalia.

3. In October, 2016, immigration gave me a paper about parole. I had an interview with the officer and he asked me ifi read the paper about parole and ifi had any documents for parole. One of my very good friends in Minnesota was working to send me the documents, so I asked for a few more weeks. But when I went back a few days later the officer had already denied my parole.

4. My friend finally sent me his letter, driver's license, lease, tax returns, and other proof about where I would live if released. After I got the documents, I requested parole the way that the

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paper said to. I waited several months for a response. I used to ask my deportation officer, Officer

McCarten, what was happening and he said he sent the papers to Buffalo and was waiting.

5. ____But so there isn_Q parok, ______I try to fight your case in court." We could all see the signs that parole was ending. I remember my deportation officer also said, "this new government is not giving parole so forget about parole."

6. Other detainees who carne after me, in January and February, were also told by their

deportation officers this government is not giving parole now. One of my friends in my unit, who is also Somali, arrived at the end of January and has a different deportation officer. My friend was not given a paper about how to ask for parole, like the one I had gotten in October. He asked his

deportation officer and his deportation officer said they don't give parole now.

7. From what I have seen, I think that for several months after January, 2017, immigration

did not give the paper about parole to most new detainees.

8. After I hired a lawyer, Siana McLean, she received a letter denying my parole request. It

did not explain why. The letter is attached as Exhibit A. My lawyer wrote to immigration twice in

April asking for my original birth certificate (which immigration has in their possession) and a reconsideration of my parole. But they continued to deny me parole.

9. In June, I lost my asylum case. My lawyer is filing my appeal to the Board oflrnrnigration

appeals now. I am certain the outcome in my case would have been different ifl had gotten parole.

If I were released, I could gather more support and evidence for my case. It is difficult to reach people in Somalia from inside the jail so I had to rely on my friend in the U.S., who is busy and who has not lived in Somalia in a long time, to reach witnesses, which was not easy for him. The judge said I did not show enough evidence, but if I were released I could do much more to

communicate with people, ask for help, and get the proof that I need.

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MUHAMED AHMED HIRSI Dated: September l_l, 201 7 Batavia, NY

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EXHIBIT A 02/27/2017 18:07 FAX 001/002 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-13 Filed Filed 12/07/18 09/25/17 Page Page 351 6 of of 371 7

U.S. l)cp:ortmcnl. of Homd:ontl Sct•nrit)' •1250 Federal Drive Batavill, NY 14020

U.S. lmmignJtion and Customs

Facsimile Transmission

To: Siilllil .1. McL.can. Esq. F:1x Nun1hcr: 71 ii-41i2-4455

!'rum: M. McCartan, DO Fax Nttmber: 5S5-.'l44-6674 .. ------PIHJIW Numb,or: 585·344-6560 ...... ,,.______Number \>I' pages

Attn: Ms. Mc.Lean,

Parole request response for; /\209416 861 02/27/2017 16:07 FAX 141002/002 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-13 Filed Filed 12/07/18 09/25/17 Page Page 352 7 of of 371 7

t .. :.'-,. u!' '\.(j i:'kL,l'V'I';'l'l'\'' .. ...,,..

FEB 2 7 2017 Siam.1 l McLt'iUJ, Esq. 5488 Sheridan Drive, Suite 500 Buffilln, NY 1422 I

Re: Muhamcd AIHncd liiRSI i\.209 416 861

De:tr Ms. McL<:tm:

This is inr

Allachmcnls cc: A-File CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-14 Filed Filed 12/07/18 09/25/17 Page Page 353 1 of of 371 4

EXHIBIT 13: DECLARATION OF AHMED MOHAMED AHMED

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, v. DECLARATION OF AHMED MOHAMED ELAINE DUKE, in her official capacity as Acting AHMED Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Case No. 17-cv-721 (EAW) Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF AHMED MOHAMED AHMED

I, Ahmed Mohamed Ahmed, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Ahmed Mohamed Ahmed. My date of birth is April 13, 1995. I am from

Goryoley in Somalia. I have been at the Buffalo Federal Detention Facility ("Batavia") since

January, after I sought asylum at the U.S. border. I fled Somalia after nearly being killed three times by Al Shabaab, including in a bomb attack on my family's home that killed my wife, brother and father.

2. The Friday after I was given my Notice to Appear, I asked my deportation officer, Officer

Muehlig, about parole. I knew another Somali detainee who arrived at Batavia in September, 2016.

Officer Muehlig had asked for his ID to give him parole, but when my friend brought his ID in

February Officer Muehlig said there was no more parole. When I asked, he told me the same thing.

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He said everything has changed, there is a new president now and parole is stopped. But I had

heard of other people who got a paper about parole, so the next week I asked him again. He said

trust me, there is no parole unless you are very sick. He said if you want you can give me the

request and I will send it, but I guarantee that they will deny you.

3. I have a cousin who is a Lawful Permanent Resident of the U.S. and lives in Arizona and

with whom I would live. ICE already had a color copy of my birth certificate from the border. But

because my deportation officer said that there is no parole, I did not collect my support letters or

other evidence. I did not see any way that I could get parole. He is my deportation officer and he

has the power to release me or not. Also, I saw many other people denied parole and not given any reason.

4. But then the situation appeared to change this summer. Several people were released on

parole in August. I have been waiting to talk to my deportation officer since then so that I can ask

for parole again, but I have not seen him.

5. I have had difficulties preparing my case from detention. My family in Somalia sent me

evidence but the DHL envelope was sent via Kenya, because DHL does not have a main branch in Somalia. I do not have a lawyer and I am not sure how to explain this to the judge or if he will understand.

6. I would be able to gather much more evidence if I were out. A lot of people know what happened to me, but I have only been able to get a few letters from friends and my uncle. My

surviving family fled the city where we lived after our house was bombed. When I call my family

and ask them to contact witnesses, it is often hard for them to find the person. They are scared to go back there. The calls are expensive; reception is poor; and the time difference makes ,it difficult to reach people. I believe that if I were released, I could win asylum but in here, I am not sure.

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AHMED MOHAMED AHMED Dated: September I!, 20 1? Batavia, NY

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EXHIBIT 14: DECLARATION OF ABDIRAHMAN ELMI NOR

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated,

Petitioners, v. DECLARATION OF ABDIRAHMAN ELMI ELAINE DUKE, in her official capacity as Acting NOR Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Case No. 17-cv-721 (EAW) Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

DECLARATION OF ABDIRAHMAN ELMI NOR

I, Abdirahman Elmi Nor, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct:

1. My name is Abdirahman Elmi Nor. My date of birth is July 23, 1994. I am a citizen of

Somalia. I have been in the custody of Immigration and Customs Enforcement since January 1,

2017, when I sought asylum at the U.S.-Mexico border. I have been at Batavia since around

January 25, 2017.

2. When immigration told me I passed my credible fear interview in February, I asked about being released on parole. But the officer just told me to sign the documents. He said there is no parole, so sign the paper and go. I did not feel I could ask him questions or say anything in response, because I come from a different situation with the authorities. In Somalia one is very scared to say

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anything back to the authorities when they speak to you. Also, I was new here in the United States.

I did not know anything about the rules or the laws.

3. I learned about parole from another detainee from Somalia. My aunt is a Lawful Permanent

Resident in Nebraska and she was ready to receive me and have me live with her. She sent me a notarized letter, her driver’s license and Lawful Permanent Resident card, and proof of her address.

My family also sent me copies of my identity documents from Somalia. Every time I saw my deportation officer, Officer Ensminger, I asked him about parole. Because of the language barrier,

I cannot read or write English so I did not request anything in writing. But I gave him the documents and with my limited English I would always ask him for parole. Most of the time, he would respond that there is no parole. If I asked him if there is hope, he would use a hand gesture

I understood to mean very, very small.

4. In May, I received a letter denying my parole. It is attached as Exhibit A. An Eritrean detainee explained it to me using sign language.

5. My health problems have gotten a lot worse in the last three months. I have a hernia and I have trouble sleeping from the pain and the stress of my situation and feeling alone and helpless here. In August, I collapsed from abdominal pain and was taken to the hospital. I ask the medical department all the time for medication for my hernia, but all they give me is Ibuprofen and it does not help.

6. It has been very hard for me in detention. Because of the language, I cannot speak with anyone. I feel very alone. My asylum hearing is coming up on September 27, but it is impossible for me to get the papers I need to prepare my case and present evidence. The judge has asked me to bring proof, but from inside jail I cannot contact anybody to get this proof.

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Dated: 2017 Batavia, NY

3 CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-15 Filed Filed 12/07/18 09/25/17 Page Page 361 5 of of 371 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, Petitioner, v.

ELAINE DUKE, in her official capacity as Acting Secretary ofU.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his Case No. 17-cv-721 (EAW) official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,

Respondents.

AFFIRMATION OF TRANSLATION

I, Paige Austin, declare under penalty of perjury, that the following is true and correct:

1. My name is Paige Austin. I am lawyer employed by theNew York Civil Liberties Union, located at 125 Broad Street, New York, NY 10004, and admitted to practice law in New York State.

2. On Sep. 19, 2017, I provided Mr. Abdirahman Elmi Nor with a Somali interpretation of the foregoing affidavit via a telephonic interpreter service called Geneva Worldwide Telephonic Services (phone number 1-844-313-1563). The identification number ofthe Somali interpreter was 20447.

3. Mr. Nor affirmed the contents were true and correct prior to signing.

I, Paige Austin, declare under penalty of perjury, pursuant to Title 28, Section 1746 of the United States Code, that the foregoing is true and correct.

Executed this <[,Oday of September, 2017 New York, NY CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-15 Filed Filed 12/07/18 09/25/17 Page Page 362 6 of of 371 7

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-15 Filed Filed 12/07/18 09/25/17 Page Page 363 7 of of 371 7 Office ofEnforcement and Removal Operations

U.S. Department of Homeland Security 130 Delaware Avenue Buffido,NewYmk 14202 u.s. Immigration and Customs fmforcement

NOR, Abdirahman 4250 Federal Drive Batavia, NY 14020

RE: Request for Parole

Dear Mr. Nor,

This letter is in response to your recent correspondence requesting parole. After a careful review of the evidence you submitted and the immigration file, your request for parole is denied.

om rophy Acting Field Office Director Buffalo, NY

Attachments cc: File A209 991 747

www.ice.gov CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-16 Filed Filed 12/07/18 09/25/17 Page Page 364 1 of of 371 8

EXHIBIT 15: DECLARATION OF DAYRON HERNANDEZ

CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-16 Filed Filed 12/07/18 09/25/17 Page Page 365 2 of of 371 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

HANAD ABDI; JOHAN BARRIOS RAMOS; on behalf of himself and all others similarly situated, Petitioner, v. DECLARATION OF ELAINE DUKE, in her official capacity as Acting DA YRON HERNANDEZ Secretary of U.S. Department ofHorneland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of!mmigration and Customs Enforcement; JEFFREY SEARLS, in his official capacity as Acting Administrator of the Buffalo Federal Detention Facility, and JEFFERSON in his official capacity as Attorney General of the United States,

Respondents,

DECLARATION Q¥ DA YRON !I.ERNANDEZ

that the following is true and correct:

1. My name is Dayron Hernandez Gutierrez. My date of birth is June 30} 1989. I am a

citizen of Cuba.

I was in the custody of Immigration and Customs Enforcement ("ICE") at the Buffalo

was released on parole after requesting it a third time. ICE had denied two earlier requests for

parole.

3. Afier I passed my credible fear interview in February, I was given a paper about parole in

English and the officer said my lawyer should send in the papers listed there. An immigration

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official told me that I would have an interview for my parole at a particular date and time. But the time came and they never called me; nothing happened.

4. Later, in early March, I told a deportation officer who visited my unit regularly, Officer

Ensminger, that I was not called for my interview. He told me the person who does those interviews was not there at the jail but our conversation right then would be my interview.

5. Officer Ensminger asked me if I had any documents for parole. I told him that my lawyer had submitted everything; I did not have copies. Officer Ensminger said he had not received any documents for me. But when I called my family and my lawyer, they confirmed the documents were sent. A few days later, I talked to my deportation officer again and that time he said he had the documents.

6. The documents in support of my parole request included my birth certificate and proof of where I would live) with a cousin who is a Lawful Permanent Resident of the U.S. My cousin sent everything we understood was necessary.

7. A few days later, the deportation officer responded and said I was denied. My denial letter included a series of check boxes listing possible reasons for denial, and the only one that was marked in my case was the box labeled "additional exceptional, overriding factors" that

"militate against with a line stating that I "do not meet the criteria of urgent humanitarian or significant public benefit/' The letter, dated March 6! 2017, is attached as

Exhibit A.

8. Another detainee from Cuba arrived one week before me and was in a tmit next to n1ine.

Around the srune time I was first denied paro]e, Officer Ensminger told my friend that there was no more parole, either on personal recognizance or on bond. The other Cuban detainees were all told similar things.

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9. I applied for parole again twice after my first denial. The second time, about three months agos I was again denied. My third request was granted and I was custody on

September 14, 2017. I do not know why immigration changed its mind now since I had already submitted aU the necessary evidence months ago, including proof of my identity and where I would live. But since I saw that many more people were being released on parole than before.

10. incarcerated for nine months was very difficult for r.ne. I suffered emotionally and physically and it was much n10re difficult to prepare my asylum case in detention. Many people in detention lose because the judge says they do not have enough Cuba is a very tough country to get documents tram, whether the hospital, police or other sources. From outside of custody, I will be much better able to prepare my case f111ly.

Dated: 20, 2017 Miami, FL

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Affirmation of Translation

I, Desiree Lurr, affirm, under the penalty of petjury, that truth of the following:

1) I am a lawyer admitted to practice law in New York State. I practice immigration law at the

Law Firm of Desiree Lurr.

2) I am fluent in both English and Spanish and competent to translate from English into

Spanish and vice versa.

3) I translated the within declaration from English to Spanish for Dayron Hernandez Gutierrez

and he informed me that he understood its contents and confirmed that the contents are true and

correct.

DESIREE LURF

Dated: September 20, 2017 Raquette Lake, New York CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-16 Filed Filed 12/07/18 09/25/17 Page Page 369 6 of of 371 8

EXHIBIT A CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-16 Filed Filed 12/07/18 09/25/17 Page Page 370 7 of of 371 8

u.s, I30 AVil.!llW BuJfa!®. rn' !42U!

March 6, 2017

HERNANDEZ Gutierrez, mDayron C/0 Buffalo Federal Detention Facility 4250 Drive NY 14020

In Reference to: A #212 903 782

TO !!RANI PAilOL_E Dear Mr. Hernandez Gutierrez:

This letter is to infom1 you that U.S. and Customs Entbrcernent (lCEJ has decided to parole you not detention at this time. Under ICE policy, arriving aliens determined by Asylum Officer an to a ofpersecution or torture are initially considered for parole. While the decision whether to grant parole is discretionary, ICE policy is generally to grant parole to aliens determined to have a credible fear if they establish their identity and that they pose neither a flight risk nor danger to the community. As part determination whether to pawle you, on March 3, 2017 ICE conducted an initial .interview with you. Your immigration flies and any supplemental documentation that you provided were reviewed at that time. After reviewing an available i.nfbnnation, has determined that parole is not appropriate i.n your case at thi.s on the fbUowing reason(s):

D You have 110t established your identity to tht;; ofiCE. You 0 did not valid, documentation of identity. or any documents you submitted djd not, to ICE's satisfaction, establish your identity. 0 You did not provide d1irdMparty veriflcation of your identity, or any party information you provided did not, to 1CE's satisfaction, establish your identity. 0 You did not, to lCE's satisfaction, establish your identity through credible statements.

0 You have not established to satisfaction that you are not a flight risk. You faiJed to 0 provide) to ICE's satisfaction, a valid U.S. address where you will reside while your immigration case is pending. 0 You not establish, to substantial ties to the community. 0 Imposition of a bond or other conditions of parole would not ensure, to ICE's your satisfcwtion, appearance at required immigration hearings pending the outcome of your case, CaseCase 1:17-cv-00721-EAW 1:17-cv-00721-EAW Document Document 100 38-16 Filed Filed 12/07/18 09/25/17 Page Page 371 8 of of 371 8

0 You have not established to ICE's satisfaction that you are not a danger to the commtmi!y __ ------sccm1ty.-IlrmaRing Uiis aeterminafior1, fal{itfinto account ai1y ev1cferice of past criminal activity contrary to U.S. national security activity giving rise to concerns of public safety or danget' to the community) disciplinary infractions or incidents, or other criminal or detention history that shows you have harmed or would likely harm yourself or others.

[8] Additional exceptional, overriding factors (e.g., law enforcement interests or potential foreign policy consequences) in your case militate against parole, as follows:

You do not meet the criteria of urgent humanitarian or significant pub He benefit

You request a redetermination of this decision in based upon changed drcun1stances in your case or additional documentation you would like ICE to consider. Such changed circumstances or documentation should relate to the reason(s) indicated above why ICE is not paroling you from custody at this timc. For example. if you have not established your identity to ICE's satisfaction, you may wish to consider providing previously w1fumished governmcntMissued documents such as passports, birth certificates, or identity cards. Identity can also be established through written statements prepared by individuals whom you know in the United States and whose identity ICE can verify to its satisfaction. These statements should include the address of the person you know in the United States and evidence of his or her identity. Finally, if there are multiple grounds checked above. you should try to provide further evidence addressing each Qf them.

If you request redetermination ofthis decision, please direct your vvritten request to the address above, include a copy of this letter and any other prior ICE written decision(s) declining to grant you parole, and clearly explain what changed circumstances or additional documents you would like consj9ered. Failure to provide satisfactory explanation may result in a denial of yout· reqt.est for redetermination.

Sincerely,