Devitri v. Cronen

289 F. Supp. 3d 287
CourtDistrict Court, District of Columbia
DecidedFebruary 1, 2018
DocketCivil Action No. 17–11842–PBS
StatusPublished
Cited by21 cases

This text of 289 F. Supp. 3d 287 (Devitri v. Cronen) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Devitri v. Cronen, 289 F. Supp. 3d 287 (D.D.C. 2018).

Opinion

Patti B. Saris, Chief United States District Judge

INTRODUCTION

Petitioners1 are fifty2 Indonesian Christians subject to final Orders of Removal.

*290Residing with Government permission in New Hampshire under a humanitarian program called "Operation Indonesian Surrender," they have complied with the conditions of their Orders of Supervision, some for more than a decade. Last summer, the Government informed them that the program was being terminated, and they were ordered to return to Indonesia within sixty days. Petitioners now seek to file3 motions to reopen their immigration proceedings based on "changed country conditions," on the ground that they are likely to face persecution or torture in Indonesia because of their Christian faith. Challenging their lack of meaningful access to the motion to reopen procedure as a violation of the Due Process Clause of the Fifth Amendment and contrary to the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT"),4 Petitioners assert jurisdiction under 28 U.S.C. § 2241, 28 U.S.C. § 1331, 28 U.S.C. § 1361, and 5 U.S.C. § 701 et seq. They contend they will be removed to Indonesia before they have sufficient time to file a motion to reopen and before the motion to reopen is ruled on by the BIA and First Circuit. Accordingly, they seek a preliminary injunction staying their removal.

The Government argues that Petitioners seek to circumvent Congress's immigration framework. They re-assert that this Court lacks jurisdiction, that Petitioners do not show that they are likely to be removed before the administrative courts can adjudicate their motions to stay removal, and that they have not shown that they are each likely to face torture or persecution as a result of removal.

After a hearing, the Court ALLOWS the motion for preliminary injunction (Docket No. 3) staying removal to the extent provided below.

BACKGROUND

The Court assumes familiarity with its November 27, 2017 order on jurisdiction (Docket No. 65, Devitri v. Cronen, Civ. No. 17-11842-PBS, 290 F.Supp.3d 86, 2017 WL 5707528 (D. Mass. Nov. 27, 2017), and only briefly summarizes the relevant background information here.

I. Factual Background

A. The Humanitarian Program

Petitioners are Christian Indonesian nationals who have lived in New Hampshire for many years (some for over a decade), but are subject to final Orders of Removal. In 2010, Immigration and Customs Enforcement ("ICE") instituted a humanitarian program called "Operation Indonesian Surrender" in New Hampshire. Petitioners and other Indonesian nationals with final Orders of Removal were encouraged to come "out of the shadows" and identify themselves to ICE during the program. In exchange, they were granted temporary stays of removal and placed under Orders of Supervision ("OSUPs"). These OSUPs allowed them to seek employment and also prescribed conditions with which the recipients had to comply. Petitioners lived and *291worked under these OSUPs without incident until 2017 and generally complied with their conditions.

The Government never made any promises or agreements that the program participants could stay in the country indefinitely. However, nothing in the record suggests that Petitioners were notified that they would forfeit the right to assert changed country conditions if they did not file motions to reopen while they participated in Operation Indonesian Surrender. They reasonably relied on their OSUPs in not filing motions to reopen earlier and had no reason to suspect that the Government would abruptly change its mind about the humanitarian program.

On August 1, 2017, a group of Petitioners checked in with ICE pursuant to the conditions of their OSUPs. They were informed that they would be subject to a "thirty-thirty" deportation schedule: they would have to depart for Indonesia no later than thirty days after their upcoming thirty-day check-in appointment (i.e., sixty days from August 1, 2017).

B. Fears of Persecution

Petitioners' expert, Jeffrey Winters, Ph.D., states that Indonesian society has recently faced a "rising tide of extremist Islam." Winters Aff. (Docket No. 49-6) ¶ 8. Petitioners have presented evidence that they may face "intimidation, physical harm, and threats to their personal safety and well-being," based on their Christian religion, if they returned to Indonesia. Winters Aff. (Docket No. 49-6) ¶ 2. According to Dr. Winters, since 2012, the level of violence and intolerance directed at religious minorities has increased at a "shocking rate," and Christian Indonesians face an "extremely high probability of persecution." Winters Supp. Aff. (Docket No. 88-1) ¶ 2.

Dr. Winters's supplemental affidavit further states that law enforcement in Indonesia is unlikely to provide meaningful protection to religious minorities-and Evangelical Christians, like Petitioners, in particular-in the face of violence and intolerance. See Winters Supp. Aff. (Docket No. 881) ¶¶ 14, 33. He writes that "the Indonesian government actively supports Islamic extremists who are anti-Christian" and "will punish those who are 'vocal' and 'assertive' Christians, such as Plaintiffs." Winters Supp. Aff. (Docket No. 88-1) ¶ 6. Dr. Winters also cites a 2013 United States government report, which found that the Indonesian government "did not enforce laws that would protect vulnerable groups and religions" and "collaborated with hardline groups against members of sects they deemed to be 'deviant.' " Winters Aff. (Docket No. 49-6) ¶ 08.

His supplemental affidavit also includes articles covering this case in the media in Indonesia. See Winters Supp. Aff. (Docket No. 88-1) Ex. A. Although names of some of the Petitioners are mentioned in media coverage, Petitioners have presented no affidavits about their individual situations.

II. BIA Procedures

Congress created a statutory right for each alien to file a motion to reopen immigration proceedings. See 8 U.S.C.

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289 F. Supp. 3d 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devitri-v-cronen-dcd-2018.