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Uelian De Abadia-Peixoto, et al v. U.S. Department of Homeland Security

December 23, 2011

UELIAN DE ABADIA-PEIXOTO, ET AL., PLAINTIFFS,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

**E-filed 12/23/11**

ORDER DENYING MOTION TO DISMISS AND GRANTING MOTION TO CERTIFY CLASS

I. INTRODUCTION

This putative class action challenges a policy and practice whereby all civil immigration 21 detainees are shackled during their appearances in immigration court in San Francisco, without 22 individual determinations of need for such restraints. Plaintiffs move to certify the class, and 23 defendants move to dismiss.

II. BACKGROUND

Defendant Immigration and Customs Enforcement ("ICE") is a federal law enforcement 27 agency within the Department of Homeland Security. Defendant Executive Office for Immigration Review ("EOIR") is an agency within the Department of Justice that administers immigration courts. The individual defendants in this action are all named in their official capacities as heads of 2 the agencies and departments involved, or of local offices thereof. 3

Plaintiffs allege that defendants have implemented a blanket practice of requiring all 4 detained immigrants to appear for immigration court hearings in shackles-hard metal restraints 5 around their ankles, wrists, and waists. This practice is applied across the board-to refugees fleeing 6 persecution and torture in their native countries, the elderly, and the physically and mentally 7 disabled-with no review of the need for restraints for particular detainees. During master calendar 8 hearings, detainees are often chained to one another in what is referred to as a "daisy chain." 9

Plaintiffs aver that for many detainees, the shackles cause physical pain and discomfort, 10 including bruising and swelling. Plaintiffs assert that shackling also can cause emotional and psychological injuries, including serious harm to detainees who have been bound or tortured in the past. Plaintiffs further argue and allege that shackling impairs the mental acuity, confidence, and 13 energy individuals need for a full and fair opportunity to participate in their immigration 14 proceedings. Plaintiffs contend that when shackled, a detainee has difficulty taking notes and 15 handling documents. The attorney-client relationship can be impaired because, when "daisy-16 chained," detainees must choose between disclosing personal, and sometimes humiliating, facts 17 within earshot of other detainees or withholding from their counsel information that could be crucial 18 to their cases. 19

At the time the complaint was filed, named plaintiffs Uelian DeAbadia-Peixoto, Esmar Cifuentes, Pedro Nolasco Jose, and Mi Lian Wei were all in ICE custody, had been subjected to 21 ICE's shackling practices, and had merits hearings scheduled in the near future in which they 22 expected to be shackled in accordance with ICE's blanket practice. The named plaintiffs alleged that 23 none of them would pose any risk of flight or threat to the safety and security of the courtroom if 24 allowed to appear without physical restraints. 25 26 27 28

III. DISCUSSION

A. Motion to dismiss

1. Ripeness

Defendants contend that plaintiffs' claims are all subject to dismissal for lack of ripeness 5 because they, "rest upon contingent future events that may not occur as anticipated, or indeed may 6 not occur at all." Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). Defendants' 7 ripeness argument is two-fold-first, plaintiffs have not yet had their merits hearings and therefore 8 have not suffered the shackling about which they complain, and second, that plaintiffs cannot yet 9 know if they will be prejudiced, even assuming they are shackled at their hearings.

Neither prong of defendants' argument is compelling. While the plaintiffs' particular hearings may not yet 11 have occurred, they have sufficiently alleged facts showing a concrete threat of imminent conduct presenting a ripe controversy that can be adjudicated. While it may be 13 theoretically possible that something could happen in the interim such that plaintiffs' hearings 14 would not go forward, or that the ...


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