Balde v. Duke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SADAT I., et al., :
:
Plaintiffs, : Civil Action No.: 17-1976 (RC)
:
v. : Re Document Nos.: 96, 99
:
KIRSTJEN NIELSEN, United States :
Secretary of Homeland Security, et al., :
:
Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION TO DISMISS WITHOUT PREJUDICE;
GRANTING IN PART PLAINTIFFS’ MOTION TO JOIN PARTIES AND AMEND COMPLAINT

I. INTRODUCTION

This action challenges the United States Immigration and Customs Enforcement’s

(“ICE’s”) treatment of certain arriving aliens, one of several challenges to ICE conduct

percolating through the federal court system. Plaintiffs traveled to the United States, sought

asylum at official ports of entry (“POEs”), and were detained by ICE. They claim that an ICE

policy directive dictates that they should be paroled pending consideration of their asylum

petitions. However, according to Plaintiffs, ICE officials are no longer following the binding

policy directive and are instead systematically denying parole to punish Plaintiffs for seeking

asylum, and to deter other potential asylum seekers. Defendants have moved to dismiss

Plaintiffs’ action, 1 and Plaintiffs have moved to amend their complaint and join as plaintiffs

three similarly-situated individuals. In the interest of judicial economy, the Court will allow

1
Defendants are government officials who implemented or enforced the alleged
immigration deterrence policy.
Plaintiffs to amend their complaint and join additional plaintiffs, and it will deny Defendants’

motion without prejudice.

II. BACKGROUND

This Court’s prior opinion contains detailed background on the relevant statutory

framework, agency guidance, and Plaintiffs’ individual circumstances and conditions of

detention. See Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 120–25 (D.D.C. 2018). 2 Briefly,

Plaintiffs are “arriving aliens” from outside of the United States who surrendered to ICE officials

at POEs, sought asylum, and were detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii) pending

consideration of their asylum petitions.3 As § 1225(b) detainees, Plaintiffs may be paroled “into

the United States temporarily” by the Attorney General “in his discretion.” Id. § 1182(d)(5)(A).

United States Department of Homeland Security (“DHS”) regulations provide that the Secretary

of Homeland Security “may invoke” this parole authority for an individual who is “neither a

security risk nor a risk of absconding” and who meets one or more of a series of conditions, one

of which is that “continued detention is not in the public interest.” 8 C.F.R. § 212.5(a) & (b)(5).

A 2009 ICE directive sets forth certain procedures that must be utilized and factors that,

according to Plaintiffs, must be considered when evaluating parole requests under 8 C.F.R.

§ 212.5. ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of

2
As discussed in greater detail below, that opinion granted in part Plaintiffs’ motion for a
preliminary injunction and denied Defendants’ motion to transfer the action to the Southern
District of Texas. Id. at 131, 157.
3
“Arriving alien means an applicant for admission coming or attempting to come into the
United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-
entry, or an alien interdicted in international or United States waters and brought into the United
States by any means, whether or not to a designated port-of-entry, and regardless of the means of
transport. An arriving alien remains an arriving alien even if paroled pursuant to section
212(d)(5) of the [Immigration and Nationality Act], and even after any such parole is terminated
or revoked.” 8 C.F.R. § 1.2.

2
Persecution or Torture (“Morton Directive” or the “Directive) (Dec. 8, 2009), ECF No. 74-16.

According to the Directive, when an arriving alien found to have a credible fear of persecution

establishes, to ICE’s satisfaction, his or her identity and that he or she presents neither a flight

risk nor a 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.” Id. ¶ 6.2; see also

id. ¶ 8.3. Plaintiffs claim that they have met these criteria and should be paroled under the

Directive. Third Am. Compl. (“TAC”) ¶ 41, ECF No. 73.

Plaintiffs also claim, however, that despite Plaintiffs’ apparent eligibility for parole, ICE

officials, at the direction of high-level policy makers, are no longer following the Morton

Directive. See id. ¶¶ 38–75. Instead, according to Plaintiffs, ICE is systematically denying

parole to adult POE asylum seekers who are unaccompanied by children, to punish those

individuals and deter immigration. Id. Plaintiffs claim that they were denied parole because of

this deterrence policy, and that their prolonged detention is unconstitutional, contrary to law, and

contrary to the Morton Directive. Id. ¶¶ 109–141.

Plaintiffs now seek to join three additional plaintiffs and amend their complaint for a

fourth time. 4 See generally Pls.’ Opposed Mot. Join Parties & Amend Compl. (“Amend Mot.”),

ECF No. 99. The proposed plaintiffs are POE asylum seekers who are currently detained under

8 U.S.C. § 1225(b) and have been denied parole under § 1182(d)(5)(A). Id. at 1–2; Fourth Am.

Compl. (“FAC”) ¶¶ 82, 84–85, ECF No. 99-1. The proposed complaint amendments are

relatively minor. First, Plaintiffs have added background details on the proposed plaintiffs. See

id. ¶¶ 9–11, 82, 84–85. Second, Plaintiffs have added certain details regarding Defendants’

4
Plaintiffs also request “a deadline of January 1, 2019 during which they may evaluate . .
. additional parties and their claims and seek leave to join them.” Amend Mot. at 3. That request
is discussed below.

3
alleged deterrence policy. See id. ¶¶ 54, 62–66. Third, Plaintiffs have asserted that the alleged

deterrence policy has been applied to aliens eligible for conditional release under a different

statutory provision, 8 U.S.C. § 1231, discussed in greater detail below. See id. ¶¶ 53, 86(J).

Fourth, Plaintiffs have withdrawn their claims on behalf of Plaintiffs Aracely R., Hatim B., and

Junior M.5 Fifth, and finally, Plaintiffs have withdrawn certain claims regarding their First

Amendment rights and their rights to bond hearings before immigration judges. In summary,

Plaintiffs seek to assert substantially the same claims on behalf of substantially similar plaintiffs.

Defendants oppose Plaintiffs’ motion, and they have filed a motion to dismiss this action

in full. See generally Defs.’ Opp’n Amend Mot. (“Opp’n”), ECF No. 101; Defs.’ Mot. Dismiss,

ECF No. 96. Both motions are ripe for the Court’s consideration.

III. ANALYSIS

The Court must first determine whether to grant Plaintiffs’ motion to join additional

plaintiffs and amend the complaint, because if amendment is warranted Defendants’ motion to

dismiss is moot. See Adams v. Quattlebaum, 219 F.R.D. 195, 197 (D.D.C. 2004) (“Because [the

defendant’s] motion [to dismiss] pertains to the original and now-superseded complaint, the

court denies it without prejudice.”). The Court will consider, in order of complexity, whether

Plaintiffs may join additional plaintiffs under Federal Rule of Civil Procedure 20, and then

whether Plaintiffs may amend their complaint under Federal Rule 15. In line with the Federal

Rules’ bent towards entertaining the broadest possible scope of action consistent with fairness to

the parties, the Court concludes that Plaintiffs may join additional plaintiffs and amend their

complaint in certain respects. The Court also provides, in the interest of judicial efficiency, time

5
Two Plaintiffs remain—Sadat I. and Mikailu J.—pending Plaintiffs’ motion to join
additional plaintiffs.

4
for Plaintiffs to join additional, similarly-situated plaintiffs. Accordingly, the Court grants

Plaintiffs’ motion in part and denies Defendants’ motion without prejudice.

A. Plaintiffs May Join Additional Plaintiffs

Federal Rule 20(a)(1) provides that plaintiffs may join in one action if they seek relief

“with respect to or arising out of the same transaction, occurrence, or series of transactions or

occurrences,” and if “any question of law or fact common to all plaintiffs will arise in the

action.” Fed. R. Civ. P. 20(a)(1). “The purpose of Rule 20 is to promote trial convenience and

expedite the final resolution of disputes, thereby preventing multiple lawsuits, extra expense to

the parties, and loss of time to the court as well as the litigants appearing before it.” Boomer

Dev., LLC v. Nat. Ass’n of Home Builders of U.S., 325 F.R.D. 6, 18 (D.D.C. 2018) (quoting M.K.

v. Tenet, 216 F.R.D. 133, 137 (D.D.C. 2002)). Accordingly, Rule 20(a)’s requirements “are to

be liberally construed in the interest of convenience and judicial economy . . . in a manner that

will secure the just, speedy, and inexpensive determination of th[e] action.” Spaeth v. Mich.

State Univ. Coll. of Law, 845 F. Supp. 2d 48, 53 (D.D.C. 2012) (omission and alteration in

original) (quoting Davidson v. District of Columbia, 736 F. Supp. 2d 115, 119 (D.D.C. 2010)).

Despite ample case law suggesting that joinder of plaintiffs should be liberally granted,

Defendants raise two primary arguments for why joinder is inappropriate here. Both arguments

fail.

Defendants first argue that Plaintiffs’ current claims are moot, and therefore that “there is

simply no overlap” between the current Plaintiffs and the proposed plaintiffs “that would provide

this Court the opportunity to resolve a common question.” Opp’n at 4. Defendants have the

“‘heavy’ burden” of establishing mootness. Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d

449, 459 (D.C. Cir. 1998) (quoting L.A. Cty. v. Davis, 440 U.S. 625, 631 (1979)). In attempting

5
to satisfy this burden, Defendants correctly note that “[n]o current [P]laintiff is detained under 8

U.S.C. § 1225(b) with a credible fear of persecution,” and they argue that Plaintiffs can thus no

longer challenge their detention in the same way that the proposed plaintiffs can. Opp’n at 2; see

also Joint Status Report, ECF No. 94. However, the mere fact that Defendants have temporarily

released Plaintiff Sadat I. from § 1225(b) detention—and that Plaintiff Mikailu J. has become

detained under a different statutory provision—does not necessarily moot Plaintiffs’ claims. A

defendant’s cessation of challenged conduct moots an action only if the defendant demonstrates

that “(1) there is no reasonable expectation that the conduct will recur and (2) ‘interim relief or

events have completely and irrevocably eradicated the effects of the alleged violation.’” Motor

& Equip. Mfrs. Ass’n, 142 F.3d at 459 (quoting Davis, 440 U.S. at 631). Otherwise, voluntary

cessation of challenged conduct would leave a defendant “free to return to [its] old ways.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)

(quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982)).

In determining whether the voluntary cessation doctrine applies here, the Court must

precisely define Defendants’ allegedly illegal conduct and determine whether a return to that

conduct is possible. See Clarke v. United States, 915 F.2d 699, 703 (D.C. Cir. 1990) (“What is

the injury that is capable of repetition, and what are the ‘old ways’ to which the voluntarily

ceasing defendant might return?”). Again, Plaintiffs challenge the legality of their detention

under 8 U.S.C. § 1225(b)(1)(B)(ii) and the policy underlying that detention. Defendants have

submitted no evidence that they have permanently halted or altered the alleged policy, and they

have repeatedly admitted that ICE may revoke Plaintiff Sadat I.’s parole at any time and re-

detain him under § 1225(b) if ICE determines that “the purposes of such parole . . . have been

served.” 8 U.S.C. § 1182(d)(5)(A); see 8 C.F.R. § 212.5(e)(2)(i); Opp’n at 3; Defs.’ Reply Supp.

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Mot. to Dismiss (“Defs.’ Reply”) at 5, ECF No. 100. While 8 C.F.R. § 212.5(e)(2)(i) requires

that a paroled alien be given written notice of parole revocation, “it provides no other procedural

and no meaningful substantive limit on [ICE’s] exercise of discretion” in revoking parole.

Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010) (discussing an analogous parole

provision). Defendants have identified no constraints on this discretion, and nothing in the

record suggests that Sadat I.’s re-detention is subject to anything other than ICE’s whims.

Cf. Picrin–Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991) (holding that the voluntary

cessation doctrine was inapplicable where “the government filed a declaration of the director of

the Los Angeles District Office of the INS who reiterated under oath” that the plaintiff “w[ould]

be paroled for another year” absent the occurrence of certain circumstances outside the

government’s control). And Defendants’ conclusory assertions that a parole revocation is

“hypothetical,” Defs.’ Reply at 5, or speculative, Opp’n at 3, are not sufficient to show that

“there is no reasonable expectation” that Sadat I. may be re-detained. Davis, 440 U.S. at 631

(quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)).

Tracking this reasoning, other courts have held that temporary relief does not moot a

challenge to an immigration-related policy where the plaintiffs may be re-exposed to that policy.

For instance, another district court recently concluded that certain individuals’ release from

§ 1225(b) detention did not moot claims substantially similar to those raised here, because those

individuals’ “re-detention . . . f[ell] within [the government’s] broad discretionary control”

and “[a] contrary holding would permit [the government] to ‘return to [its] old ways’ by

subjecting [the plaintiffs] to a second round of prolonged detention.” Abdi v. Duke, 280 F. Supp.

3d 373, 396 (W.D.N.Y. 2017) (quoting Laidlaw, 528 U.S. at 189). Similarly, in reviewing an

alleged government policy of refusing to process asylum seekers at POEs, a different district

7
court recently held that the government’s agreement to process the plaintiffs did not moot their

complaint. Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1303 (S.D. Cal. 2018). The

court reasoned that “there is nothing in the [c]omplaint that suggests that [the plaintiffs] will not

attempt to seek asylum again and, if so, that CBP officers will not turn them away from a POE”

pursuant to the challenged policy. Id.; see also Rodriguez, 591 F.3d at 1117–18 (holding that the

plaintiff’s challenge to the conditions of his immigration-related detention was not mooted by his

discretionary parole). This Court follows these decisions in holding that Plaintiffs’ claims here

are not moot with respect to Sadat I. 6

Defendants next argue that they would be prejudiced by the proposed joinder of new

plaintiffs. Opp’n at 4–5. 7 In claiming prejudice, Defendants place significant weight on the

Court’s prior order granting in part Plaintiffs’ motion for a preliminary injunction and denying

Defendants’ motion to transfer the action. See Aracely, 319 F. Supp. 3d at 131, 157. Defendants

6
Because the Court holds that Sadat I.’s claims are not moot, for purposes of this opinion
it need not consider whether Mikailu J.’s claims are moot. Defendants may raise that argument
again when they move to dismiss Plaintiffs’ amended complaint.
7
While Defendants’ prejudice assertion does not directly address Federal Rule 20’s
joinder requirements, it raises an argument under Federal Rule 21. Rule 21 permits a court to
sever specific parties or claims from an action “upon a sufficient showing of prejudice to the
defendant, delay, or potential for jury confusion.” Martinez v. DOJ, 324 F.R.D. 33, 38 (D.D.C.
2018) (quoting Alexander v. Edgewood Mgmt. Corp., 321 F.R.D. 460, 464 (D.D.C. 2017)); see
also Fed. R. Civ. P. 21. It is well established that courts have broad discretion to refuse Rule 20
joinder when they confront circumstances supporting Rule 21 severance. See, e.g., Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010) (“[E]ven if [the Rule 20]
test is satisfied, district courts have the discretion to refuse joinder in the interest of avoiding
prejudice and delay.”); Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir.
2007) (“[T]he court has discretion to deny joinder if it determines that the addition of the party
under Rule 20 will not foster the objectives of the rule, but will result in prejudice, expense, or
delay.” (alteration in original) (quoting 7 Charles Alan Wright, et al., Federal Practice and
Procedure § 1652 (3d ed. 2001))); see also Council on Am.-Islamic Relations Action Network,
Inc. v. Gaubatz, 793 F. Supp. 2d 311, 323 (D.D.C. 2011) (“Attempts to join a party who satisfies
the test for permissive joinder should generally not be denied in the absence of undue prejudice,
expense, or delay.” (citing Chavez v. Ill. State Police, 251 F.3d 612, 632 (7th Cir. 2001))).

8
claim that joinder would allow the proposed plaintiffs to “implement de facto offensive non-

mutual issue preclusion” regarding the “significant issues” decided by the Court in that order.

Opp’n at 5. Defendants oversell the significance of the preliminary issues decided by the Court,

and they oversell the consequences of those decisions.

Defendants’ suggestion that the Court’s preliminary injunction order may have preclusive

effect is unsupported by precedent. See Sole v. Wyner, 551 U.S. 74, 84 (2007) (noting the

“tentative character” of a preliminary injunction, which “ha[s] no preclusive effect in the

continuing litigation”); Natural Res. Def. Council v. Pena, 147 F.3d 1012, 1023 (D.C. Cir. 1998)

(noting “the provisional nature of preliminary injunctive relief”); Mahoney v. Babbitt, 113 F.3d

219, 224 (D.C. Cir. 1997) (noting the limited preclusive value of preliminary injunction

findings). In its order, the Court merely held that Plaintiffs are likely to succeed on the merits of

some of their claims. See Aracely, 319 F. Supp. 3d at 149. Should Plaintiffs seek preliminary

injunctive relief with respect to the proposed plaintiffs, they must again meet the standard for

such relief and Defendants may again vigorously oppose Plaintiffs’ motion. And despite

Plaintiffs’ limited success at the preliminary injunction stage, they must still prove their claims

on the merits.

Moreover, Defendants fail to cite authority in support of the proposition that a court’s

earlier rulings on certain preliminary issues, such as venue, render the subsequent joinder of

plaintiffs inappropriate. The Court held that venue is properly laid in this jurisdiction. Aracely,

319 F. Supp. 3d at 131. Defendants may be unhappy with this decision, but that unhappiness is

not sufficiently prejudicial to defeat the joinder of plaintiffs raising identical factual and legal

questions.

9
 Having concluded that Sadat I.’s claims are not moot and that joinder would not unfairly

prejudice Defendants, the Court must determine whether the proposed plaintiffs seek relief

“arising out of the same transaction, occurrence, or series of transactions or occurrences” as

those impacting Sadat I., and whether “any question of law or fact common to all plaintiffs will

arise in the action.” Fed. R. Civ. P. 20(a). Both requirements are met. Like Sadat I., the

proposed plaintiffs are POE asylum seekers who have been detained under 8 U.S.C. §

1225(b)(1)(B)(ii) and denied parole under 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5. See

FAC ¶¶ 2, 82–86. The proposed plaintiffs ask this Court to determine (1) whether Defendants

have prolonged their detention in order to punish the plaintiffs and deter other individuals from

seeking asylum in the United States; and (2) whether that justification and its consequences

violate the Constitution, certain statutes, and ICE’s own internal policies and procedures. See

generally FAC. These are the same factual and legal questions raised by Plaintiffs’ current

complaint. See generally TAC. Accordingly, “convenience and judicial economy” warrant

joinder of the proposed plaintiffs to “secure the just, speedy, and inexpensive determination of

th[e] action.” Spaeth, 845 F. Supp. 2d at 53 (alteration in original) (quoting Davidson, 736 F.

Supp. 2d at 119).

B. Plaintiffs May Amend the Complaint, Though Not to the Full Extent Requested

Because Plaintiffs have already amended their complaint three times, they may no longer

amend it as of right. Fed. R. Civ. P. 15(a)(1). Accordingly, under Federal Rule of Civil

Procedure 15(a)(2), Plaintiffs “may amend [their complaint] only with the opposing party’s

written consent,” which they have not secured, “or the [C]ourt’s leave.” Id. 15(a)(2). The “grant

or denial of an opportunity to amend is within the [Court’s] discretion,” Foman v. Davis, 371

10
U.S. 178, 182 (1962), and “[t]he [C]ourt should freely give leave [to amend the complaint] when

justice so requires,” Fed. R. Civ. P. 15(a)(2).

“When evaluating whether to grant leave to amend [under Rule 15(a)(2)], the Court must

consider (1) undue delay; (2) prejudice to the opposing party; (3) futility of the amendment; (4)

bad faith; and (5) whether the plaintiff has previously amended the complaint.” Howell v. Gray,

843 F. Supp. 2d 49, 54 (D.D.C. 2012) (citing Atchinson v. District of Columbia, 73 F.3d 418,

425–26 (D.C. Cir. 1996)). As noted, the amended complaint differs from the current complaint

in that it includes background on the proposed new plaintiffs, see FAC ¶¶ 9–11, 82, 84–85, and

additional detail on Defendants’ alleged deterrence policy, see id. ¶¶ 54, 62–66, it more

explicitly challenges Plaintiff Mikailu J.’s detention under 8 U.S.C. § 1231, see id. ¶¶ 53, 86(J),

and it drops certain claims included in the current complaint. Defendants’ only argument against

these amendments, aside from Defendants’ general opposition to the joinder of additional

plaintiffs, is that Plaintiffs’ challenge to Mikailu J.’s detention cannot survive a motion to

dismiss. Opp’n at 6–7. In other words, Defendants argue that amendment is futile with respect

to that claim. See Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir. 2016) (“Courts may deny a

motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to

dismiss.” (quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.

1996))). Defendants’ argument is well taken.

Plaintiffs’ motion to amend the complaint regarding Mikailu J.’s current detention must

be evaluated in the proper factual and statutory context. In late 2017, an immigration judge

denied Mikailu J.’s asylum petition and ordered him removed from the United States. See

Decision of the Board of Immigration Appeals at 1, ECF No. 100-1. That decision was upheld

by DHS’s Board of Immigration Appeals (“BIA”) on August 17, 2018, a final administrative

11
order of removal. See Pls.’ Opp’n Defs. Mot. Dismiss at 8, ECF No. 98; Decision of the Board

of Immigration Appeals at 2–3. As an alien subject to a final administrative order of removal,

Mikailu J.’s detention is governed by a different statutory scheme than POE asylum seekers such

as Sadat I. and the proposed plaintiffs. Under this scheme, an alien who has been ordered

removed must be removed within ninety days. 8 U.S.C. § 1231(a)(1). During this ninety-day

period, “the Attorney General shall detain the alien.” Id. § 1231(a)(2). After the ninety-day

period, the Attorney General may continue to detain the alien pending his or her removal, id. §

1231(a)(6), or may instead conditionally parole the alien, id. § 1231(a)(3); 8 C.F.R. § 241.4(a).

According to Plaintiffs, Mikailu J. is detained under this scheme while the Fifth Circuit considers

his appeal of the BIA’s decision. See Pls.’ Opp’n Defs. Mot. Dismiss at 8; Pls.’ Reply Supp.

Amend Mot. (“Reply”) at 1, ECF No. 102.

Plaintiffs’ proposed claims regarding Mikailu J.’s detention are tenuous at best.

Plaintiffs make the conclusory assertion that ICE’s alleged deterrence policy regarding POE

asylum seekers—the complaint’s focus—“has also been applied to persons in post removal

proceedings under 8 U.S.C. § 1231.” FAC ¶ 53. More specifically, Plaintiffs claim that Mikailu

J. “will suffer” from this policy during his § 1231 detention. Id. ¶ 86(J). However, Plaintiffs do

not indicate that the policy has already been applied to Mikailu J. or any other Plaintiff, or that it

will be applied imminently. Nor could they so indicate, when they filed their motion to amend

the complaint, because at that time Mikailu J.’s ninety-day removal period had not yet expired

and his detention was mandatory. 8 See 8 U.S.C. § 1231(a)(2). This is exactly the type of

8
Plaintiffs also assert that Mikailu J.’s case should “soon be remanded” for a new
consideration of his asylum petition. Reply at 1. When this hypothetical remand occurs, Mikailu
J. will no longer be detained under § 1231. Id. Thus, it seems that to the extent Mikailu J. “will
suffer” from Defendants’ alleged policy during his § 1231 detention, Plaintiffs allege that his
suffering will be short lived.

12
“‘conjectural’ or ‘hypothetical’” injury that the Supreme Court has held is insufficient to convey

standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas,

495 U.S. 149, 155 (1990)); see also DEK Energy Co. v. FERC, 248 F.3d 1192, 1195 (D.C. Cir.

2001) (“There is quite a gulf between the antipodes of standing doctrine—the ‘imminent’ injury

that suffices and the merely ‘conjectural’ one that does not.”). Thus, because Plaintiffs’

allegations regarding Mikailu J.’s § 1231 detention would likely fail to survive a motion to

dismiss, the Court denies as futile Plaintiffs’ motion to add those allegations. The Court allows

Plaintiffs’ other proposed amendments.

IV. CONCLUSION

As the Supreme Court has dictated, under the Federal Rules, “the impulse is toward

entertaining the broadest possible scope of action consistent with fairness to the parties; joinder

of claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 724 (1966). Following that guidance, and for the foregoing reasons, the Court

grants Plaintiffs’ motion to amend their complaint in certain respects and join additional

plaintiffs. The Court also concludes that in the interest of judicial efficiency, and to avoid

duplicative, piecemeal briefing, Plaintiffs shall have until January 18, 2019 to join additional

plaintiffs and further amend the complaint. Given that Plaintiffs have now amended their

complaint four times, the Court does not expect to grant additional requests to amend the

complaint or join plaintiffs after that date.

The Court hereby ORDERS:

1. Defendants’ Motion to Dismiss (ECF No. 96) is DENIED WITHOUT

PREJUDICE.

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 2. Plaintiffs’ Motion to Join Parties and Amend Complaint (ECF No. 99) is

GRANTED IN PART as follows:

a. Plaintiffs may join the proposed plaintiffs.

b. Plaintiffs may amend the complaint as proposed, except that plaintiffs

may not add the proposed references to 8 U.S.C. § 1231 detention.

3. Plaintiffs may not amend the complaint or join additional plaintiffs after

January 18, 2019.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: January 4, 2019 RUDOLPH CONTRERAS
United States District Judge

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