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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

FARAH IBRAHIM, et al., Petitioners and Plaintiffs, v. U.S. ATTORNEY GENERAL, et al., Respondents and Defendants.

Case No.:

Class Action

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PETITIONERS/PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION COMES NOW, Petitioners/Plaintiffs (hereinafter “Petitioners”) and hereby moves the

Court for class certification, and in support thereof, state as follows:

1. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Petitioners seek to

certify a class defined as follows:

A. All persons with final orders of removal and currently facing removal to Somalia who

are located within the jurisdiction of the Miami ICE Field Office (“Class Members”),

including all persons whom ICE sought to deport to Somalia on the December 7,

2017 contract flight (“Subclass Members”).

2. The named Petitioners, Farah Ibrahim, Ibrahim Musa, Khalid Abdallah Mohmed, Ismail

Jimcale, Abdiwali Ahmed Siyad, Ismael Abdirashed Mohamed, and Khadar Abdi Mohamed,

request that this Court name them as representative plaintiffs for the Proposed Class and

Subclass.

3. Petitioners further request this Court appoint their counsel as class and subclass counsel.

4. The Class Members seek habeas and injunctive relief as set out in the Class Action

Complaint and Petition (“Petition”). The Class Members seek relief on Counts I, II, III of the

Case 1:17-cv-24574-DPG Document 4 Entered on FLSD Docket 12/19/2017 of 6

Petition. See Petition. The Class Members base this Motion upon the Petition, as well as the

Memorandum of Law in Support of Class Certification that accompanies this Motion.

5. The Class Members seek class-wide relief, enjoining removal until Class Members have

a meaningful opportunity to seek reopening of their removal cases given the changed

circumstances in Somalia arising from the widespread media coverage of the failed December 7,

2017 flight. The Class Members also seek class-wide relief, enjoining removal until Respondents

have taken precautions to ensure that Class Members will not be abused during the removal

process. The Class Members also seek class-wide relief, enjoining Respondents from transferring

any Class Members away from the Krome Service Processing Center in Miami, Florida, or the

Glades Detention Center in Moore Haven, Florida, and ordering Respondents to return any Class

Members to South Florida who have already been transferred to a different location.

6. In addition, the Subclass Members seek subclass-wide relief enjoining removal until

Subclass Members have received adequate medical treatments for injuries sustained on the

December 7, 2017 flight.

7. The proposed representative class meets the four prerequisites for class certification

enumerated in Fed. R. Civ. P. 23(a):

a. Class Members are so numerous that joinder be impracticable. There were 92

individuals on the December 7, 2017 flight, and additional individuals within the

jurisdiction of the Miami Field Office currently facing removal to Somalia on the

next flight or flights;

b. There are common questions of law and fact among the Class Members. ICE is

seeking to deport each Class Member to Somalia, and each Class Member has the


same basis for a motion to reopen their removal order based on the changed

circumstances arising as a result of the failed December 7, 2017 flight;

c. The claims of the individual Petitioners are typical of those of all Class Members.

They were on the December 7, 2017 flight intended for Somalia, and as a result,

are eligible to file motions to reopen their removal orders based on changed

circumstances; and

d. Petitioners and their counsel will fairly and adequately represent the class

interests, because they were on the December 7, 2017 flight. In addition, class

counsel has experience in immigration-related class action cases and will

adequately represent the interest of the class.

8. In addition, the Proposed Class satisfied the requirements of R. 23(b)(2) for the equitable

relief sought, Respondents have acted or refused to act on grounds applicable to the entire class,

rendering declaratory and injunctive relief appropriate to the class as a whole.

9. Individual suits by each Class Member would be impracticable because they would create

a risk of inconsistent or varying adjudications and would establish incompatible standards of

conduct for the parties opposing the class. In addition, the Class Members are all detained and

indigent, and lack the financial resources to vindicate their rights in Court individually.

WHEREFORE, for the reasons set forth above and in the accompanying Memorandum of

Law, Petitioners respectfully request this Court to certify the Class identified above pursuant to

Fed. R. Civ. P. 23(a) and (b)(2), name the Petitioners as representatives of the Class, appoint

Petitioners’ counsel as counsel for all certified classes, and order appropriate class notice.


1

CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to Local Rule 7.1(a)(3), counsel for movant has made reasonable efforts

to confer with all parties or non-parties who may be affected by class certification in a

good faith effort to resolve the issues raised in the motions and has been unable to do so.

Although no counsel has yet appeared in this matter, Petitioner’s counsel Rebecca

Sharpless called Alicia Welch on December 18, 2017 at 3:05 p.m. to explain the nature of

the relief sought and to seek concurrence on the motion for class certification and left a

detailed message. As of the time of filing of this motion on December 18, 2017, she

received no response. Once opposing counsel has appeared in this matter, Petitioners’

counsel will confer and supplement this motion.

Date: December 18, 2017 Respectfully submitted,

By: /s/ Rebecca Sharpless Rebecca Sharpless Florida Bar No. 0131024 Immigration Clinic University of Miami School of Law 1311 Miller Drive Suite E-273 Coral Gables, Florida 33146 Tel: (305) 284-3576, direct Tel: (305) 284-6092, clinic [email protected] Lisa Lehner Florida Bar No. 382191 Andrea Crumrine Americans for Immigrant Justice 3000 Biscayne Blvd., Suite 400 Miami, FL 33137 Phone: (305) 573-1106 [email protected] [email protected]

Benjamin Casper Sanchez* James H. Binger Center for New Americans University of Minnesota Law School 190 Mondale Hall 229 19th Avenue South Minneapolis, MN 55455 (612) 625-6484 [email protected] *Motion to Appear Pro Hac Vice Forthcoming


2

Andrea Montavon-McKillip Fla. Bar No. 56401 Legal Aid Service of Broward County, Inc. 491 N. State Rd. 7 (954) 736-2493 (954) 736-2484 (fax) [email protected] Plantation, FL 33317

Law students Mary Georgevich, Alexis Dutt, and Timothy Sanders from the University of Minnesota Law School contributed to this pleading.


2



MIAMI DIVISION

FARAH IBRAHIM, et al., Petitioners and Plaintiffs, v. JUAN ACOSTA, et al., Respondents and Defendants.

Case No.:

Class Action

/

PETITIONERS/PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF CLASS CERTIFICATION

Case 1:17-cv-24574-DPG Document 4-1 Entered on FLSD Docket 12/19/2017 Page 1 of 21

REQUEST FOR HEARING

Pursuant to Local Rule 7.1(b)(2), Petitioners request oral argument on this Motion in order

to explain the complex immigration and country conditions issues involved. It is estimated that 30

minutes will be required for argument.


INTRODUCTION

Petitioners and the class they represent are 92 people who ICE subjected to inhumane

conditions and egregious abuse during a failed attempt to deport them by plane to Somalia on

December 7, 2017. For almost two days, the men and women sat bound and shackled in an ICE-

chartered airplane. The plane departed Louisiana bound for Somalia, but only made it as far as

Dakar, Senegal. The plane sat on a runway at the Dakar airport for 23 hours.

As the plane sat on the runway, the 92 detainees remained bound, their handcuffs secured

to their waists, and their feet shackled together. When the plane’s toilets overfilled with human

waste, some of the detainees were left to urinate into bottles or on themselves. ICE agents wrapped

some who protested, or just stood up to ask a question, in full-body restraints. ICE agents kicked,

struck, or dragged detainees down the aisle of the plane, and subjected some to verbal abuse and

threats.

ICE ultimately aborted the trip and flew back to the United States, landing in Miami. In the

early morning of Saturday, December 9th, ICE transported the still-shackled detainees to its two

detention centers in the South Florida area. ICE has indicated it will attempt to fly the detainees to

Somalia again this week, likely on Wednesday, December 20, 2017, but possibly sooner.

The ICE flight never reached Somalia, but the story of the 92 detainees did, riding a wave

of press coverage in international news outlets from the New York Times to the BBC. This in turn

triggered widespread reporting and speculation about the U.S. deportees in the Somali media. See

Declaration of Abdinasir M. Abdulahi, Attached to Motion for Temporary Restraining Order

(listing numerous links to Somali media coverage).

The extraordinary public attention that ICE’s misconduct has drawn to the 92 detainees

matters because it is a unique circumstance that puts them in danger of being targeted by the anti-


American, anti-Western terrorist organization, Al Shebaab. Al Shebaab is an ally of Al Qaeda and

is waging a war against Somalia’s fragile government.


THE PROPOSED CLASS DEFINITION

The main class that Petitioners seek to certify is defined as:

All persons with final orders of removal under the jurisdiction of the Miami Field Office

of Immigration & Customs Enforcement and whom ICE is seeking or will be seeking to deport to

Somalia, including all persons who were passengers on the failed ICE contract flight of December

7, 2017.


FACTS AND BACKROUND

Petitioners and class members are 92 individuals ordered removed to Somalia who ICE

detained and attempted to fly to that country on a plane that left Louisiana on December 7, 2017.

The flight never reached its destination, and was forced to return to the United States over 48 hours

later, on December 9. For more than two days, ICE agents subjected Petitioners to inhumane

conditions and mistreatments including acts of serious physical violence that resulted in still

untreated injuries.

ICE’s egregious misconduct before and during the flight has generated extraordinary

attention in the international media, and the attention has only become more intense because ICE

continues to cover up the truth by releasing a statement about the flight that contains false

statements. The level of media interest ICE has brought upon Petitioners while debasing them on

this flight is without precedent, and the story has been followed closely within Somalia.

Because of the attention ICE has brought upon Petitioners inside Somalia, together with

very recent escalations of Al Shabaab violence, Petitioners, and the class they represent, now face

a unique and elevated risk of being persecuted, tortured or killed in Somalia, including by the

fundamentalist group Al Shabaab. These new circumstances wrought by the December 7 flight

and the recent escalation in Al Shabaab violence constitute critical changed facts, entitling

Petitioners to additional process to challenge their removal orders.

BACKGROUND ON CONDITIONS IN SOMALIA

Somalia’s civil war in the early 1990s destroyed the country and left it without any

functioning government for two decades. Somalia’s recent effort to rebuild a central government

is fragile at best. The U.S. Departments of Homeland Security and State conducted their own

“thorough review of conditions in Somalia” and concluded in 2017 that the country “continues to


experience an ongoing armed conflict[,]” in which “Al-Shabaab controls large swaths of territory

in southern Somalia and conducts frequent asymmetric attacks on military and civilian targets in

government-controlled areas.”

The United States is taking an active part in the war against Al Shabaab inside Somalia. In

2014, a U.S. drone strike killed Al Shabaab leader Ahmed Abdi Godane, and this caused the group

to redirect its efforts towards terrorist attacks upon civilian targets, especially those it perceives as

Western or American.

During the same period of months when ICE targeted Petitioners for detention and removal

conditions deteriorated in Somalia. Al Shabaab’s attack on Western targets inside Somalia

continued during 2017, and then came the historic bomb blast in Mogadishu of October 14, 2017,

which killed over 500 people. See Harper Decl. at 23, Attached to Motion for Tempoary

Restraining Order. In turn, the U.S. military has now undertaken a campaign of bombings against

Al Shabaab. NYT. This development portends further escalations by Al Shabaab against persons

perceived to be American or Westernized.

U.S. DEPORTATIONS TO SOMALIA

Against this backdrop, and until recently, only a tiny number of the approximately 4800

Somali nationals with outstanding orders of removal who live in the United States were ever

actually removed to Somalia. See Harper Decl., Attached to Motion for Tempoary Restraining

Order.

During the years Somalia had no government ICE removed only a handful of individuals.

ICE placed almost all Somalis who were legally subject to removal under Orders of Supervision

(OSUPs) that provided them authorization to work and required only periodic check-ins with ICE,

often just one time per year or every six months. Even after a new Somali government took shape,


removals remained extremely rare. For example, in fiscal years 2012 and 2013 there were only 31

removals to Somalia in each year. When ICE did enforce a removal order, its agents would escort

the Somali national on a commercial flight, without shackles. The rest of the thousands of Somalis

with OSUPs continued to live otherwise normal lives in the United States with their families.

It was not until the very end of 2016 and into 2017 that ICE sought for the first time to

detain and then remove Somalis in larger numbers using charter flights. ICE deported 198 Somalis

in 2016 and that figure more than doubled to 521 in 2017, even as the overall rate of all ICE

removals for all nationalities declined during the same period. Petitioners, many who lived for

years with orders of supervision, have been caught up in ICE’s sudden move to dramatically

increase removals to Somalia.

THE DECEMBER 7 FLIGHT

Just on the heels of deteriorating conditions in Somalia, ICE opted to move forward and

remove Petitioners and the class they represent. ICE transferred Petitioners to its detention

facilities in Louisiana, where many were isolated from family and counsel.

In the very early morning of December 7, 2017, around 1:00-3:00 am, ICE officers woke

up the 92 Somali men and women and shackled them. ICE chained their wrists and waists in metal

cuffs and tethered their wrists to their waists. ICE separately bound their legs. ICE chained people

hours before they boarded the flight.When it was time for the flight to depart, ICE tightened the

shackles of the men and women and marched them to the plane. ICE put some people in restraint

masks.

Numerous ICE and contract guards, as many as 20 or 30, were on the December 7 flight.

The women and men were shackled on the plane and were instructed to remain seated.The plane

flew to Dakar, Senegal and landed for refueling. ICE claimed that while the plane was on the


ground there was a mechanical problem. ICE told the men and women that the plane needed to be

fixed and that they would have to wait 15 hours for a part to be flown in from the United States.

For the next 23 hours, the plane remained grounded at Dakar airport. During this entire time,

without a break, Petitioners and the class remained shackled at their wrists, waist, and legs.

The guards did not loosen the shackles, even when the deportees told them that the shackles

were painful because they were too tight, that their arms and legs were swollen and were bruised.

The guards did not permit the men and women to get off of the plane, to stand up, or to stretch and

walk around. The guards ordered the men and women to stay in their seats and used force to push

people down who stood up, even if they stood up to ask a question or to try and use the bathroom.

The guards started to physically abuse people using extreme force. Guards punched and kicked

people, choked them, stepped on their shackles, and threw them on the floor, drawing blood and

causing injury. People were placed in straight jackets and turned upside down. ICE and the contract

guards abused people to intimidate others on the plane. Petitioners and class members have injuries

that have not healed and that have not been given adequate medical treatment.

In addition to the physical abuse, guards yelled at the people on the plane, berating them

for being deportees, calling them criminals, and threatening to kill them. ICE officers and contract

guards denied people their medications, including people with diabetes and the HIV virus. ICE

and the contract guards deprived people of the bathroom. Some people were prevented from using

the bathroom as a form of punishment. During the trip, the bathroom toilets became full of human

waste and could not be used. Deportees were forced to try and urinate in water bottles and on

themselves.

After 23 hours in Dakar, the flight returned to the United States. The plane was not able to

proceed to its next scheduled stop, Djibouti. The plane landed in Miami, Florida on or about


Saturday, December 9, 2017. In total, the trip lasted about 48 hours. Petitioners and class members

were shackled the entire time, in addition to the time they spent shackled prior to being transported

to the plane.

Petitioners and the class members they represent were all detained in Florida upon arrival.

All of Petitioners and most of the class members are currently detained in Florida at Krome Service

Processing Center and Glades County Detention Center.

INCREASED DANGER DUE TO THE DECEMBER 7 FLIGHT

ICE’s ill-conceived and inhumane attempt to fly Petitioners into a war zone failed. The

horrific details of how ICE treated them on the December 7 plane reached Somalia on a wave of

international media coverage about the incident, including The New York Times, Newsweek and

multiple Somali news sources. See Somali News Articles, Attached to Motion for Temporary

Restraining Order. This media has driven intense public attention to the Petitioners and their

connections to the United States inside Somalia.

This media, together with very recent escalations in anti-Western terrorist violence,

constitute unique, changed circumstance because it puts Petitioners and the class in danger of

being targeted by the anti-American, anti-Western terrorist organization, Al Shabaab. Al Shabaab

targets people who are returning to Somalia after having been in the United States as enemies of

their cause who must be summarily executed. See Hunter Decl., Attached to Motion for Temporary

Restraining Order. The United States has recognized that Al Shabaab’s violent attacks on people

it deems enemies have caused what the United States has declared to be “one of the worst

humanitarian crises in the world.” 82 FR 4907 (renewing Temporary Protected Status to certain

Somalis in the United States based on the severe level of danger).


Further compounding the danger facing the Petitioners is the fact that the December 7 flight

occurred just weeks after Al Shabaab’s carried out a massive bomb attack in Mogadishu on

October 14, 2017, killing over 500 people. The gravity and importance of this bombing this attack

is reflected in how it is referred to as “Somalia’s 9/11.” The October 14th attack prompted the

United States to launch bombing raids against Al Shabaab inside Somalia in November of this

year.

The severe and very recent escalation of Al Shabaab’s terrorist violence, coupled with the

U.S. military’s retaliation, are additional new circumstances that add to the risk facing Petitioners

triggered by the aborted and abusive December 7 flight. Petitioners face imminent removal to

Somalia, where they will likely be killed or harmed due to changed circumstances in Somalia

created by the media coverage and notoriety of the aborted and abusive December 7 flight, together

with the very recent escalation of Al Shabaab anti-Western violence.


ARGUMENT

I. STANDARD FOR CLASS CERTIFICATION

Federal Rule of Civil Procedure Rule 23(a) sets forth the basic requirements for

maintaining a class action:

One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Rule 23(a) “must be read liberally in the context of civil rights suits… This is especially

true when the class action falls under Rule 23(b)(2).” Jones v. Diamond, 519 F.2d 1090, 1099 (5th

Cir. 1975) (footnote and citations omitted), en banc, 636 F.2d 1364 (5th Cir. 1981); see also

Campos v. I.N.S., 188 F.R.D. 656 (S.D. Fla. 1999). For a district court to certify a class action,

every putative class first must satisfy the prerequisites of “numerosity, commonality, typicality,

and adequacy of representation” and at least one of the alternative requirements of Rule 23(b).

Fed.R.Civ.P. 23; Mills v. Foremost Ins. Co., 511 F.3d 1300, 1307-08 (11th Cir. 2008) (citations

omitted). The Proposed Class here satisfies all four requirements of Rule 23(a), and qualifies for

class certification through Rule 23(b)(2).

Class certification is solely a procedural issue, and the court’s inquiry is limited to

determining whether the proposed class satisfies the requirements of Rule 23. See Eisen v. Carlisle

& Jacquelin, 417 U.S. 156, 177-78 (1974). In ruling on the motion for class certification, the court

must take the substantive allegations of the complaint as true. Id. at 177-78; Drayton v. Western


Auto Supply Co., 2002 WL 32508918, *6 (11th Cir. Mar. 11, 2002) (“It, therefore, is proper to

accept the substantive allegations contained in the complaint as true when assessing Rule 23

requirements.”); see also Hohider v. United Parcel Service, Inc., 243 F.R.D. 147 (W.D.Pa. 2007).

In addition, “[t]he Court resolves any doubt in favor of class certification.” In Re Carbon Dioxide

Antitrust Litigation, 149 F.R.D. 229, 232 (M.D. Fla. 1993) (“For the purposes of class certification

. . . the Court accepts the Plaintiffs’ substantive allegations as true.”) Id. Moreover, a court need

not conduct an inquiry into the merits of the Plaintiff’s claim as part of the class certification

proceedings. In re Netbank, Inc. Securities Litigation, 259 F.R.D. 656, 663 (N.D. Ga. 2009),

quoting Miller v. Mackey Int'l, Inc., 452 F.2d 424, 427 (5th Cir. 1971).

II. THE PROPOSED CLASS AND SUBCLASS MEET THE RULE 23(A) REQUIREMENTS.

Numerosity and Impracticality of Joinder

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Although there is no magic number of putative class members necessary to satisfy

the numerosity standard, the Eleventh Circuit has indicated that more than forty members is

generally enough to satisfy the rule. See Cox v. Amer. Cast Iron Pipe Co., 784 F.2d 1546, 1553

(11th Cir. 1986).

There were 92 individuals on the December 7, 2017 flight, and there are additional

individuals in the Miami Field Office jurisdiction who face removal to Somalia on the next flight.

This number satisfies the numerosity requirements of Rule 23(a)(1).

In addition, a court may consider a number of other facts pertaining to numerosity,

including the ease with which the class members may be identified and the nature of the action.

Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). There are already

almost 100 identified members of the class. However, ICE consistently transfers detainees


amongst its many facilities nationwide, especially when it is seeking to fill a contract deportation

flight. Thus, the number and identity of Somalian deportees under the jurisdiction of the Miami

Field Office is fluid and changing, and it could include additional members who are transferred to

the Miami jurisdiction in the future. It is not only impracticable, but impossible to join all class

members, as the exact number and identities of all Class Members cannot be ascertained. Phillips

v. Joint Legis. Comm. On Performance & Expenditure Review of Miss., 637 F.2d 1014, 1022 (5th

Cir. 1981) (noting that future class members are necessarily unidentifiable and therefore joining

them is impracticable) (quoting Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir.

1974) (per curiam)). The numerosity requirement of Rule 23(a)(1) is therefore satisfied.

Commonality

Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.”

Traditionally, commonality refers to the group characteristics of the class as a whole. Prado-

Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). However, this prerequisite

does not mandate that all questions of law or fact are common; a single common question of law

or fact is sufficient to satisfy the commonality requirement, as long as it affects all class members

alike. See In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 685 (S.D. Fla. 2004).

For that reason, the commonality requirement is “easily met.” 1 Herbert B. Newberg, Newberg on

Class Actions § 3.10, at 274 (4th ed. 2002). Indeed, “[c]ommonality may be established where

there are allegations of common conduct or standardized conduct by the defendant directed toward

members of the proposed class.” Strube v. Am. Equity Inv. Life Ins. Co., 226 F.R.D. 688, 695 (M.D.

Fla. 2005).

In this case, members of the proposed class are all ICE detainees within the Miami Field

Office jurisdiction with final orders of removal and whom ICE is seeking or will be seeking to


remove to Somalia. Each Class Member has a final order of removal, ICE is seeking to deport each

Class Member to Somalia, and each Class Member has the same basis for a motion to reopen their

removal order based on the changed circumstances arising from the December 7, 2017 flight.

The Class Members’ basis for a motion to reopen their removal orders based on changed

circumstances all stem from the botched December 7, 2017 flight, and this fact alone requires a

finding of commonality. Plaintiffs need only show a “common nucleus of operative facts” to

satisfy Rule 23(a)(2). Oshana v. Coca-Cola Co., 225 F.R.D. 575, 581 (N.D. Ill. 2005); In re

Currency Conversion Fee Antitrust Litigation, 224 F.R.D. 555, 562 (S.D.N.Y. 2004) (“[T]he

commonality requirement does not require that each class member have identical claims as long

as at least one common question of fact or law is evident.”) Although individual Petitioners were

each abused in some different ways on the botched December 7, 2017 flight, “factual differences

among the claims of the putative class members do not defeat certification.” Cooper v. Southern

Co., 390 F.3d 695, 713 (11th Cir. 2004) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.

1994)) (overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006)). The

controlling questions of fact and law in this case are common to the entire class. Accordingly, the

commonality requirement of Rule 23(a)(2) is satisfied.

Typicality

Fed. R. Civ. P. 23(a)(3) requires that “the claims or defenses of the representative parties

[be] typical of the claims or defenses of the class.” The focus of typicality is whether the class

representative’s interest is aligned enough with the proposed class members to stand in their shoes

for purposes of the litigation and bind them in a judgment on the merits. See General Tel. Co. v.

Falcon, 457 U.S. 147, 156 (1982) (citation omitted); Kornberg v. Carnival Cruise Lines, Inc., 741

F.2d 1332, 1337 (11th Cir. 1984); Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1275 (11th Cir.


2009). “A class representative must possess the same interest and suffer the same injury as the

class members in order to be typical under Rule 23(a)(3).” Busby v. JRHBW Realty, Inc., 513 F.3d

1314, 1322 (11th Cir. 2008). Thus, typicality is often met when, in proving his case, the

representative plaintiff establishes the elements needed to prove the class members' case. See

Brooks v. Southern Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla. 1990).

Moreover, the “typicality requirement may be satisfied even if there are factual distinctions

between the claims of the named plaintiffs and those of other class members,” so long as the named

representatives’ claims share “the same essential characteristics as the claims of the class at large.”

Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985) (citations omitted).

Here, the claims and interests of individual Petitioners in moving to reopen their removal

orders based on changed circumstances stemming from the failed December 7, 2017 flight are

identical to those of the putative Class Members. All Class members are at risk of being removed

to Somalia and face danger of being killed or tortured in Somalia as a result of the widespread

media coverage of the botched flight. The claims of individual Petitioners are based on the same

legal theory as the claims of all other Class Members – that they cannot be deported to a county,

i.e. Somalia, where they face a likelihood of persecution or torture. They all have final removal

orders and they all have the same basis to file a motion to reopen their removal orders.

Despite these facts, ICE still intends to deport all Class Members without regards to the

increased danger they now face in Somalia. The Class Members also face the same danger that

they will be abused by ICE and its agents on a new deportation flight to Somalia. The typicality

requirement is met.

Adequacy of Representation


The fourth element of the Rule 23(a) analysis requires that the “representative parties will

fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement

“involves questions of whether plaintiffs’ counsel are qualified, experienced, and generally able

to conduct the proposed litigation, and of whether plaintiffs have interests antagonistic to those of

the rest of the class.” Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985); see also Valley Drug

Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003).

These criteria are satisfied in this case. There is no conflict between individuals Petitioners

or their counsel and putative Class Members. Individual Petitioners are represented by attorneys

employed by nonprofit organizations and academic institutions. Their organizations have

extensive experience in class action cases involving the civil rights of immigrants. Their

organization have previously litigated similar issues in federal courts on behalf of immigrants,

detainees and deportees. The attorneys have previously litigated class actions and have the

personnel and the resources to fully litigate this action.

Individual Petitioners have no interest antagonistic to or in conflict with the interests of the

Class Members they seek to represent. Individual Petitioners and the proposed class share the

common goal of enjoining their deportation flight or flights to Somalia until the immigration courts

can determine whether the changed circumstances stemming from the botched December 7, 2017

flight provide a sufficient basis for them to reopen their removal orders. There is no likelihood of

conflicts or antagonistic interests developing between individual Petitioners and the class they

represent because individual Petitioners seek only equitable relief based on the same set of facts.

III. RESPONDENTS’ UNIFORM CONDUCT JUSTIFIES CLASS-WIDE RELIEF.

Certification is appropriate pursuant to Rule 23(b)(2) when the party opposing the class

has acted or refused to act on grounds that apply generally to the class, so that final injunctive


relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R.

Civ. P. 23(b)(2). “The writers of Rule 23 intended that subsection (b)(2) foster institutional reform

by facilitating suits that challenge widespread rights violations of people who are individually

unable to vindicate their own rights.” Baby Neal, 43 F.3d at 64.

In certifying a class pursuant to Rule 23(b)(2), two basic requirements must be met: (1) the

class members must have been harmed in essentially the same way by the defendant’s acts; and

(2) the common injury may properly be addressed by class-wide injunctive or equitable remedies.

Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir. 1983) (“[T]he claims contemplated

in a [Rule 23] (b)(2) action are class claims, claims resting on the same grounds and applying more

or less equally to all members of the class.”) (emphasis in original). Where these two requirements

are met, the class members’ interests are sufficiently cohesive that absent members will be

adequately represented. Id. at 1155 n. 8 (“[T]he (b)(2) class is distinguished from the (b)(3) class

by class cohesiveness. Injuries remedied through (b)(2) actions are really group, as opposed to

individual injuries.”); Lemon v. Int’l Union of Operating Eng’rs., Local No. 139, AFL-CIO, 216

F.3d 577, 580 (7th Cir. 2000) (“Rule 23(b)(2) operates under the presumption that the interests of

the class members are cohesive and homogeneous such that the case will not depend on the

adjudication of facts particular to any subset of the class nor require a remedy that differentiates

materially among class members.”). “The members of a [Rule 23](b)(2) class are generally bound

together through ‘pre-existing or continuing legal relationships' or by some significant common

trait such as race or gender.” Holmes, 706 F.2d 1155 n. 8.

Here, ICE plans to remove all Class Members with final removal orders to Somalia. The

Respondents’ deportation of Class Members to Somalia uniformly harms a specific class of people

with final orders of removal and falls squarely within the ambit of Rule 23(b)(2). The widespread


notoriety of the botched December 7, 2017 flight injures all Class Members uniformly. Individual

Petitioners request a remedy that will both provide relief to the entire class and satisfy the strictures

of Rule 65(d). As all putative class members are immigrant detainees with final orders of removal

and whom ICE seeks to deport to Somalia, they are bound by a common trait that predominates in

the litigation. Accordingly, the requirements of Rule 23(b)(2) are met.

IV. COURT SHOULD APPOINT CLASS COUNSEL.

Fed. R. Civ. P. 23(g)(1) provides that “unless a statute provides otherwise, a court that

certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g)(1)(A) outlines the factors

relevant to the appointment of class counsel:

(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.

All of these factors militate in favor of appointing the undersigned as class counsel. As

already noted, the undersigned counsel are attorneys employed by nonprofit organizations and

academic institutions with extensive experience in class action cases for immigrants. They are

familiar with the applicable law and have extensive experience in handling class actions and

immigrants’ rights claims. In addition, the undersigned have already done substantial work

investigating and identifying the claims of the plaintiff class. They have sufficient resources that

they will commit to representing the class.

WHEREFORE, Petitioners request that the Court certify the class of detainees under the

jurisdiction of the Miami Field Office of Immigration & Customs Enforcement with final orders

of removal and whom ICE is seeking or will be seeking to deport to Somalia, and appoint

Petitioners’ counsel as the class counsel and individual Petitioners as class representatives.


Date: December 18, 2017 Respectfully submitted,

By: /s/ Rebecca Sharpless Rebecca Sharpless Florida Bar No. 0131024 Immigration Clinic University of Miami School of Law 1311 Miller Drive Suite E-273 Coral Gables, Florida 33146 Tel: (305) 284-3576, direct Tel: (305) 284-6092, clinic [email protected] Lisa Lehner Florida Bar No. 382191 Andrea Crumrine Americans for Immigrant Justice 3000 Biscayne Blvd., Suite 400 Miami, FL 33137 Phone: (305) 573-1106 [email protected] [email protected]

Benjamin Casper Sanchez* James H. Binger Center for New Americans University of Minnesota Law School 190 Mondale Hall 229 19th Avenue South Minneapolis, MN 55455 (612) 625-6484 [email protected] *Motion to Appear Pro Hac Vice Forthcoming Andrea Montavon-McKillip Fla. Bar No. 56401 Legal Aid Service of Broward County, Inc. 491 N. State Rd. 7 Plantation, FL 33317 (954) 736-2493 (954) 736-2484 (fax) [email protected]

Law students Mary Georgevich, Alexis Dutt, and Timothy Sanders from the University of Minnesota Law School contributed to this pleading.


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MIAMI DIVISION

Farah IBRAHIM, Ibrahim MUSA, Khalid Abdallah MOHMED, Ismail JIMCALE ABDULLAH, Abdiwali Ahmed SIYAD, Ismael Abdirashed MOHAMED, and Khadar Abdi IBRAHIM, on behalf of themselves and all those similarly situated, Plaintiffs/Petitioners, v. Juan ACOSTA, Assistant Field Officer Director, Miami Field Office, Immigration and Customs Enforcement; David HARDIN, Sheriff of Glades County; Marc J. MOORE, Field Office Director, Miami Field Office, Immigration and Customs Enforcement; Thomas HOMAN, Acting Director, Immigration and Customs Enforcement; Kirstjen NIELSEN, Secretary of Homeland Security. Defendants/Respondents.

Case No.: CLASS ACTION

[PROPOSED] ORDER GRANTING PLAINTIFF’S/PETITIONER’S MOTION FOR CLASS CERTIFICATION

.

ORDER GRANTING PLAINTIFFS’/PETITIONERS’ MOTION FOR CLASS CERTIFICATION

THIS CAUSE is before the Court on the Plaintiffs’/Petitioners’ Motion for Class

Certification and the Court, having reviewed the Motion and being fully advised in the premises,

for the reasons explained in this Order, finds that the Class should be certified pursuant to Federal

Rule of Civil Procedure 23.

Accordingly, it is ORDERED and ADJUDGED that Plaintiffs’/Petitioners’ Motion is

GRANTED.


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I. BACKGROUND

In this putative class-action lawsuit the Plaintiffs/Petitioners seek class-wide injunctive relief and

damages on behalf of a class defined as: All persons with final orders of removal and currently facing

removal to Somalia who are located within the jurisdiction of the Miami ICE Field Office (“Class

Members”), including all persons whom ICE sought to deport to Somalia on the December 7, 2017

contract flight (“Subclass Members”). The Plaintiffs/Petitioners have alleged that the

Defendants/Respondents, as governmental officials with the Department of Homeland Security,

Immigration and Customs Enforcement and the Glades County, Florida Sheriff’s Office are denying the

Class Members constitutional due process by removing them back to Somalia without further process.

Plaintiffs’/Petitioners have alleged that Defendants/Respondents must provide them with a chance to

demonstrate that substantive immigration law forbids their current removal to Somalia under the current

conditions. Plaintiffs/Petitioners have alleged that they all face significant risk of persecution and likely

death at the hands of the terrorist group, Al Shabaab, if they are returned to Somalia.

The Plaintiffs have moved to certify a class, that includes 92 people who ICE subjected to inhumane

conditions and egregious abuse during a failed attempt to deport them by plane to Somalia on December

7, 2017. For almost two days, the men and women sat bound and shackled in an ICE-chartered airplane.

ICE ultimately aborted the trip and flew back to the United States, landing in Miami. In the early morning

of Saturday, December 9th, ICE transported the still-shackled detainees to two detention centers in the

South Florida area. Plaintiffs/Petitioners also seek redress for the injuries that they suffered at the hands

of ICE during the December 7, 2017 flight.

Plaintiffs/Petitioners and the class they represent have asked this Court to issue an order preventing

their removal to Somalia until 1) they are afforded a full and fair opportunity to seek reopening of their

removal cases; 2) they have received adequate treatment for injuries sustained on the December 7 flight;

and 3) Defendants/Respondents have taken adequate measures to ensure that they will not be abused on

the next flight, including but not limited to the guarantee that none of the ICE and contract officers on the

December 7 flight will be on any new flight[CBL5] .Plaintiffs/Respondents and the class further requested

that the Court issue an order 1) forbidding Defendants/Respondents from transferring

Plaintiffs/Respondents and the class out of Krome Service Processing Center in Miami, Florida or Glades

Detention Center in Moore Haven, Florida; and 2) ordering Defendants/Respondents to return to Krome

or Glades anyone who has already been transferred.


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II. LEGAL STANDARDS

The decision to certify a class action is governed by Federal Rule of Civil Procedure 23.

The party seeking certification must demonstrate, first, that: “(1) the class is so numerous that

joinder of all members is impracticable; (2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the

class; and (4) the representative parties will fairly and adequately protect the interests of the class.”

Fed. R. Civ. P. 23(a). “A class action may be maintained if Rule 23(a) is satisfied and if . . . the

court finds that the questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

“The class action is an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550

(2011) (quotations omitted). Rule 23’s “four requirements – numerosity, commonality, typicality,

and adequate representation – effectively limit the class claims to those fairly encompassed by the

named plaintiff’s claims.” Id. (quotations omitted).

III. DISCUSSION

1. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that the class be “so numerous that

joinder of all members is impracticable.” While there is no fixed rule, generally a class size less

than twenty-one is inadequate, while a class size of more than forty is adequate. Cheney v.

Cyberguard Corp., 213 F.R.D. 484, 489-90 (S.D. Fla. 2003) (citing Cox v. Am. Cast Iron Pipe

Co., 784 F.2d 1546, 1553 (11th Cir. 1986)). A plaintiff must present some evidence that the class

to be certified will satisfy the numerosity requirement of Rule 23. The class meets the numerosity

requirement of Rule 23(a)(1), as there were 92 individuals on the December 7 flight and other

individuals who face removal to Somalia on the next flight in the Miami Field Office jurisdiction.

2. Commonality

Rule 23(a)(2) requires that “there are questions of law or fact common to the class.”

“Commonality requires the plaintiff to demonstrate that the class members have suffered the same

injury.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citation omitted). The

common contention of injury “must be of such a nature that it is capable of class wide resolution


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– which means that determination of its truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke.” Id. “What matters to class certification . . . is . . .

the capacity of a class wide proceeding to generate common answers apt to drive the resolution of

the litigation. Id. (citation omitted). The class meets the commonality requirement of Rule

23(a)(2). Questions of law and fact presented by Plaintiffs/Petitioners’ cases are common to other

members of the class. The common contentions that unite the claims of the class are that each

member has a final order of removal, ICE is seeking to deport each class member to Somalia, and

each class member has the same basis for a motion to reopen their removal order based on changed

circumstances arising from the December 7 flight.

3. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical

of the claims or defenses of the class.” “To meet the typicality requirement, the named

representatives must be able to establish the bulk of the elements of each class member’s claims

when they prove their own claims.” Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla.

1990). Plaintiffs/Petitioners’ claims are typical of those of the class because they all have final

orders of removal are eligible to file motions to reopen their removal orders based on changed

circumstances due to the December 7 flight.

4. Adequate Representation

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect

the interests of the class.” The requirement of adequate representation addresses two issues: “(1)

whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the

proposed litigation and . . . (2) whether plaintiffs have interests antagonistic to those of the rest

of the class.” Cheney v. Cyberguard Corp., 213 F.R.D. 484, 495 (S.D. Fla. 2003) (citations

omitted). There is no argument that Plaintiffs’ counsel is not fully qualified, experienced, and

generally able to prosecute this class action. Class counsel has experience in immigration-related

class action cases and will adequately represent the interests of the class.

5. Predominance

After all the requirements of Rule 23(a) have been met, a court must still determine that

“the questions of law or fact common to class members predominate over any questions affecting

only individual members, and that a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “Common issues of fact

and law predominate if they have a direct impact on every class member’s effort to establish


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liability and on every class member’s entitlement to injunctive and monetary relief.” Klay v.

Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004). The proposed class satisfies the requirements

of Rule 23(b)(2) for the injunctive relief sought, as Defendants/Respondents have acted on grounds

generally applicable to the class, making equitable relief appropriate as to the class as a whole.

Finally, the Court finds that resolving the issues raised by the Plaintiffs in a class action

would be superior to other available methods to fairly and efficiently resolve this controversy.

Individual suits by each member of the class would be impracticable because they would create a

risk of inconsistent or varying adjudications and would establish incompatible standards of conduct

for the parties opposing the class. In addition, the class members are all detained and indigent and

lack the financial resources to vindicate their rights in Court.

CONCLUSION

For the reasons explained in this Order, it is ORDERED and ADJUDGED that

the Plaintiff’s Corrected Motion for Class Certification is GRANTED.

DONE and ORDERED in Chambers at Miami, Florida, this ____ day of December 2017.

________________________________________

THE HONORABLE _____________________

UNITED STATES MAGISTRATE JUDGE


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