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Ibrahim v. Acosta

United States District Court, S.D. Florida

June 21, 2018

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.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Plaintiffs' Motion for Class Certification (the “Motion”) [ECF No. 4]. The Court has reviewed the Motion, the parties' briefs and applicable law, and is otherwise fully advised. For the reasons that follow, the Motion shall be granted.

         I. BACKGROUND[1]

         Named Plaintiffs, Farah Ibrahim, Ibrahim Musa, Khalid Abdallah Mohmed, Ismail Jimcale, Abdiwali Ahmed Siyad, Ismael Abdirashed Mohamed, and Khadar Abdi Mohamed, are Somali nationals with final orders of removal who were present during United States Immigration and Customs Enforcement's (“ICE”) unsuccessful attempt to deport them on a December 7, 2017, flight. Plaintiffs allege they were subjected to inhumane conditions and egregious abuse on the December 7th flight. Plaintiffs further contend that the international news attention surrounding the botched deportation flight has exacerbated circumstances that now make their return to Somalia unsafe. In their Complaint, Plaintiffs seek habeas and injunctive relief pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1331, seeking the opportunity to move to reopen their removal cases to assert claims for asylum, withholding of removal, or relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”) based on new circumstances that did not exist at the time their initial removal orders were entered. Plaintiffs seek to stay their removals until their motions to reopen are heard.

         Plaintiffs initially sought to represent and certify 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 [], including all persons whom ICE sought to deport to Somalia on the December 7, 2017 contract flight.” See [ECF No. 4, ¶ 1]. Plaintiffs have since filed a supplemental brief narrowing the proposed class definition to the “92 individuals[2] with removal orders who were present on the December 7, 2017, attempted flight to Somalia.” See [ECF No. 112, p.3].

         II. DISCUSSION

         Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. The party seeking certification must satisfy the four threshold requirements of Rule 23(a) 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). The “putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in 23(b).” Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004). A class is properly certified under Rule 23(b)(2) “when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).

         A. Numerosity

         Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). 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)). As part of the numerosity analysis, a court must determine whether the class definition is adequate and whether an identifiable class can be ascertained from objective criteria. Bussey v. Macon Cnty. Greyhound Park, Inc., 562 Fed.Appx. 782, 787 (11th Cir. 2014); O'Neill v. The Home Depot U.S.A., Inc., 243 F.R.D. 469, 477 (S.D. Fla. 2006).

         As a threshold matter, Defendants argue that Plaintiffs have failed to establish the prerequisite of an adequately defined and ascertainable class because Plaintiffs have advanced varying proposed class definitions. Defendants argue that the inclusion of “all persons with final orders of removal . . . whom ICE is seeking or will be seeking to deport to Somalia” in Plaintiff's initial proposed class definition renders the class unascertainable. However, Plaintiffs subsequently revised their proposed class definition and eliminated this arguably unascertainable provision. See Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1133 n. 16 (11th Cir. 2004) (noting “that class definitions may undergo modification, possibly several times, during the course of a class action.”). Set forth at present, the Court finds that the class definition of “92 individuals with removal orders who were present on the December 7, 2017, attempted flight to Somalia” is adequately defined and ascertainable. In addition, while unchallenged by Defendants, the Court finds that the class size of 64 individuals is sufficient to satisfy the numerosity requirement. See Salas-Mateo v. Ochoa, 03-14357-CIV, 2004 WL 1824124, at *2 (S.D. Fla. Mar. 26, 2004) (finding putative class size of forty individuals sufficient to satisfy numerosity requirement); Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding putative class size of thirty-one individuals sufficient).

         B. Commonality

         To obtain class certification, Plaintiffs must establish that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.” Dukes, 564 U.S. at 350 (internal quotations omitted). The common contention of injury “must be of such a nature that it is capable of class wide resolution - 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). Commonality is met where, notwithstanding some factual differences in the putative class members' claims, the controlling questions of law and fact are common to the entire class. See Cooper v. S. Co., 390 F.3d 695, 714 (11th Cir. 2004) overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (stating that “factual differences among the claims of the putative class members do not defeat certification.”).

         The class meets the commonality requirement of Rule 23(a)(2) because the questions of law and fact to be resolved in this action are common to the members of the class. According to the Complaint, the putative class members' claims arise out of a common nucleus of fact in that they have final orders of removal, they were present on the attempted December 7th deportation flight to Somalia, and they contend that the circumstances surrounding the December 7th flight have impacted their risk of being tortured or persecuted upon return to Somalia. The putative class members have raised common issues of law in this action as to whether due process entitles them to an opportunity to move to reopen their immigration cases to assert claims for asylum, withholding of removal, or relief under the Convention Against Torture based on changed conditions. Finally, the claims raised in this action are capable of class-wide resolution as any relief ultimately awarded by the Court will be as to all of the class members or none of the class members.

         C. ...


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