Calderon Jimenez v. Cronen et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
LILIAN PAHOLA CALDERON JIMENEZ and )
LUIS GORDILLO, et al., 	)
individually and on behalf of all 	)
others similarly situated, 	)
) 	Civil Action
Plaintiffs-Petitioners, 	) 	No. 18-cv-10225-PBS
)
v. 	)
)
KRISTI NOEM, et al., 	)
)
Defendants-Respondents. 	)
______________________________ 	)
ORDER
January 23, 2026
Saris, J.
Class counsel has moved to enforce the class action settlement
agreement in this case on behalf of Gilberto Alves da Silva. Class
counsel 	argues 	that 	the 	settlement 	agreement 	bars 	Mr. 	da 	Silva’s
removal 	from 	the 	United 	States 	while 	his 	joint 	motion 	to 	reopen
and 	dismiss 	his 	removal 	proceedings 	(“JMTR”) 	is 	pending 	in
immigration court. Class counsel also asserts that Defendants have
violated 	the 	settlement 	agreement’s 	reporting 	provision. 	After
hearing, the Court allows the motion with respect to Mr. da Silva’s
removal 	and 	reserves 	ruling 	with 	respect 	to 	the 	reporting
provision.
The class action settlement agreement was approved on January
16, 	2025, 	by 	another 	judge 	of 	this 	Court 	who 	has 	since 	retired.
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The 	agreement 	settled 	claims 	that 	Defendants 	were 	unlawfully
removing 	certain 	noncitizen 	spouses 	of 	U.S. 	citizens 	who 	were
trying 	to 	obtain 	lawful 	permanent 	residence 	through 	a 	process
authorized by statute and regulation that allowed the noncitizens
to primarily remain in the United States. The settlement agreement
defines the class to include:
any 	noncitizen 	spouse 	of 	a 	U.S. 	citizen 	who 	(1) 	has 	a
final 	order 	of 	removal 	and 	has 	not 	departed 	the 	United
States 	under 	that 	order, 	(2) 	is 	the 	beneficiary 	of 	a
pending 	or 	approved 	I-130, 	Petition 	for 	Alien 	Relative
filed by the U.S. citizen spouse, (3) is not ineligible
for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i)
or 	(vi), 	and 	(4) 	resides 	or 	is 	detained 	within 	the
jurisdiction 	of 	[U.S. 	Immigration 	and 	Customs
Enforcement (“ICE”), Enforcement and Removal Operations
in 	Boston 	(“Boston 	ERO”)] 	(comprising 	Massachusetts,
Rhode 	Island, 	Connecticut, 	Vermont, 	New 	Hampshire, 	and
Maine).
Dkt. 	654-1 	¶ 	I(C).1 	Under 	the 	agreement, 	class 	members 	are
protected 	from 	certain 	ICE 	enforcement 	actions 	unless 	ICE
1 	An 	I-130 	petition 	is 	“a 	visa 	petition 	that 	a 	U.S. 	citizen 	or
legal 	permanent 	resident 	may 	file 	on 	behalf 	of 	an 	alien 	relative
as 	the 	first 	step 	in 	that 	relative’s 	application 	for 	[lawful
permanent 	residence].” 	Lee 	v. 	Barr, 	975 	F.3d 	69, 	72 	(1st 	Cir.
2020). 	Once 	the 	I-130 	petition 	is 	approved, 	the 	noncitizen
generally 	must 	apply 	for 	an 	immigrant 	visa 	at 	a 	consular 	office
abroad. 	See 	Teles 	de 	Menezes 	v. 	Rubio, 	156 	F.4th 	1, 	3-4, 	4 	n.2
(1st 	Cir. 	2025). 	If 	a 	noncitizen 	who 	is 	in 	the 	United 	States
unlawfully 	and 	has 	a 	final 	removal 	order 	leaves 	the 	country 	for
consular processing, however, he would be ineligible for a visa on
certain inadmissibility grounds. See 8 U.S.C. § 1182(a)(9)(A)-(B).
The provisional waiver mechanism permits a noncitizen applying for
an 	immigrant 	visa 	via 	this 	process 	to 	seek 	a 	waiver 	of 	some 	of
these 	inadmissibility 	grounds 	while 	remaining 	within 	the 	United
States, 	which, 	in 	turn, 	means 	that 	the 	noncitizen 	must 	travel
abroad 	only 	briefly 	to 	secure 	his 	visa. 	See 	Jimenez 	v. 	Nielsen,
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determines 	that 	a 	specific 	class 	member 	poses 	a 	threat 	to 	public
safety or national security.
As 	relevant 	here, 	the 	settlement 	agreement 	also 	establishes
a process for class members to eliminate their final removal orders
via a JMTR before an immigration court or the Board of Immigration
Appeals 	(“BIA”). 	Class 	members 	may 	submit 	a 	request 	that 	meets
certain requirements to ICE’s Office of the Principal Legal Advisor
(“ICE OPLA”) seeking ICE OPLA’s consent to a JMTR. See Dkt. 654-1
¶ II(B). The settlement agreement provides that:
ICE OPLA attorneys who receive requests to join motions
to reopen and dismiss will review each request on a case-
by-case 	basis 	and 	will 	presumptively 	join 	motions 	to
reopen and dismiss filed by Noncitizen Class Members who
comply 	with 	the 	requirements 	in 	Section 	II(B) 	[for 	a
JMTR 	request] 	and 	demonstrate 	they 	are 	prima 	facie
eligible 	for 	either 	(a) 	consular 	processing 	utilizing
the 	Form 	I-601A, 	or 	(b) 	adjustment 	of 	status. 	ICE 	OPLA
attorneys 	may 	decline 	to 	join 	a 	motion 	to 	reopen 	for 	a
Noncitizen Class Member who has met the requirements of
this paragraph and II(B) if ICE determines, in its sole
discretion based on an assessment of the totality of the
facts 	and 	circumstances, 	that 	an 	individual 	(1) 	is 	a
threat 	to 	public 	safety, 	typically 	because 	of 	serious
criminal conduct; (2) is a threat to national security;
or (3) has engaged in serious immigration benefit fraud
or is a repeat immigration violator.
Id. 	¶ 	II(A). 	A 	JMTR 	is 	the 	primary 	means 	by 	which 	many 	class
members may eliminate their final removal orders because a JMTR is
not 	subject 	to 	certain 	limitations 	on 	motions 	to 	reopen 	filed 	by
a 	noncitizen 	alone. 	See 	8 	C.F.R. 	§§ 	1003.2(c)(3)(iii),
334 	F. 	Supp. 	3d 	370, 	377-78 	(D. 	Mass. 	2018) 	(describing 	the
provisional waiver process).
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1003.23(b)(4)(iv). And without final removal orders, class members
may more easily pursue lawful permanent residence as the spouse of
a U.S. citizen while remaining primarily within the country.
Mr. da Silva, a citizen of Brazil and a class member, resides
in Everett, Massachusetts. He has a final removal order entered in
absentia by an immigration court in Texas. Mr. da Silva is married
to a U.S. citizen, who filed a I-130, Petition for Alien Relative,
on his behalf. U.S. Citizenship and Immigration Services approved
that petition in December 2024.
On 	or 	about 	December 	16, 	2025, 	ICE 	detained 	Mr. 	da 	Silva
while 	he 	was 	traveling 	in 	Florida 	and 	was 	stopped 	for 	speeding.
Besides 	this 	speeding 	ticket, 	Mr. 	da 	Silva 	has 	no 	other 	criminal
record. 	He 	is 	currently 	detained 	at 	the 	Florida 	Soft 	Side 	South
Detention 	Facility 	in 	Ochopee, 	Florida, 	also 	known 	as 	“Alligator
Alcatraz.” 	On 	December 	19, 	Mr. 	da 	Silva’s 	attorney 	submitted 	a
request 	pursuant 	to 	the 	settlement 	agreement 	seeking 	ICE 	OPLA’s
consent 	to 	a 	JMTR. 	ICE 	OPLA 	agreed 	to 	the 	request, 	and 	Mr. 	da
Silva’s JMTR was filed in immigration court on January 8, 2026.
It 	is 	undisputed 	that 	Mr. 	da 	Silva 	is 	a 	class 	member. 	The
parties disagree, however, as to whether the settlement agreement
permits 	the 	government 	to 	remove 	Mr. 	da 	Silva 	while 	his 	JMTR 	is
pending in immigration court. Defendants argue that the settlement
agreement imposes no bar on Mr. da Silva’s removal because he was
arrested and detained in Florida and the settlement agreement only
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restricts 	ICE’s 	removal 	of 	individuals 	within 	Boston 	ERO’s
jurisdiction. 	Class 	counsel 	disagrees, 	contending 	that 	ICE’s
removal 	of 	Mr. 	da 	Silva 	would 	vitiate 	his 	right 	under 	the
settlement agreement to seek elimination of his removal order via
a JMTR.
Federal 	common 	law 	governs 	the 	adjudication 	of 	a 	motion 	to
enforce 	a 	settlement 	agreement 	in 	“a 	case 	like 	this 	one, 	arising
under 	federal 	law 	and 	brought 	in 	federal 	court.”2 	Commonwealth
Sch., 	Inc. 	v. 	Commonwealth 	Acad. 	Holdings 	LLC, 	994 	F.3d 	77, 	85
(1st 	Cir. 	2021). 	“[F]ederal 	common 	law 	incorporates 	general
principles 	of 	contract 	. 	. 	. 	law.” 	InterGen 	N.V. 	v. 	Grina, 	344
F.3d 	134, 	144 	(1st 	Cir. 	2003); 	see 	Nault 	v. 	United 	States, 	517
F.3d 2, 4 (1st Cir. 2008) (explaining that courts apply “the same
basic rules that govern the interpretation of ordinary contracts”
when 	construing 	a 	settlement 	agreement). 	Courts 	applying 	federal
common 	law 	“are 	normally 	‘free 	to 	borrow 	from 	state 	law,’ 	absent
any conflict between federal interests and the borrowed state law.”
Commonwealth 	Sch., 	994 	F.3d 	at 	85 	(quoting 	McCarthy 	v. 	Azure, 	22
F.3d 351, 356 (1st Cir. 1994)).
The 	Court 	concludes 	that 	the 	removal 	of 	a 	class 	member 	with
a 	pending 	JMTR 	request 	before 	ICE 	OPLA 	or 	a 	pending 	JMTR 	in 	an
immigration 	court 	or 	the 	BIA 	violates 	the 	settlement 	agreement’s
2 The settlement agreement in this case also contains a choice-of-
law provision selecting federal law. See Dkt. 654-1 ¶ IX(I).
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implied 	covenant 	of 	good 	faith 	and 	fair 	dealing, 	regardless 	of
where 	the 	class 	member 	is 	arrested 	or 	detained 	within 	the 	United
States. 	“Every 	contract 	imposes 	upon 	each 	party 	a 	duty 	of 	good
faith 	and 	fair 	dealing 	in 	its 	performance 	. 	. 	. 	.” 	Restatement
(Second) 	of 	Contracts 	§ 	205 	(Am. 	L. 	Inst. 	1981); 	see 	SMS 	Fin.
Recovery 	Servs., 	LLC 	v. 	Samaritan 	Senior 	Vill., 	Inc., 	142 	F.4th
39, 	48 	(1st 	Cir. 	2025). 	This 	duty 	“provides 	‘that 	neither 	party
shall 	do 	anything 	that 	will 	have 	the 	effect 	of 	destroying 	or
injuring the right of the other party to receive the fruits of the
contract.’” 	Axis 	Ins. 	Co. 	v. 	Barracuda 	Networks, 	Inc., 	160 	F.4th
1, 	10 	(1st 	Cir. 	2025) 	(quoting 	Anthony’s 	Pier 	Four, 	Inc. 	v. 	HBC
Assocs., 	583 	N.E.2d 	806, 	820 	(Mass. 	1991)). 	The 	implied 	covenant
of 	good 	faith 	and 	fair 	dealing 	also 	requires 	“faithfulness 	to 	an
agreed 	common 	purpose 	and 	consistency 	with 	the 	justified
expectations 	of 	the 	other 	party.” 	Restatement 	(Second) 	of
Contracts § 205 cmt. a; see SMS Fin., 142 F.4th at 48 (explaining
that 	a 	breach 	of 	the 	implied 	covenant 	“occurs 	when 	one 	party
violates the reasonable expectations of the other” (quoting Robert
& Ardis James Found. v. Meyers, 48 N.E.3d 442, 449 (Mass. 2016))).
Allowing 	ICE 	to 	remove 	a 	class 	member 	with 	a 	pending 	JMTR
request before ICE OPLA or a pending JMTR in immigration court or
the BIA would destroy the class member’s right to benefit from the
JMTR 	provision 	in 	the 	settlement 	agreement. 	The 	purpose 	of 	the
JMTR 	provision 	is 	to 	provide 	a 	mechanism 	for 	class 	members 	to
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eliminate their final removal orders, thereby removing an obstacle
to their pursuit of lawful permanent residence. Executing a class
member’s removal order while he is trying to use this mechanism to
eliminate 	that 	same 	removal 	order 	plainly 	eviscerates 	the 	class
member’s ability to secure a benefit contemplated by the settlement
agreement. 	The 	JMTR 	provision 	creates 	a 	justifiable 	expectation
among 	class 	members 	that 	while 	one 	division 	within 	ICE 	is 	either
considering 	joining 	or 	affirmatively 	supporting 	an 	effort 	to
eliminate 	a 	removal 	order, 	a 	different 	division 	within 	ICE 	will
not render that effort meaningless by executing that order.
Defendants’ arguments to the contrary are unpersuasive. Their
primary 	argument 	is 	that 	the 	parties 	intended 	the 	settlement
agreement 	to 	protect 	class 	members 	from 	ICE 	enforcement 	actions
only within Boston ERO’s jurisdiction and that Mr. Da Silva chose
to 	relinquish 	that 	protection 	when 	he 	voluntarily 	traveled 	to
Florida. 	The 	Court 	takes 	no 	position 	on 	whether 	the 	settlement
agreement limits ICE’s authority to arrest or detain class members
outside 	of 	Boston 	ERO’s 	jurisdiction, 	an 	issue 	class 	counsel 	has
not raised in this motion. But the duty to consider class members’
requests for, and to presumptively join, JMTRs under the settlement
agreement 	is 	imposed 	on 	ICE 	OPLA 	generally 	and 	is 	not 	restricted
to Boston ERO’s jurisdiction. This national obligation undermines
Defendants’ 	argument 	that 	the 	settlement 	agreement 	offers 	no
protection 	whatsoever 	outside 	of 	Boston 	ERO’s 	jurisdiction. 	And
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given 	that 	the 	clear 	purpose 	of 	the 	JMTR 	provision 	is 	to 	provide
a 	mechanism 	for 	class 	members 	to 	eliminate 	their 	removal 	orders,
the implied covenant of good faith and fair dealing imposes a broad
obligation 	on 	Defendants 	not 	to 	undermine 	that 	process 	by
simultaneously executing the removal orders.
The 	government 	also 	contends 	that 	the 	settlement 	agreement
does 	not 	expressly 	require 	ICE 	to 	stay 	a 	class 	member’s 	removal
while 	he 	pursues 	a 	JMTR 	and 	that 	class 	counsel 	could 	have
negotiated for such a term to be included in the agreement. While
it 	is 	true 	that 	the 	implied 	covenant 	“cannot 	be 	used 	to 	‘create
rights 	and 	duties 	not 	otherwise 	provided 	for 	in 	the 	existing
contractual relationship,’” Axis Ins. Co., 160 F.4th at 10 (quoting
Ayash 	v. 	Dana-Farber 	Cancer 	Inst., 	822 	N.E.2d 	667, 	684 	(Mass.
2005)), 	“a 	party 	may 	breach 	the 	covenant 	of 	good 	faith 	and 	fair
dealing 	without 	breaching 	any 	express 	term 	of 	that 	contract,”
Doe v. 	Brandeis 	Univ., 	177 	F. 	Supp. 	3d 	561, 	612 	(D. 	Mass. 	2016).
To 	protect 	class 	members’ 	reasonable 	expectations 	and 	allow 	them
to 	secure 	the 	fruits 	of 	the 	contract, 	the 	settlement 	agreement
implicitly forbids ICE from removing a class member with a pending
JMTR request before ICE OPLA or a pending JMTR in immigration court
or the BIA.
Accordingly, 	da 	Silva’s 	motion 	to 	enforce 	the 	settlement
agreement 	(Dkt. 	793) 	is 	ALLOWED 	with 	respect 	to 	his 	removal. 	Mr.
da 	Silva 	shall 	not 	be 	removed 	from 	the 	United 	States 	while 	his
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JMTR is pending in immigration court, unless the decision to remove
him 	is 	based 	on 	new 	evidence 	that 	he 	poses 	a 	threat 	to 	public
safety 	or 	national 	security. 	Defendants 	shall 	make 	efforts 	to
expedite 	the 	resolution 	of 	Mr. 	da 	Silva’s 	JMTR 	in 	immigration
court. This order is without prejudice to Mr. da Silva moving for
release from custody. The Court RESERVES ruling on the motion with
respect to the reporting provision in the settlement agreement.
SO ORDERED.
/s/ PATTI B. SARIS__________
Hon. Patti B. Saris
United States District Judge
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