Cronen

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.

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,

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).

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

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).

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

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

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

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