Aref v. Garland

At a Glance

Date Filed: 

March 29, 2010

Current Status 

In October of 2020 the D.C. District Court granted Summary Judgment to Defendants, holding the Bureau of Prisons did not violate due process when it designated Kifah Jayyousi to the CMU.  We appealed to the D.C. Circuit Court, and on February 25, 2022 they rejected our appeal.

Co-Counsel 

Weil, Gotshal & Manges LLP, Kenneth A. Kreuscher Law LLC

Client(s) 

Yassin Aref, Kifah Jayyousi, Hedaya Jayyousi, Daniel McGowan, Jenny Synan, Avon Twitty

Case Description 

In 2006 and 2008, the federal Bureau of Prisons (BOP) secretively created two experimental “Communications Management Units” (CMUs) in Terre Haute, Indiana, and Marion, Illinois, designed to isolate certain prisoners from the rest of the prison population and the outside world. Prisoners in CMUs are banned from any physical contact with friends and family, and their access to phone calls and work and educational opportunities are extremely limited. CCR filed Aref v. Holder (now Aref v. Garland), challenging policies and practices at the CMUs, in the U.S District Court for the District of Columbia, on April 1, 2010. The case is part of CCR’s broader efforts to challenge mass incarceration, discrimination, and abusive prison policies.

The plaintiffs in Aref are low- or medium-security prisoners who were designated to the CMU despite their clean or near-spotless disciplinary histories. Not a single one has been disciplined for any communications-related infraction within the last decade, nor for any significant disciplinary offense. Though the creation of the CMUs marked a dramatic change in BOP policy, they were opened without the required public notice and opportunity to comment.

Discovery materials in Aref reveal that incomplete and inadequate procedures have been used to designate and retain prisoners at the CMUs. These procedures have been marked by missing paper trails and political and religious discrimination, amounting to a truly Kafkaesque form of imprisonment. For example, prisoners are not told why they have been transferred to a CMU until after they arrive. Even then, the reasons they are provided are frequently vague, inaccurate, and/or completely false, and they are given erroneous – and even impossible – instructions for earning their way out of a CMU. Policies governing the CMUs are often unclear and interpreted differently by different BOP decision-makers. In addition, 60 percent of CMU prisoners are Muslim, though Muslims comprise only 6 percent of the federal prisoner population.

Since the CMUs were created, the designation and review process has denied prisoners due process at every step. CCR’s lawsuit asserts that designation to a CMU involves serious deprivations and restrictions, and these units must be brought into line with constitutional requirements.

Case Timeline

February 25, 2022
D.C. Circuit Court of Appeals rejects plaintiffs' appeal
February 25, 2022
D.C. Circuit Court of Appeals rejects plaintiffs' appeal
October 18, 2021
D.C. Circuit Court of Appeals holds oral argument
October 18, 2021
D.C. Circuit Court of Appeals holds oral argument
April 7, 2021
Plaintiffs file appeal in D.C. Circuit Court of Appeals
October 13, 2020
Judge grants defendants' motion for summary judgement
October 13, 2020
Judge grants defendants' motion for summary judgement
November 1, 2019
Judge denies motion to dismiss in part
November 1, 2019
Judge denies motion to dismiss in part
D.C. District Court judge agrees with the Center for Constitutional Rights that Kifah Jayyousi’s claims are not moot, because the false information about Mr. Jayyousi created through the BOP’s CMU review and designation procedures could still affect him, and, if those processes violate due process, expungement remains a meaningful remedy. Unfortunately, the judge rules that Yassin Aref’s claims are moot, as his removal from the United States means that the material in question is unlikely to impact him in the future.
May 31, 2019
Defendants file reply in support of their motion to dismiss
May 31, 2019
Defendants file reply in support of their motion to dismiss
May 10, 2019
Plaintiffs oppose motion to dismiss
May 10, 2019
Plaintiffs oppose motion to dismiss
Plaintiffs filed a brief opposing the BOP's motion to dismiss, explaining that their claims are not moot because the Court could still order meaningful injunctive relief if it finds the BOP violated Plaintiffs' procedural due process rights. Specifically, Plaintiffs seek expungement of CMU-related information from their prison files.
April 12, 2019
BOP moves to dismiss case as moot
April 12, 2019
BOP moves to dismiss case as moot
The Bureau of Prisons argues that Plaintiffs' procedural due process claims have been mooted by their release from BOP custody
August 19, 2016
D.C. Circuit Court of Appeals rules in CCR's favor
August 19, 2016
D.C. Circuit Court of Appeals rules in CCR's favor
The district court will now have to consider CCR’s evidence that prisoners sent to CMUs have been denied due process.
March 15, 2016
Oral argument in D.C. circuit
February 12, 2016
CCR files reply brief in Court of Appeals
February 12, 2016
CCR files reply brief in Court of Appeals
January 22, 2016
Government replies to CCR appeal
January 22, 2016
Government replies to CCR appeal
November 4, 2015

Amicus briefs filed in support of prisoners

November 4, 2015

Amicus briefs filed in support of prisoners

Seton Hall University School of Law, Center for Social Justice, the Legal Aid Society of the City of New York, the ACLU, and the ACLU of D.C. file two amicus briefs in support of CCR’s appeal.

October 28, 2015

CCR files appeal brief

October 28, 2015

CCR files appeal brief

CCR asks the court to reverse the district court’s grant of summary judgment to the government on our clients’ procedural due process and retaliation claims.  CCR also asks the court to reinstate Daniel McGowan and Kifah Jayyousi’s damage claims against Chief of the Counter-Terrorism Unit of the BOP Leslie Smith.

May 14, 2015

CCR files notice of appeal to D.C. Circuit Court

May 14, 2015

CCR files notice of appeal to D.C. Circuit Court

March 16, 2015

Court rules against prisoners, grants summary judgment

March 16, 2015

Court rules against prisoners, grants summary judgment

The court denies our procedural due process and retaliation claims, holding that CMUs do not impose an atypical and significant hardship on prisoners. The district court judge held that prisoners have no liberty interest in avoiding placement in CMUs, and thus did not consider our extensive record documenting arbitrary and discriminatory CMU placements and the lack of any meaningful review.

June 18, 2014

CCR opposes government's motion for summary judgment

May 21, 2014

Government files motion for summary judgment and opposition to CCR's motion for summary judgment

February 12, 2013

Government files second motion to dismiss

February 12, 2013

Government files second motion to dismiss

The government moves to dismiss the new claims, a motion that CCR opposes. While the court ultimately rules that the Prison Litigation Reform Act (PLRA) bars claims by prisoners for mental or emotional injury suffered while in custody and therefore dismisses two of the new claims, it allows one new retaliation claim to proceed.
September 5, 2012
CCR files first amended complaint
September 5, 2012
CCR files first amended complaint
Having gathered evidence in discovery substantiating the claims that plaintiffs were sent to and retained at the CMUs in retaliation for their speech, CCR files an amended complaint, bringing new First Amendment retaliation claims.
November 13, 2011
Members of Congress send letter of inquiry to Bureau of Prisons about CMUs
November 13, 2011
Members of Congress send letter of inquiry to Bureau of Prisons about CMUs
September 9, 2011
Government files motion for summary judgment on plaintiff Daniel McGowan's retaliation claim
September 9, 2011
Government files motion for summary judgment on plaintiff Daniel McGowan's retaliation claim

The government files a summary judgment motion, claiming that plaintiff Daniel McGowan has not sufficiently exhausted his administrative remedies before filing his First Amendment retaliation claim and arguing that the claim should therefore be resolved against him. CCR opposes the motion, and the court agrees the claim should move ahead.

March 3, 2011
NPR releases interactive timeline of history of CMUs
March 3, 2011
NPR releases interactive timeline of history of CMUs

NPR's CMU timeline

July 21, 2010

Government files motion to dismiss

July 21, 2010

Government files motion to dismiss

Defendants, who include the attorney general and the Federal Bureau of Prisons (BOP), move to dismiss the claims, a motion that CCR opposes. While the court dismisses some of the claims, it refuses to dismiss the due process and First Amendment retaliation claims, sending the case into discovery.

Spring 2010
BOP opens up period for public comment on CMUs
Spring 2010
BOP opens up period for public comment on CMUs

Shortly after our lawsuit is filed, and four years after the opening of the first CMU, the BOP opens a period for public comment on the CMUs. They are flooded with comments by the public.

March 29, 2010
We file federal lawsuit challenging policies and conditions at CMUs
March 29, 2010
We file federal lawsuit challenging policies and conditions at CMUs

Five CMU prisoners, joined by two family members and represented by the Center for Constitutional Rights , file a federal civil rights lawsuit challenging practices, policies, and conditions at the Communications Management Units (CMUs), alleging an array of constitutional violations at the units, including a denial of due process and First Amendment violations.