ALEJANDRO RODRIGUEZ; ABDIRIZAK ADEN FARAH; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, for themselves and on behalf of a class of similarly situated individuals, Petitioners-Appellees/ Cross-Appellants,
TIMOTHY ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; JEH JOHNSON, Secretary, Homeland Security; LORETTA E. LYNCH, Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officer-in-Charge, Theo Lacy Facility; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JUAN P. OSUNA [*] Director, Executive Office for Immigration Review, Respondents-Appellants/ Cross-Appellees and EFREN OROZCO, Petitioner,
Argued and Submitted, Pasadena, California: July 24,
Appeal from the United States District Court for the Central District of California Terry J. Hatter, Senior District Judge, Presiding. D.C. No. 2:07-cv-03239-TJH-RNB.
The panel affirmed in part and reversed in part the district court's order granting summary judgment and a permanent injunction in a class action lawsuit by non-citizens within the Central District of California challenging their prolonged detentions under civil immigration detention statutes 8 U.S.C. § § 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings or determinations to justify continued detention.
The panel affirmed the district court's permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class's request for additional procedural requirements.
The panel held that subclass members subject to prolonged detention under mandatory detention statutes § § 1225(b) and 1226(c) are entitled to bond hearings, and that subclass members subject to discretionary detention under § 1226(a) are entitled to automatic bond hearings after six months of detention. In an issue this court had not previously addressed, the panel held that the government must provide periodic bond hearings every six months for non-citizens to challenge their continued detention. The panel, however, concluded that no certified class-member is within the § 1231(a) subclass, defined as non-citizens detained pending completion of removal proceedings, and the panel therefore reversed the summary judgment and permanent injunction as to individuals detained under § 1231(a).
The panel remanded for the district court to enter a revised injunction consistent with its instructions.
Sarah Stevens Wilson (argued), Theodore William Atkinson, Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez Reuveni, United States Department of Justice, Washington, D.C., for Respondents-Appellants/Cross-Appellees.
Ahilan Thevanesan Arulanantham (argued), Michael Kaufman (argued), Peter Jay Eliasberg, ACLU Foundation of Southern California, Los Angeles, California; Judy Rabinovitz, Michael K.T. Tan, ACLU Immigrants' Rights Project, New York, New York; Cecillia D. Wang, ACLU Immigrants' Rights Project, San Francisco, California; Jayashri Srikantiah, Stanford Law School Mills Legal Clinic, Stanford, California; Sean Ashley Commons, Wen Shen, Sidley Austin LLP, Los Angeles, California; Steven Andrew Ellis, Goodwin Procter LLP, Los Angeles, California, for Petitioners-Appellees/Cross-Appellants.
Nina Rabin, University of Arizona College of Law, Tucson, Arizona, for Amici Curiae Social Science Researchers and Professors.
James H. Moon, James J. Farrell, Nathan M. Saper, Latham & Watkins LLP, Los Angeles, California, for Amici Curiae National Association of Criminal Defense Lawyers and the Judge David L. Bazelon Center for Mental Health Law.
Sarah H. Paoletti, University of Pennsylvania Law School Transnational Legal Clinic, Philadelphia, Pennsylvania, for Amici Curiae International Law Professors and Human Rights Clinicians and Clinical Programs.
Holly Stafford Cooper, University of California Davis Law School Immigration Law Clinic, Davis, California, for Amicus Curiae University of California Davis Law School Immigration Law Clinic.
Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges and Sam E. Haddon,[**] District Judge.
WARDLAW, Circuit Judge:
This is the latest decision in our decade-long examination of civil, i.e. non-punitive and merely preventative, detention in the immigration context. As we noted in our prior decision in this case, Rodriguez v. Robbins ( Rodriguez II ), 715 F.3d 1127 (9th Cir. 2013), thousands of immigrants to the United States are locked up at any given time, awaiting the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. In 2014, U.S. Immigration and Customs Enforcement (" ICE" ) removed 315,943 individuals, many of whom were detained during the removal process. According to the most recently available statistics, ICE detains more than 429,000 individuals over the course of a year, with roughly 33,000 individuals in detention on any given day.
Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren Orozco (" petitioners" ) represent a certified class of non-citizens who challenge their prolonged detention pursuant to 8 U.S.C. § § 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings and determinations to justify their continued detention. Their case is now on appeal for the third time. After a three-judge panel of our court reversed the district court's denial of petitioners' motion for class certification, and after our decision affirming the district court's entry of a preliminary injunction, the district court granted summary judgment to the class and entered a permanent injunction. Under the permanent injunction, the government must provide any class member who is subject to " prolonged detention" --six months or more--with a bond hearing before an Immigration Judge (" IJ" ). At that hearing, the government must prove by clear and convincing evidence that the detainee is a flight risk or a danger to the community to justify the denial of bond. The government appeals from that judgment. We affirm in part and reverse in part.
On May 16, 2007, Alejandro Garcia commenced this case by filing a petition for a writ of habeas corpus in the Central District of California. Garcia's case was consolidated with a similar case filed by Alejandro Rodriguez, and the petitioners moved for class certification. The motion was denied on March 21, 2008.
A three-judge panel of our court reversed the district court's order denying class certification. Rodriguez I, 591 F.3d 1105. We held that the proposed class satisfied each requirement of Federal Rule of Civil Procedure 23: The government conceded that the class was sufficiently numerous; each class member's claim turned on the common question of whether detention for more than six months without a bond hearing raises serious constitutional concerns; Rodriguez's claims were sufficiently typical of the class's because " the determination of whether [he] is entitled to a bond hearing will rest largely on interpretation of the statute authorizing his detention" ; and Rodriguez, through his counsel, adequately represented the class. Id. at 1122-25. The panel also noted that " any concern that the differing statutes authorizing detention of the various class members will render class adjudication of class members' claims impractical or undermine effective representation of the class" could be addressed through " the formation of subclasses." Id. at 1123.
The government petitioned our court for panel rehearing or rehearing en banc. In response, the panel amended the opinion to expand its explanation of why the Illegal Immigration Reform and Immigrant Responsibility Act (" IIRIRA" ) does not bar certification of the class and, with that amendment, unanimously voted to deny the government's petition. The full court was advised of the suggestion for rehearing en banc, and no judge requested a vote on whether to rehear the matter. See Fed. R. App. P. 35. The government did not file a petition for certiorari in the United States Supreme Court.
On remand, the district court certified a class defined as:
all non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.
The district court also approved the proposed subclasses, which correspond to the four statutes under which the class members are detained--8 U.S.C. § § 1225(b), 1226(a), 1226(c), and 1231(a). The class does not include suspected terrorists, who are detained pursuant to 8 U.S.C. § 1537. Additionally, because the class is defined as non-citizens who are detained " pending completion of removal proceedings," it excludes any detainee subject to a final order of removal.
On September 13, 2012, the district court entered a preliminary injunction that applied to class members detained pursuant to two of these four " general immigration detention statutes" --§ § 1225(b) and 1226(c). Under the preliminary injunction, the government was required to " provide each [detainee] with a bond hearing" before an IJ and to " release each Subclass member on reasonable conditions of supervision . . . unless the government shows by clear and convincing evidence that continued detention is justified based on his or her danger to the community or risk of flight."
The government appealed, and on April 16, 2013, we affirmed. See Rodriguez II, 715 F.3d 1127. We applied the Court's preliminary injunction standard set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), which requires the petitioner to " establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Rodriguez II, 715 F.3d at 1133.
Evaluating petitioners' likelihood of success on the merits, we began with the premise that " [f]reedom from imprisonment--from government custody, detention, or other forms of physical restraint--lies at the heart of the liberty that [the Due Process] Clause protects." Id. at 1134 (alterations in original) (quoting Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)). " Thus, the Supreme Court has held that the indefinite detention of a once-admitted alien 'would raise serious constitutional concerns.'" Id. (quoting Zadvydas, 533 U.S. at 682).
Addressing those concerns, we recognized that we were not writing on a clean slate: " [I]n a series of decisions since 2001, 'the Supreme Court and this court have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.'" Id. (quoting Rodriguez I, 591 F.3d at 1114). First, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court resolved statutory and due process challenges to indefinite detention under 8 U.S.C. § 1231(a)(6), which governs detention beyond the ninety-day removal period, where removal was not practicable--for one petitioner because he was stateless, and for another because his home country had no repatriation treaty with the United States. See id. at 684-86. Drawing on civil commitment jurisprudence, the Court reasoned:
A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to " depriv[e]" any " person . . . of . . . liberty . . . without due process of law." Freedom from imprisonment--from government custody, detention, or other forms of physical restraint--lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), or, in certain special and " narrow" nonpunitive " circumstances," Foucha, supra, at 80, 112 S.Ct. 1780, where a special justification, such as harm-threatening mental illness, outweighs the " individual's constitutionally protected interest in avoiding physical restraint." Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
Id. at 690 (alterations in original). To avoid those " serious constitutional concerns," the Court held that § 1231(a)(6) does not authorize indefinite detention without a bond hearing. Id. at 682, 699. Noting that the " proceedings at issue here are civil, not criminal," id. at 690, the Court " construe[d] the statute to contain an implicit 'reasonable time' limitation," id. at 682, and recognized six months as a " presumptively reasonable period of detention," id. at 701.
Although in dissent, Justice Kennedy, joined by Chief Justice Rehnquist, disagreed with the majority's application of the canon of constitutional avoidance and argued that the holding would improperly interfere with international repatriation negotiations, Justice Kennedy recognized that " both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious." Id. at 721. Justice Kennedy further noted that although the government may detain non-citizens " when necessary to avoid the risk of flight or danger to the community," due process requires " adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large." Id.
Second, in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Court addressed a due process challenge to mandatory detention under 8 U.S.C. § 1226(c), which applies to non-citizens convicted of certain crimes. Id. at 517-18. After discussing Congress's reasons for establishing mandatory detention, namely, high rates of crime and flight by removable non-citizens, id. at 518-21, the Court affirmed its " longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings," id. at 526. Distinguishing Zadvydas, the Court in Demore stressed that detention under § 1226(c) has " a definite termination point" and typically " lasts for less than the 90 days we considered presumptively valid in Zadvydas." Id. at 529. Although the Court therefore upheld mandatory detention under § 1226(c), Justice Kennedy's concurring opinion, which created the majority, reasoned that " a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Id. at 532.
After Zadvydas and Demore, our court decided several cases that provided further guidance for our analysis in Rodriguez II. In Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), we held that the constitutionality of detaining a lawful permanent resident under § 1226(c) for over 32 months was " doubtful." Id. at 1242. " To avoid deciding the constitutional issue, we interpret[ed] the authority conferred by § 1226(c) as applying to expedited removal of criminal aliens" and held that " [t]wo years and eight months of process is not expeditious." Id. We therefore remanded Tijani's habeas petition to the district court with directions to grant the writ unless the government provided a bond hearing before an IJ within sixty days. Id.
We next considered civil detention in the immigration context in Casas-Castrillon v. Department of Homeland Security ( Casas ), 535 F.3d 942 (9th Cir. 2008). There, a lawful permanent resident who had been detained for nearly seven years under § 1226(c) and then § 1226(a) sought habeas relief while his petition for review of his removal order was pending before our court. Id. at 944-48. Applying Demore, we reasoned that § 1226(c) " authorize[s] mandatory detention only for the 'limited period of [the non-citizen's] removal proceedings,' which the Court estimated 'lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal' his removal order to the [Board of Immigration Appeals (" BIA" )]." Id. at 950 (quoting Demore, 538 U.S. at 529). We therefore concluded that § 1226(c)'s mandatory detention provision applies only during administrative removal proceedings--i.e. until the BIA affirms a removal order. Id. at 951. From that point until the circuit court has " rejected [the applicant's] final petition for review or his time to seek such review expires," the government has discretionary authority to detain the non-citizen pursuant to § 1226(a). Id. at 948. We noted, however, that " [t]here is a difference between detention being authorized and being necessary as to any particular person." Id. at 949. Because the Court's holding in Demore turned on the brevity of mandatory detention under § 1226(c), we concluded that " the government may not detain a legal permanent resident such as Casas for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention." Id. at 949.
Soon after, in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), we clarified the procedural requirements for bond hearings held pursuant to our decision in Casas (" Casas hearings" ). In light of " the substantial liberty interest at stake," we held that " due process requires a contemporaneous record of Casas hearings," and that the government bears the burden of proving " by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond." Id. at 1203, 1208. To evaluate whether the government has met its burden, we instructed IJs to consider the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA 2006), in particular " the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses." Singh, 638 F.3d at 1206 (quoting Guerra, 24 I. & N. Dec. at 40).
Finally, in Diouf v. Napolitano ( Diouf II ), 634 F.3d 1081 (9th Cir. 2011), we extended the procedural protections established in Casas to individuals detained under § 1231(a)(6). Id. at 1086. We held that " prolonged detention under § 1231(a)(6), without adequate procedural protections," like prolonged detention under § 1226(a), " would raise 'serious constitutional concerns.'" Id. (quoting Casas, 535 F.3d at 950). To address those concerns, we held that " an alien facing prolonged detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community." Id. at 1092.
In Diouf II, we also adopted a definition of " prolonged" detention--detention that " has lasted six months and is expected to continue more than minimally beyond six months" --for purposes of administering the Casas bond hearing requirement. Id. at 1092 n.13. We reasoned that:
When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before ...