Xochitl Hernandez, for themselves and on behalf of a class of similarly-situated individuals; Cesar Matias, for themselves and on behalf of a class of similarly-situated individuals, Plaintiffs-Appellees,
Jefferson B. Sessions III, Attorney General; James McHenry, Acting Director, Executive Office for Immigration Review; Elaine C. Duke, Acting Secretary, Department of Homeland Security; Thomas D. Homan, Acting Director, Immigration and Customs Enforcement (ICE); David Jennings, Los Angeles Field Office Director of ICE; James Janecka, Warden, Adelanto Detention Facility; Christina Holland, Jail Administrator, Santa Ana City Jail; Carlos Roja, Chief, Santa Ana City Department; Jon Briggs, Captain, Orange County Sheriff's Department; Mike Kreuger, Captain, Orange County Sheriff's Department; Sandra Hutchens, Sheriff, Orange County, Defendants-Appellants.
and Submitted July 11, 2017 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 5:16-cv-00620-JGB-KK Jesus G.
Bernal, District Judge, Presiding
Sherease Rosalyn Pratt (argued), Joseph Hardy, and Adrienne
Zack, Trial Attorneys; Colin A. Kisor, Deputy Director;
William C. Peachey, Director; Chad A. Readler, Acting
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.
Michael Kaufman (argued) and Ahilan T. Arulanantham, ACLU
Foundation of Southern California, Los Angeles, California;
Michael Tan and Judy Rabinovitz, ACLU Foundation
Immigrants' Rights Project, New York, New York; Stephen
B. Kang, ACLU Foundation Immigrants' Rights Project, San
Francisco, California; Matthew E. Sloan, Douglas A. Smith,
Devon L. Hein, Matthew E. Delgado, Michael D. Hidalgo, and
John C. Korevec, Skadden Arps Slate Meagher & Flom LLP,
Los Angeles, California; for Plaintiffs-Appellees.
L. Ewald, Kelly M. Daley, Jasmine M. Owens, and Ned
Hirschfeld, Orrick Herrington & Sutcliffe LLP, New York,
New York; Linda Klein, American Bar Association, Chicago,
Illinois; for Amicus Curiae American Bar Association.
E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New
York, New York; Leon T. Kenworthy and Webb Lyons, Wilmer
Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for
Amici Curiae Nine Retired Immigration Judges and Board of
Immigration Appeals Members.
R. Afrasiabi and Oscar M. Orozco-Botello, Newport Beach,
California; Anne Lai, University of California, Irvine School
of Law-Immigrant Rights Clinic, Irvine, California; for Amici
Curiae University of California, Irvine School of
Law-Immigrant Rights Clinic; Asian Americans Advancing
Justice-Los Angeles; Brandeis Human Rights Advocacy Program;
Center for Gender & Refugee Studies; Coalition to Abolish
Slavery & Trafficking; Columbia Law School
Immigrants' Rights Clinic; Community Legal Services in
East Palo Alto; Cornell Law School's Asylum and
Convention Against Torture Appellate Clinic; Council on
American-Islamic Relations; Immigrant Defenders Law Center,
Los Angeles; Las Crisantemas; Loyola Immigrant Justice
Clinic; National Day Laborer Organizing Network; New York Law
School, Safe Passage Project Clinical Class; Northwest
Immigrant Rights Project; Public Counsel; Rapid Response
Network; Florence Immigrant and Refugee Rights Project;
University of California Davis School of Law Immigration Law
Clinic; University of California, Irvine School of Law
Immigrant Rights Clinic; University of Colorado
Criminal/Immigration Defense Clinic; University of Nevada,
Las Vegas, Immigration Clinic; and Western State College of
Law Immigration Clinic.
H. Kang, Sidley Austin LLP, Palo Alto, California; Sue Wang,
Kelly A. Rosencrans, and Alex Baxter, Sidley Austin LLP, San
Francisco, California; Jayashri Srikantiah, Immigrants'
Rights Clinic, Stanford Law School, Stanford, California; for
Amici Curiae National Association of Criminal Defense Lawyers
and Center for Legal and Evidence-Based Practices.
Before: Stephen Reinhardt, Ferdinand F. Fernandez, and Kim
McLane Wardlaw, Circuit Judges.
panel affirmed the district court's order granting a
preliminary injunction in favor of Plaintiffs, a class of
non-citizens in removal proceedings who are detained under 8
U.S.C. § 1226(a) in the Central District of California
and are unable to afford the bond set by immigration
panel held that 8 U.S.C. §§ 1226(e) and
1252(a)(2)(B), which restrict judicial review of certain
discretionary immigration decisions, did not bar jurisdiction
of Plaintiffs' claim that the discretionary process
itself is constitutionally flawed. The panel also held that
the district court did not err in waiving the prudential
requirement that Plaintiffs exhaust their administrative
panel held that the district court did not abuse its
discretion in granting a preliminary injunction requiring
immigration officials when making bond determinations to,
inter alia, consider (1) financial ability to obtain bond and
(2) alternative conditions of release.
in part and dissenting in part, Judge Fernandez agreed that
the government must consider financial ability and
alternative conditions of supervision, a requirement he found
to be essentially prohibitory. However, Judge Fernandez
dissented as to the breadth of the injunction with respect to
its mandatory terms requiring the government to conduct new
bond hearings within 45 days for those who are currently
detained and requiring the government to consult with class
counsel to develop and agree to guidelines.
REINHARDT, Circuit Judge
have confronted, in diverse settings, the age-old problem of
providing equal justice for poor and rich, weak and powerful
alike." In this case, we reaffirm our commitment
to this principle of fairness for all as embodied in the Due
Process Clause of the Fifth Amendment. Here, it prohibits our
government from discriminating against the poor in providing
access to fundamental rights, including the freedom from
physical restraints on individual liberty.
of physical liberty are a pervasive feature of our current
system of immigration enforcement. While the temporary
detention of non-citizens may sometimes be justified by
concerns about public safety or flight risk, the
government's discretion to incarcerate non-citizens is
always constrained by the requirements of due process: no
person may be imprisoned merely on account of his
present case, the government appeals from the district
court's order entering a class-wide preliminary
injunction in favor of Plaintiffs, a class of non-citizens in
removal proceedings who are detained under 8 U.S.C. §
1226(a) in the Central District of California. The government
has already determined that the class members are neither
dangerous nor enough of a flight risk to require detention
without bond. The class members nonetheless remain
detained because they are unable to afford bond in the amount
set by the immigration officials.
sought injunctive relief in the district court against the
government's policy of failing to require immigration
officials to consider financial circumstances and alternative
conditions of release at bond hearings. Plaintiffs argued
that the policy violated their constitutional and statutory
rights under the Due Process Clause of the Fifth Amendment,
the Fifth Amendment's equal protection guarantee, the
Excessive Bail Clause of the Eighth Amendment, and 8 U.S.C.
district court granted a preliminary injunction requiring
immigration officials when making bond determinations to,
inter alia, consider (1) financial ability to obtain
bond and (2) alternative conditions of release.
the district court did not abuse its discretion in granting
the injunction, we affirm.
are a class of non-citizens detained pursuant to 8 U.S.C.
§ 1226(a) on a bond set by a Department of Homeland
Security (DHS) or Immigration and Customs Enforcement
(ICE) official or an Immigration Judge (IJ) in
the Central District of California. Under § 1226(a), the
Attorney General has "general, discretionary"
authority to detain a non-citizen "pending a decision on
whether the alien is to be removed from the United
States." Casas-Castrillon v. Dep't of Homeland
Sec., 535 F.3d 942, 948 (9th Cir. 2008) (quoting 8
U.S.C. § 1226(a)). Section 1226(a) also authorizes the
Attorney General, in his discretion, to release these
non-citizen detainees "on bond of at least $1, 500"
or "conditional parole." 8 U.S.C. §
non-citizen is detained pursuant to § 1226(a), "the
DHS district director makes an initial custody determination
and may allow the alien's release on bond."
Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th
Cir. 2008) (citing 8 C.F.R. § 236.1(d)). "If the
alien objects to the director's bond determination, he
may request a bond redetermination hearing before an IJ at
any time before the issuance of an administratively final
order of removal." Id. (citing 8 C.F.R.
§§ 236.1(d), 1003.19(c)). At this stage, the burden
is on the non-citizen to "establish to the satisfaction
of the Immigration Judge . . . that he or she does not
present a danger to persons or property, is not a threat to
the national security, and does not pose a risk of
flight." In re Guerra, 24 I. & N. Dec. 37,
38 (BIA 2006).
DHS officer or IJ determines that the non-citizen does not
pose a danger and is likely to appear at future proceedings,
then he may release the non-citizen on bond or other
conditions of release. See Prieto-Romero, 534 F.3d
at 1058; 8 C.F.R. §§ 236.1(d), 1003.19. If the
non-citizen disagrees with the IJ's bond determination or
wishes to challenge the amount of bond set by the IJ, he may
also "appeal the IJ's bond decision to the
BIA." Prieto-Romero, 534 F.3d at 1058 (citing 8
C.F.R. § 236.1(d)(3)).
these initial bond determinations, the government currently
does not require ICE or IJs to consider a non-citizen's
financial circumstances in setting the amount of a bond or
whether non-monetary alternative conditions of release would
suffice to ensure his future appearance. In fact, according
to the declaration of one legal services provider, some IJs
refuse to consider a person's financial circumstances,
even when these circumstances are raised by a detainee's
counsel. In this case, Plaintiffs sought a preliminary
injunction against the government's policy of failing to
require DHS and IJs to consider these factors in setting
Hernandez was born in Mexico in 1976. She immigrated to the
United States in the late 1980s at approximately age 13. She
has five children and four grandchildren, all of whom are
United States citizens. Before her arrest, Hernandez lived
with family members in a rented house in Los Angeles. She
avers that her family has few assets or savings.
February 24, 2016, Hernandez was visiting a friend's
house. Los Angeles Police Department (LAPD) and ICE officers,
who were apparently searching for a suspected gang member,
arrived at the house. Hernandez was detained and taken to an
LAPD station, where she was questioned. She was not charged
with any crime.
that day, Hernandez was transferred to ICE custody, where an
officer questioned her about her identity and immigration
history. Hernandez declared that the ICE officer did not
mention release on bond, nor did he ask her about her
financial circumstances or what bond amount she could afford.
That same day, DHS served her with a Notice to Appear,
charging her with inadmissibility to the United States under
8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the
United States without admission or parole. An ICE officer
determined that Hernandez should be detained without bond at
the Adelanto Detention Center, pending her removal
two weeks later, Hernandez appeared pro se for a
bond hearing in Immigration Court. The IJ did not ask any
questions about her financial circumstances during the
hearing, and Hernandez did not request that he consider her
ability to obtain a bond in assessing the amount to be set.
then issued a written bond decision ordering Hernandez's
release upon payment of a $60, 000 bond. He determined that
Hernandez was not a danger to the community and that a bond
would be sufficient to mitigate any risk of flight. He also
conditioned her release on refraining from entering or coming
within a quarter-mile of three gang-related addresses and
from associating or contacting any member of the La Mirada
street gang. Hernandez avers that she and her family could
not afford to pay a $60, 000 bond.
month later, Hernandez, again appearing pro se,
requested that the IJ reconsider her bond amount. The IJ
denied her request for reconsideration because there were no
"changed circumstances." In addition, the IJ
remarked that he "did consider ability to pay" in
his prior bond determination, but there were
"significant issues" in her case that required bond
in the amount he had set.
August 23, 2016, Hernandez appeared, now with counsel, for a
bond hearing pursuant to Rodriguez III before a
different IJ. Hernandez testified that she and her family had
limited financial resources and indicated that she could only
afford a $1, 500 bond at most. She also expressed her
willingness to be released under alternative conditions, such
as an ankle monitor.
next week, the IJ ordered Hernandez released from custody
upon filing of a $5, 000 bond and enrollment in the
"Alternatives to Detention" program. The IJ's
decision did not discuss Hernandez's ability to obtain a
bond in the established amount. Hernandez was subsequently
released upon filing a bond and was placed on ankle
weeks later, the BIA sustained Hernandez's appeal of her
first $60, 000 bond, vacated the IJ's decision on the
ground that the bond was excessive, and remanded for further
proceedings. The BIA did not address Hernandez's ability
to post bond, despite the fact that she raised that issue on
Matias was born in Honduras on September 9,
1978. Matias is a gay man who fled Honduras to
escape persecution on account of his sexual orientation. He
has resided in Los Angeles since May 2005, when he first
entered the United States. Prior to his detention, he worked
as a hairstylist and in a clothing factory. He avers that he
spent all of his earnings on basic necessities and has no
savings or any other significant assets. At some point, he
suffered a conviction for possession of a controlled
substance and was given a deferred judgment for driving
without a license. He was also arrested twice, but not
convicted, on prostitution charges.
March 29, 2012, Matias was taken into ICE custody and was
interviewed by an ICE officer at a processing center in
downtown Los Angeles. When the ICE officer informed him that
he would be detained, Matias asked whether he could be
released on bond. The officer responded that he could ask the
IJ, without asking Matias any questions about his financial
resources or the amount of bond he could afford. That same
day, ICE issued a Notice to Appear, initiating removal
proceedings against Matias.
months later, Matias appeared for a bond hearing before an
IJ. During the hearing, the IJ did not ask any questions
about Matias's ability to obtain a bond or his financial
circumstances. At the end of the hearing, the IJ set bond at
months after the bond hearing, Matias requested to be
released from detention to retrieve documents that would help
his case. The IJ refused to reduce his bond and stated that
the bond amount was "pretty generous." The IJ also
noted that she could not consider reducing the bond amount
absent a formal motion.
months after denying that release request, the IJ conducted
another bond hearing on Matias's motion. At that hearing,
she stated that Matias's bond was "reasonable"
and ordered that it remain at $3, 000, without inquiring as
to Matias's financial circumstances or indicating that
she considered alternative conditions of release. When asked
by the Immigration Judge if he wanted to appeal, Matias
responded: "No. I prefer to be detained."
months later, the IJ conducted another bond hearing for
Matias. The IJ again did not question Matias about his
financial circumstances, and ordered that bond remain at $3,
more than four years after he was first detained, Matias was
released from ICE custody when a local community
organization, Community Initiatives for Visiting Immigrants
in Confinement, raised enough money for him to post his bond.
April 6, 2016, Plaintiffs filed a class action complaint
seeking habeas, declaratory, and injunctive relief against
the Attorney General, the Director of the Executive Office
for Immigration Review (EOIR), the Secretary of DHS, the
Director of ICE, the Director of the Los Angeles Field Office
of ICE, the Warden of the Adelanto Detention Facility, the
Jail Administrator of Santa Ana City Jail, the Chief of the
Santa Ana City Department, two Captains of the Orange County
Sheriff's Department, and the Orange County Sheriff.
Plaintiffs contended that the government's bond-setting
policies and practices violated: (1) the Due Process Clause
of the Fifth Amendment; (2) their equal protection rights
under the Fifth Amendment; (3) the Excessive Bail Clause of
the Eighth Amendment; and (4) 8 U.S.C. § 1226(a).
April 22, 2016 Plaintiffs filed a Motion for Class
Certification pursuant to Federal Rule of Civil Procedure 23,
seeking to certify a class encompassing "all individuals
who are or will be detained pursuant to 8 U.S.C. §
1226(a) on a bond set by an [ICE] officer or an [IJ] in the
Central District of California."
19, Plaintiffs filed a Motion for Preliminary Injunction
requiring, inter alia, immigration officials to
"consider ability to pay when setting a bond amount and
release on alternative conditions where appropriate." On
June 10, Defendants filed a motion to dismiss for lack of
jurisdiction and failure to state a claim. On August 22, the
district court held a hearing on these three motions.
district court denied Defendants' motion to dismiss,
granted Plaintiffs' motion for class certification, and
granted Plaintiffs' motion for a preliminary injunction.
In response to Defendants' motion to dismiss, the
district court waived the typical requirement that
plaintiffs' exhaust their administrative remedies
regarding the challenged bond determinations because: (1)
Plaintiff's statutory and constitutional claims presented
purely legal questions that did not require development of an
administrative record; (2) waiver of exhaustion would
"not encourage future habeas petitioners to bypass the
administrative scheme" in light of the
"discreteness of the legal questions presented";
and (3) BIA review of Plaintiffs' claims would be futile
because the BIA's position on whether consideration of
ability to post bond is required is "already set."
The district judge also rejected Defendants' arguments
that 8 U.S.C. § 1226(e) and 8 U.S.C. §
1252(a)(2)(B) bar federal courts from exercising jurisdiction
over Plaintiffs' claims, holding that federal courts
retain habeas jurisdiction over constitutional claims and
claims raising questions of law under 28 U.S.C. § 2241.
Finally, the district court rejected Defendants'
arguments that the named Plaintiffs' lacked standing to
seek injunctive relief because they had been released from
custody after the action was filed because standing "is
assessed as of the time an action was initiated and is
unaffected by subsequent developments." The district
court also noted that the named plaintiffs could continue
seeking relief on behalf of the class even after they were
released from custody "because [their] claims are
'transitory in nature and may otherwise evade
review.'" Preap v. Johnson, 831 F.3d 1193,
1197 n.6 (9th Cir. 2016) (quoting Pitts v. Terrible
Herbst, Inc., 653 F.3d 1081, 1090-91 (9th Cir. 2011)).
Plaintiffs' motion for a preliminary injunction, the
district court concluded that Plaintiffs were likely to
succeed on the merits of their challenges under the Due
Process Clause, the Fifth Amendment's equal protection
guarantee, the Excessive Bail Clause, and 8 U.S.C. §
1226(a). The court found that Plaintiffs were likely to
suffer irreparable harm as a result of the deprivation of
their constitutional rights and that the balance of equities
and public interest weighed in favor of granting a
preliminary injunction. Therefore, it granted Plaintiffs'
the terms of the preliminary injunction, ICE and IJs are
required to consider, in all future hearings, a
detainee's financial circumstances in determining the
amount of the bond to be set and to consider whether the
person may be released on alternative conditions of
supervision. The order further requires that the parties meet
and confer in good faith to develop implementation guidelines
and instructions for ICE and IJs, that the government submit
a list of class members to Plaintiffs, and that the
government conduct new bond hearings for current class
members whose bonds were set before the order went into
filed a notice of appeal and applied ex parte for a
stay of all proceedings pending its appeal. After the
district court denied the stay, the government renewed its
application before this court, which granted
review the district court's decision to grant or deny a
preliminary injunction for abuse of discretion." Sw.
Voter Registration Educ. Project v. Shelley, 344 F.3d
914, 918 (9th Cir. 2003) (en banc) (per curiam) (citations
omitted). "Our review is limited and deferential."
Id. The district court abuses its discretion when it
makes an error of law. Id. "We review the
district court's legal conclusions de novo, the
factual findings underlying its decision for clear
error." K.W. ex rel. D.W. v. Armstrong, 789
F.3d 962, 969 (9th Cir. 2015) (citation omitted).
first address whether jurisdiction over Plaintiffs'
claims is proper. The government contends that the we lack
jurisdiction for two reasons: (1) 8 U.S.C. §§
1226(e) and 1252(a)(2)(B) bar federal court jurisdiction over
the claims, and (2) the named Plaintiffs failed to exhaust
their administrative remedies before pursuing relief in
federal court. The government is wrong on both counts.
8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) do not bar
jurisdiction over Plaintiffs' ...