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Hernandez v. Sessions

United States Court of Appeals, Ninth Circuit

October 2, 2017

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.

          Argued and Submitted July 11, 2017 Pasadena, California

         Appeal 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.

          John 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.

          Alan 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.

          Peter 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.

          Peter 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.



         The 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 officials.

         The 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 remedies.

         The 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.

         Concurring 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

         "Courts have confronted, in diverse settings, the age-old problem of providing equal justice for poor and rich, weak and powerful alike."[1] 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.

         Deprivations 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 poverty.[2]

         In the 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.[3] The class members nonetheless remain detained because they are unable to afford bond in the amount set by the immigration officials.

         Plaintiffs 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. § 1226(a).[4]

         The 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.

         Because the district court did not abuse its discretion in granting the injunction, we affirm.


         Plaintiffs 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)[5] 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. § 1226(a)(2).

         When a 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)).[6] "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).[7]

         If the 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)).[8]

         At 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 bond.[9]


         A. Plaintiff Hernandez

         Xochitl 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.

         On 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.

         Later 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 proceedings.

         About 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.

         The IJ 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.

         About a 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.

         On 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.

         The 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 monitoring.[10]

         A few 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 appeal.

         B. Plaintiff Matias

         Cesar Matias was born in Honduras on September 9, 1978.[11] 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.

         On 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.

         Seven 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 $3, 000.

         Three 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.

         Eighteen 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."

         Sixteen 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, 000.[12]

         Finally, 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.


         On 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).

         On 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."

         On May 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.

         The 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)).

         Regarding 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' motion.[13]

         Under 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 effect.

         Defendants 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 it.[14]


         "We 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).



         We 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.

         First, 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) do not bar jurisdiction over Plaintiffs' ...

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