804 F.3d 1060 (9th Cir. 2015), 13-56706, Rodriguez v. Robbins

Docket Nº:13-56706, 13-56755
Citation:804 F.3d 1060
Opinion Judge:Kim McLane Wardlaw, Circuit Judge:
Party Name: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, v. TIMOTHY ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; JEH JOHNSON, Secretary, Homelan
Attorney: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 Thevanes...
Judge Panel:Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges and Sam E. Haddon,[**] District Judge.
Case Date:October 28, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1060

804 F.3d 1060 (9th Cir. 2015)

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,

and

EFREN OROZCO, Petitioner,

v.

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

Nos. 13-56706, 13-56755

United States Court of Appeals, Ninth Circuit

October 28, 2015

Argued and Submitted, Pasadena, California: July 24, 2015.

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.

SUMMARY[***]

Immigration

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.

OPINION

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.1 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.2

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.

I. Background

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.3 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...

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