Rodriguez v. Robbins

• Decision Date: 28 October 2015
• Docket Number: Nos. 13–56706,13–56755.,s. 13–56706
• Citation: 804 F.3d 1060
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

804 F.3d 1060

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.

Argued and Submitted July 24, 2015.

Filed Oct. 28, 2015.

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, CA; Judy Rabinovitz, Michael K.T. Tan, ACLU Immigrants' Rights Project, New York, N.Y.; Cecillia D. Wang, ACLU Immigrants' Rights Project, San Francisco, CA; Jayashri Srikantiah, Stanford Law School Mills Legal Clinic, Stanford, CA; Sean Ashley Commons, Wen Shen, Sidley Austin LLP, Los Angeles, CA; Steven Andrew Ellis, Goodwin Procter LLP, Los Angeles, CA, for Petitioners–Appellees/Cross–Appellants.

Nina Rabin, University of Arizona College of Law, Tucson, AZ, for Amici Curiae Social Science Researchers and Professors.

James H. Moon, James J. Farrell, Nathan M. Saper, Latham & Watkins LLP, Los Angeles, CA, 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, PA, 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, CA, for Amicus Curiae University of California Davis Law School Immigration Law Clinic.

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.

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 noncitizens 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 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, 121 S.Ct. 2491 ).

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. (q...