Gordon v. Lynch, 14-1729

• Decision Date: 21 November 2016
• Docket Number: No. 14-1729,14-1729
• Citation: 842 F.3d 66
• Parties: Clayton Richard Gordon, on behalf of himself and others similarly situated ; Nhan Phung Vu; Gustavo Ribeiro Ferreira; Valbourn Sahidd Lawes; Cesar Chavarria Restrepo, Petitioners, Appellees, Preciosa Antunes, Petitioner, v. Loretta E. Lynch, Attorney General; John Sandweg, Acting Director; Sean Gallagher, Acting Field Office Director; Christopher J. Donelan, Sheriff; Jeh Charles Johnson, Secretary of Homeland Security; Michael G. Bellotti, Sheriff; Steven W. Tompkins, Sheriff; Thomas M. Hodgson, Sheriff; Joseph D. McDonald, Jr., Sheriff, Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

842 F.3d 66

Clayton Richard Gordon, on behalf of himself and others similarly situated ; Nhan Phung Vu; Gustavo Ribeiro Ferreira; Valbourn Sahidd Lawes; Cesar Chavarria Restrepo, Petitioners, Appellees,

Preciosa Antunes, Petitioner,

v.Loretta E. Lynch, Attorney General; John Sandweg, Acting Director; Sean Gallagher, Acting Field Office Director; Christopher J. Donelan, Sheriff; Jeh Charles Johnson, Secretary of Homeland Security; Michael G. Bellotti, Sheriff; Steven W. Tompkins, Sheriff; Thomas M. Hodgson, Sheriff; Joseph D. McDonald, Jr., Sheriff, Respondents, Appellants.

No. 14-1729

United States Court of Appeals, First Circuit.

November 21, 2016

Hans H. Chen , Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Sarah B. Fabian , Senior Litigation Counsel, District Court Section, Office of Immigration Litigation, Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Civil Division, Leon Fresco , Deputy Assistant Attorney General, Civil Division, and William C. Peachey , Director, District Court Section, Office of Immigration Litigation, were on brief, for appellants.

Adriana Lafaille , with whom Matthew R. Segal , American Civil Liberties Union of Massachusetts , Boston, MA, Judy Rabinovitz , New York, NY, Michael Tan , and ACLU Foundation Immigrants' Rights Project were on brief, for appellees.

Matthew E. Price , Emily A. Bruemmer , and Jenner & Block LLP , Washington, DC, on brief for the American Immigration Lawyers Association, amicus curiae.

George N. Lester , Erin Brummer , Victoria Morte , Stephanie S. Pimentel , Boston, MA, Daniel Ruemenapp , and Fragomen, Del Rey, Bernsen & Loewy, LLP on brief for Families for Freedom, Greater Boston Legal Services, Immigrant Defense Project, National Immigrant Justice Center, and University of Maine School of Law Immigrant and Refugee Rights Clinic, amici curiae.

Before Lynch and Selya, Circuit Judges, and Burroughs,^* District Judge.

LYNCH, Circuit Judge.

This court, sitting en banc in Castañeda v. Souza, 810 F.3d 15 (1st Cir. 2015) (en banc), divided evenly over the question of whether the "when ... released" clause in 8 U.S.C. § 1226(c)(1) limits the scope of § 1226(c)(2). More specifically, the question was whether § 1226(c)(2) categorically "bars the Attorney General from releasing certain aliens on bond once they have been placed in immigration custody" only if she takes those aliens into immigration custody " ‘when [they are] released’ from criminal custody." Castañeda, 810 F.3d at 18–19 (opinion of Barron, J.) (alteration in original).

The result of the Castañeda deadlock was a non-precedential affirmance of the district court judgments as to two specific petitioners (but not necessarily of the reasoning underlying those judgments). Those judgments had found unreasonable the government's years-long delay in detaining the specific petitioners at issue (Gordon and Castañeda) and had granted their individual requests for habeas relief, in the form of individualized bond hearings. Seeid. at 38 ; Gordon v. Johnson, 991 F.Supp.2d 258 (D. Mass. 2013) ; Castañeda v. Souza, 952 F.Supp.2d 307 (D. Mass. 2013).

We will recapitulate only briefly the positions of the judges on each side of the Castañeda divide. To reiterate, the disagreement focused on whether § 1226(c)(2) bars bonded release (1) for any alien who committed a crime described in § 1226(c)(1)(A)–(D), regardless of when the alien was taken into immigration custody; or (2) for only those aliens who committed such a crime and were taken into immigration custody within some defined or reasonable period following their release from criminal custody.

Judge Barron, writing for himself and two other members of the en banc court, stated that " Congress's evident intent," Castañeda, 810 F.3d at 36, was for "the cross-reference in § 1226(c)(2) to refer to an alien taken into custody pursuant to the duty imposed by [§ 1226 ](c)(1) as a whole rather than only to an alien described in subparagraphs (A)–(D)," id. at 30.¹ Judge Barron's opinion further concluded that, "at least absent an authoritative agency construction of § 1226(c)(2), ... the word ‘when’ does set forth a time constraint on [§ 1226 ](c) that expires after a reasonable time." Id. at 43.

Judge Kayatta, writing for himself and two other members of the en banc court, disagreed on several grounds. As a matter of statutory interpretation, his opinion maintained that a "reasonable jurist c[ould] read the phrase ‘as described in [§ 1226(c)(1) ]’ as not incorporating into [§ 1226(c)(2) ] the phrase ‘when released.’ " Id. at 58 (opinion of Kayatta, J.). And even if Judge Barron's opinion was right on that first point, Judge Kayatta's opinion went on, it still "d[id] not follow that the mandate of [§ 1226(c) ](2) is also contingent upon prompt compliance with the mandate of [§ 1226(c) ](1)." Id. at 59.

While that particular issue concerning the interpretation of § 1226(c) was on appeal—first to a panel of this court, Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014) (withdrawn panel opinion), and then to the full en banc court—the district court issued two orders. The first order, issued on March 27, 2014, certified the following class of present and future detainees who had committed (or would commit) serious crimes:

all aliens who are or will be detained in Massachusetts under 8 U.S.C. § 1226(c), whom the government alleges to be subject to a ground of removability as described in 8 U.S.C. § 1226(c)(1)(A)–(D), and who were not taken into immigration custody within forty-eight hours (or, if a weekend or holiday intervenes, within no more than five days) of release from the relevant predicate custody.

Gordon v. Johnson, 300 F.R.D. 28, 30 (D. Mass. 2014) (emphasis added).

In the second order, issued on May 21, 2014, the district court further explained its reasoning on class certification, granted summary judgment to the class, and issued declaratory and injunctive relief. Gordon v. Johnson, 300 F.R.D. 31 (D. Mass. 2014). This second order ("the remedial order")—which builds on the class-certification order—is at issue in this appeal.

Consistent with the class-certification order, the remedial order provided relief on a class-wide basis and established a class-wide, bright line rule as to relief, eschewing any attempt to fashion individualized relief or to permit the Board of Immigration Appeals or the Department of Homeland Security ("DHS") to address the appropriate remedy. In pertinent part, the court ordered the following:

• Defendants shall immediately cease and desist subjecting all current and future class members—that is, aliens not detained within forty-eight hours of release from the relevant prior non-DHS custody (or if a weekend or holiday intervenes, within no more than five days)—to mandatory detention under 8 U.S.C. § 1226(c).

• Defendants shall immediately determine the custody of every current class member under 8 U.S.C. § 1226(a) and timely provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. § 1003.19 & 1236.1(d).

• Defendants shall determine the custody of every future class member under 8 U.S.C. [§] 1226(a) and provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. § 1003.19 & 1236.1(d).

Id. at 43.

We held in abeyance the government's appeal of the remedial order, pending our decision in Castañeda, because of the obvious relevance of each appeal to the other. The district court entered the remedial order on May 21, 2014, long before this court expressed its views in the en banc Castañeda opinions. Therein lies the rub.

The government now argues in this appeal that the remedial order is inconsistent with the opinions in Castañeda, along several lines of reasoning: (1) that neither Judge Barron's opinion nor Judge Kayatta's opinion contemplated class-wide, bright line relief of this sort; (2) that 48 hours, a deadline imposed by the district court, is a plainly unreasonable choice for a bright line rule, given the variety of possible reasons for DHS delay in apprehending a § 1226(c) -eligible alien after the moment of release from criminal custody; and (3) that in any event, it is initially within the authority of DHS, and not a federal district court, to determine what constitutes a reasonable time between release from criminal custody and DHS detention.² The government has also argued that 8 U.S.C. § 1252(f)(1) and the Castañeda opinions forbade the district court from issuing a class-wide injunction and thereby interfering with DHS's enforcement of the statute.³

The primary difficulty with the government's post-Castañeda arguments to us is that those arguments have never been presented to the district court, post-Castañeda, nor has the government asked the district court to modify the remedial injunction in light of that decision and other developments. We think it best to leave these matters for the district court to address on remand in the first instance. In reaching this conclusion, we wish to be clear that we take seriously the argument that the logic of both principal opinions in Castañeda is inconsistent with the assumptions underlying the district court's remedial order—both as to deference to agency expertise and as to the need for individualized relief, tailored to the factual circumstances presented.

With respect to agency expertise, the Supreme Court has often reiterated that "the well-reasoned views of the agencies implementing a statute ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ " Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139–40, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ); see alsoINS v. Aguirre–Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ("It is...