Padilla v. Enforcement

• Decision Date: 27 March 2020
• Docket Number: No. 19-35565,19-35565
• Citation: 953 F.3d 1134
• Parties: Yolany PADILLA; Ibis Guzman; Blanca Orantes ; Baltazar Vasquez, Plaintiffs-Appellees, v. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. Department of Homeland Security; U.S. Customs and Border Protection; United States Citizenship and Immigration Services; Matthew Albence, Acting Director of ICE; Chad Wolf, Acting Secretary of DHS; Mark Morgan, Acting Commissioner of CBP; Ken Cuccinelli, Senior Official Performing the Duties of the Director of USCIS; Marc J. Moore, Seattle Field Office Director, ICE; Executive Office for Immigration Review; William P. Barr, Attorney General, United States Attorney General; Lowell Clark, Warden of the Northwest Detention Center in Tacoma, Washington; Charles Ingram, Warden of the Federal Detention Center in SeaTac, Washington; David Shinn, Warden; James Janecka, Warden of the Adelanto Detention Facility, Defendants-Appellants, and U.S. Department of Health & Human Services, FKA Department of Social Services; Office of Refugee Resettlement; Alex M. Azar II, Secretary of HHS; Scott Lloyd, Director of ORR; Matthew Albence, Acting Deputy Director of ICE; John P. Sanders, Acting Commissioner of CBP; Elizabeth Godfrey, Acting Director of Seattle Field Office, ICE, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

953 F.3d 1134

Yolany PADILLA; Ibis Guzman; Blanca Orantes ; Baltazar Vasquez, Plaintiffs-Appellees,

v. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. Department of Homeland Security; U.S. Customs and Border Protection; United States Citizenship and Immigration Services; Matthew Albence, Acting Director of ICE; Chad Wolf, Acting Secretary of DHS; Mark Morgan, Acting Commissioner of CBP; Ken Cuccinelli, Senior Official Performing the Duties of the Director of USCIS; Marc J. Moore, Seattle Field Office Director, ICE; Executive Office for Immigration Review; William P. Barr, Attorney General, United States Attorney General; Lowell Clark, Warden of the Northwest Detention Center in Tacoma, Washington; Charles Ingram, Warden of the Federal Detention Center in SeaTac, Washington; David Shinn, Warden; James Janecka, Warden of the Adelanto Detention Facility, Defendants-Appellants,andU.S. Department of Health & Human Services, FKA Department of Social Services; Office of Refugee Resettlement; Alex M. Azar II, Secretary of HHS; Scott Lloyd, Director of ORR; Matthew Albence, Acting Deputy Director of ICE; John P. Sanders, Acting Commissioner of CBP; Elizabeth Godfrey, Acting Director of Seattle Field Office, ICE, Defendants.

No. 19-35565

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 22, 2019 San Francisco, California

Filed March 27, 2020

OPINION

THOMAS, Chief Judge:

In this interlocutory appeal, we consider whether the district court abused its discretion in granting a preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained after entering the United States and were found by an asylum officer to have a credible fear of persecution. We conclude that it did not, and we affirm the order of the district court, in part, and direct the district court to reconsider some of the technical aspects of its order.

I

Plaintiffs are a class of noncitizens detained pursuant to 8 U.S.C. § 1225(b). Section 1225(b) provides for "expedited removal" of "arriving" noncitizens at ports-of-entry and inadmissible noncitizens apprehended within the United States who cannot prove that they have been in the United States for more than two years. See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 -01, 35,413–14 (July 23, 2019);¹ see also 8 U.S.C. § 1225(b)(1)(A)(iii)(II). Plaintiffs are in this latter category.

DHS removes noncitizens eligible for expedited removal "without further hearing or review," subject to only one exception. 8 U.S.C. § 1225(b)(1)(A)(i). If the noncitizen indicates an intent to apply for asylum or a fear of persecution, DHS must refer the noncitizen for an interview with an asylum officer. Id. § 1225(b)(1)(A)(ii) ; 8 C.F.R. § 208.30. If the asylum officer determines that the noncitizen's fear of persecution is credible, the noncitizen is referred to full removal proceedings, in which the noncitizen may apply for asylum or other forms of relief from removal. See 8 U.S.C. § 1225(b)(1)(B)(ii) ; 8 C.F.R. §§ 208.30(f), 1003.42(f). Subject to review, if the asylum officer finds no credible fear of persecution, the noncitizen will be removed. 8 U.S.C. § 1225(b)(1)(B)(iii). A supervisor reviews the asylum officer's credible fear determination, 8 C.F.R. §§ 208.30(e)(7), 235.3(b)(2), (b)(7), and a noncitizen may also request de novo review by an immigration judge, 8 U.S.C. § 1225(b)(1)(B)(iii)(III) ; 8 C.F.R. § 1003.42.

If the asylum officer determines at the time of the credible fear interview that the noncitizen has a credible fear of persecution, the noncitizen must "be detained for further consideration of the application for asylum." 8 U.S.C. § 1225(b)(1)(B)(ii). If the asylum officer determines that the noncitizen does not have a credible fear of persecution, the statute requires that the noncitizen be detained during the review process "pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed." Id. § 1225(b)(1)(B)(iii)(IV).

Until July 2019, noncitizens like plaintiffs, who were apprehended within the United States and initially subject to expedited removal, but who established credible fear and were transferred to full removal proceedings, were considered to be entitled to bond hearings before an immigration judge, as noncitizens in full removal proceedings usually are. See Matter of X-K- , 23 I. & N. Dec. 731, 731 (BIA 2005).

In June 2018, Yolany Padilla, Ibis Guzman, and Blanca Orantes filed a class action complaint challenging the government's alleged policy and practice of separating families seeking asylum and delaying credible fear interviews and bond hearings for detained asylum seekers. Plaintiffs moved for class certification and for a preliminary injunction requiring "timely bond hearings that comport with due process."

The district court first certified a nationwide Bond Hearing Class consisting of:

All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under 8 U.S.C. § 1225(b), were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.

Padilla v. U.S. Immigr. & Customs Enf't , No. C18-928 MJP, 2019 WL 1056466, at *1 (W.D. Wash. Mar. 6, 2019).²

The district court also granted the motion for a preliminary injunction, implementing certain procedural requirements for class members’ bond hearings. Specifically, the preliminary injunction required the Executive Office for Immigration Review ("EOIR") to conduct bond hearings within seven days of a class member's request and release any member whose detention without a hearing exceeds that limit. Padilla v. U.S. Immigr. & Customs Enf't , 379 F. Supp. 3d 1170, 1172 (W.D. Wash. 2019). The injunction also provided that in those hearings, the burden of proof must be placed on DHS to demonstrate why the class member should not be released on bond, parole, or other conditions. Id. It required the government to record the bond hearings and produce the recordings or verbatim transcripts upon appeal. Finally, the injunction required the government to produce a written decision with particularized findings at the conclusion of each bond hearing. Id.

Shortly after this order, the Attorney General ("AG") overruled Matter of X-K- , which established that noncitizens similarly situated to the members of the bond hearing class are entitled to bond hearings, as "wrongly decided." Matter of M-S- , 27 I. & N. Dec. 509, 510 (A.G. 2019). The AG interpreted 8 U.S.C. § 1225(b)(1)(B)(ii) to require mandatory detention without bond hearings for asylum seekers who were initially subject to expedited removal but later transferred to full removal proceedings after establishing a credible fear. See Matter of M-S- , 27 I. & N. Dec. at 515–17. Under Matter of M-S- , the only possibility for release available to noncitizens in this category is a discretionary grant of parole by DHS for "urgent humanitarian reasons or significant public benefit" pursuant to 8 U.S.C. § 1182(d)(5). Id. at 516–17. The AG delayed implementation of Matter of M-S- for 90 days in light of its "significant impact ... on detention operations." See id. at 519 n.8.

Plaintiffs then filed a third amended complaint challenging Matter of M-S- on due process grounds and moved to modify the injunction.³ Defendants moved to vacate the injunction.

The district court modified the previously issued preliminary injunction, dividing it into two parts "to facilitate appellate review."

Padilla v. U.S. Immigr. & Customs Enf't , 387 F. Supp. 3d 1219, 1222 (W.D. Wash. 2019). In Part A, the court reaffirmed its previously entered injunctive relief. Id. In Part B, the court essentially maintained the status quo before Matter of M-S- . Id. The court:

[m]odif[ied] the injunction to find that the statutory prohibition at [ § 1225(b)(1)(B)(ii) ] against releasing on bond persons found to have a credible fear and awaiting a determination of their asylum application violates the U.S. Constitution; the Bond Hearing Class is constitutionally entitled to a bond hearing before a neutral decisionmaker (under the conditions enumerated [in Part A] ) pending resolution of their asylum applications.

Id.

The government timely appealed both orders, moved for an administrative stay of the injunction, and a stay pending appeal. A motions panel of this court denied the government's request to stay Part B of the injunction, in which the district court held that class members are constitutionally entitled to bond hearings, but granted the request to stay Part A, which imposed procedural requirements on those bond hearings.⁴

II

We have jurisdiction of this interlocutory appeal under 28 U.S.C. § 1292(a)(1). "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) (citation 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, [and] 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 do not ‘determine the ultimate merits,’ but rather ‘determine only whether the district court correctly distilled the applicable rules of law and exercised permissible discretion in applying those rules to the facts at hand.’ " Saravia v. Sessions , 905 F.3d 1137, 1141–42 (9th Cir. 2018) (quoting Fyock v. Sunnyvale , 779 F.3d 991, 995 (9th Cir. 2015) ).

We also review the scope of the preliminary injunction, such as its nationwide effect, for abuse of discretion. California v. Azar , 911 F.3d 558, 568 (9th Cir. 2018), cert. denied sub nom. Little...